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

_SETIWA13.DOTM (DO NOT DELETE) 7/26/2017 12:08 AM

2325

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. MODERN COURTS STRUGGLE WITH THE TENSION BETWEEN

FIRST AMENDMENT AND SIXTH AMENDMENT RIGHTS ............. 2330

B. TRUE-CRIME ENTERTAINMENT MEDIA: HISTORY,

POPULARITY, AND A NEW VERSION OF AN OLD PROBLEM ......... 2333

C. THE MODEL RULES OF PROFESSIONAL CONDUCT PROVIDE

GUIDANCE REGARDING THE PRESERVATION OF SIXTH

AMENDMENT RIGHTS ............................................................ 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. TRUE-CRIME ENTERTAINMENT MEDIA AFFECTS SUSPECTS’

FAIR TRIAL RIGHTS ............................................................... 2340

1. True-Crime Reality Shows Can Generate Jury Prejudice

2341

2. True-Crime Reality Shows Create a Risk that

Witnesses Will Testify Inaccurately ............................ 2344

B. TRUE-CRIME ENTERTAINMENT MEDIA INTERFERES WITH THE

ADMINISTRATION OF JUSTICE ................................................. 2346

C. TRUE-CRIME ENTERTAINMENT MEDIA RISKS SUBJECTING

STATE AND LOCAL GOVERNMENTS TO EXPENSIVE CIVIL LIABILITY

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. RULE 3.6 COMMENT PROPOSAL ............................................. 2353

B. RULE 3.8 COMMENT PROPOSAL ............................................. 2353

C. LEGAL AND POLICY JUSTIFICATIONS FOR ADDING THE

PROPOSED COMMENTS ........................................................... 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 victi ms were bot h killed by blunt for ce

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 int erview 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 . . . .”).

7. Id.

8. Id.