Good TV Makes Bad Justice: How the Rules of Professional Conduct Can Protect Fair Trial Rights

• Author: Joshua Irwin
• Position: J.D., The University of Iowa College of Law, 2017; B.A., The University of Iowa, 2009
• Pages: 2325-2356

Good TV Makes Bad Justice: How the Rules of Professional Conduct Can Protect Fair Trial Rights Joshua Irwin * ABSTRACT: When prosecutors share information related to a criminal investigation with media production companies, and the media companies broadcast that information in the form of true-crime reality shows before the accused has been tried, fair trial rights that serve as a cornerstone to the American judicial system are jeopardized. The history of American jurisprudence regarding balancing the media’s First Amendment rights with criminal defendants’ Sixth Amendment rights has been shaped in large part by cases concerning requests for restraints upon news agencies. Courts typically view these restraints skeptically, which reflects the high value this nation places on the contributions a free press makes to democracy. The development of true-crime reality shows necessitates a different approach because of risks of hindering fair trial rights, interfering with the administration of justice, and potentially subjecting police and local governments to civil liability. Arguably, the Model Rules of Professional Conduct and their various state counterparts already prohibit attorneys and prosecutors from providing information to these true-crime television companies, but shows that clearly rely on inappropriate disclosures continue to pervade the airwaves. This Note proposes that comments should be added to the Model Rules to make clear that sharing sensitive information that will be broadcast in true-crime reality shows prior to trial will not be tolerated and will lead to attorney sanctions. * J.D., The University of Iowa College of Law, 2017; B.A., The University of Iowa, 2009. I would like to thank everyone who helped during the writing process, especially the writers and editors of Volumes 101 and 102 of the Iowa Law Review , for their invaluable assistance. Special thanks to the attorneys and staff of the Johnson County, Iowa office of the State Public Defender, for showing me what zealous advocacy looks like. 2326 IOWA LAW REVIEW [Vol. 102:2325 I. INTRODUCTION ........................................................................... 2327 II. TRUE-CRIME ENTERTAINMENT MEDIA THREATENS TO SKEW THE BALANCE BETWEEN THE FIRST AND SIXTH AMENDMENTS ............................................................................. 2330 A. M ODERN C OURTS S TRUGGLE WITH THE T ENSION B ETWEEN F IRST A MENDMENT AND S IXTH A MENDMENT R IGHTS ............. 2330 B. T RUE -C RIME E NTERTAINMENT M EDIA : H ISTORY , P OPULARITY , AND A N EW V ERSION OF AN O LD P ROBLEM ......... 2333 C . T HE M ODEL R ULES OF P ROFESSIONAL C ONDUCT P ROVIDE G UIDANCE R EGARDING THE P RESERVATION OF S IXTH A MENDMENT R IGHTS ............................................................ 2337 1. Model Rule of Professional Conduct 3.6: “Trial Publicity” ...................................................................... 2337 2. Model Rule of Professional Conduct 3.8: “Special Responsibilities of a Prosecutor” ................................ 2338 III. PROSECUTORS AND POLICE WHO PARTICIPATE IN REALITY ENTERTAINMENT MEDIA ARE JEOPARDIZING DEFENDANTS’ FAIR TRIAL RIGHTS, INTERFERING WITH THE ADMINISTRATION OF JUSTICE, AND SUBJECTING STATE AND LOCAL GOVERNMENTS TO POTENTIAL CIVIL LIABILITY ......................... 2340 A. T RUE -C RIME E NTERTAINMENT M EDIA A FFECTS S USPECTS ’ F AIR T RIAL R IGHTS ............................................................... 2340 1. True-Crime Reality Shows Can Generate Jury Prejudice 2. True-Crime Reality Shows Create a Risk that Witnesses Will Testify Inaccurately ............................ 2344 B. T RUE -C RIME E NTERTAINMENT M EDIA I NTERFERES WITH THE A DMINISTRATION OF J USTICE ................................................. 2346 C. T RUE -C RIME E NTERTAINMENT M EDIA R ISKS S UBJECTING S TATE AND L OCAL G OVERNMENTS TO E XPENSIVE C IVIL L IABILITY 2348 IV. COMMENTS SHOULD BE ADDED TO MODEL RULES OF PROFESSIONAL CONDUCT 3.6 AND 3.8 TO MAKE CLEAR THAT SHARING INFORMATION WITH TRUE-CRIME REALITY SHOW PRODUCTION COMPANIES CONSTITUTES AN ETHICAL VIOLATION .................................................................................................... 2352 A. R ULE 3.6 C OMMENT P ROPOSAL ............................................. 2353 B. R ULE 3.8 C OMMENT P ROPOSAL ............................................. 2353 C. L EGAL AND P OLICY J USTIFICATIONS FOR A DDING THE P ROPOSED C OMMENTS ........................................................... 2354 V. CONCLUSION .............................................................................. 2355 2017] GOOD TV MAKES BAD JUSTICE 2327 I. INTRODUCTION In the exciting conclusion of an episode of Cold Justice , a reality show about the investigation of cold case murders, the hosts of the show meet with the County Attorney of Jasper County, Iowa to discuss details the hosts and their investigators have discovered through analysis of the crime scene and interviews with witnesses. 1 The focus of the discussion is a woman named Theresa “Terri” Supino, whom the hosts believe murdered her estranged husband Steven and his girlfriend Melisa in 1983. 2 The County Attorney concludes this discussion by declaring that, as a result of the show’s investigation, he is ready to indict Supino, who was interviewed by one of the show’s hosts and a police officer earlier in the episode. 3 Cameras roll as the hosts, along with the county sheriff, meet with the victims’ teary-eyed family members and inform them of the pending prosecution. 4 The show airs footage of police escorting a handcuffed Supino out of a building, and then displays her mugshot. 5 Cold Justice ’s cameras were notably absent at the conclusion of her trial one year later, when she was acquitted of all charges. 6 While Cold Justice was nowhere to be seen, the local press was there to capture her statement: “[T]hey wouldn’t air the show unless they had someone in custody, and that somebody was me.” 7 At the end of this interview, Supino forcefully declared, “I’m going to sue somebody.” 8 Despite the shortcomings of the Cold Justice Supino investigation, the show later returned to Iowa. On July 17, 2015, cameras were again rolling when Steve Klein was arrested in Johnson County, Iowa, following a Cold Justice investigation of the 1995 murder of Klein’s 1 . Cold Justice: Copper Dollar Ranch (TNT television broadcast Mar. 28, 2014). TNT cancelled Cold Justice in 2015, but in 2017 the Oxygen Network ordered new episodes as part of its programming shift to solely true-crime content. Cynthia Littleton, Oxygen Surrenders to Crime Wave in Programming Strategy Revamp , VARIETY (Feb. 1, 2017, 9:00 AM), http://variety.com/2017/ tv/news/oxygen-cold-justice-dick-wolf-crime-revamp. 2 . Cold Justice: Copper Dollar Ranch , supra note 1. The victims were both killed by blunt force trauma at Steven’s trailer, which was parked in an area known for high drug activity, on March 3, 1983. Id. During the show, the hosts allege that Supino wanted to get back together with her husband and felt betrayed by his involvement with another woman. Id. This theory was developed based on statements made by Supino’s brother Tim. Id. Supino states during an interview that this is not true, and that she never had any intentions other than divorce. Id. 3 . Id. During the interview, the show’s primary host Kelly Siegler, a former Texas prosecutor, states during a voiceover, “In my 22 years of all the criminal cases that I have prosecuted, I have never seen a suspect talk so willingly, so much, and say such crazy things.” Id. Siegler was referring to alleged contradictions between Supino’s statements and those of witnesses, as well as Supino’s own prior statements to police. See id. 4 . Id. 5 . Id. 6 . See Grant Rodgers, Supino Acquitted, Says: ‘Leave Me the Hell Alone’ , DES MOINES REG. (Feb. 20, 2015, 2:28 PM), http://www.desmoinesregister.com/story/news/crime-and-courts/2015/ 02/20/supino-murder-trial-verdict/23753543 (“Supino’s arrest was featured in the final scenes of the episode . . . .”). 8 . Id. 2328 IOWA LAW REVIEW [Vol. 102:2325 girlfriend Susan Kersten. 9 The episode about Klein aired on August 21, 2015. 10 On February 17, 2017, Klein entered an Alford plea 11 to charges of “willful injury causing serious injury, second-degree arson, and suborning perjury,” and was sentenced to up to fifteen years in prison. 12 Terri Supino is not the only person to receive an acquittal after having her criminal investigation and eventual indictment recorded and nationally broadcast in a reality show format. Ohio resident Steven Noffsinger was the subject of another Cold Justice investigation that resulted in his arrest in 2014. 13 He was eventually acquitted. 14 Joshua Singletary of Tennessee also had his murder investigation broadcast on Cold Justice and was eventually acquitted. 15 Both men have lawsuits pending against the show’s producers and hosts, as well as the police departments that shared information with the show and ultimately arrested them. 16 9. Lee Hermiston, Newly Disclosed Phone Call Leads to Break in 20-Year-Old Johnson County Murder Case , GAZETTE (Aug. 21, 2015, 10:17 PM), http://www.thegazette.com/subject/news/ public-safety/defense-attorney-demands-more-evidence-in-20-year-old-johnson-county-murder-20150821. In 1995, Kersten’s body was discovered in a burning car; a medical examiner subsequently concluded that she had not been killed by the fire, but by blunt force trauma to the head. Id. Klein was designated a “person of interest” in the 1995 investigation, but was not arrested at that time. Id. The Cold Justice episode about Klein, titled “Up in Flames,” followed investigators as they examined the important locations involved in the case and spoke to witnesses. Cold Justice: Up in Flames (TNT television broadcast Aug. 21, 2015). The supposed break in the case came when a witness described a phone call with Kersten the night of...