Lawyers Who Want to Try Cases in the Media

May 30, 1993|By DEIDRE NERREAU McCABE and FRANK LANGFITT

For years, when pressed for details about pending cases and interviews with clients, defense attorneys have steadfastly maintained: "I will not try my case in the news media." But in the past few months, several attorneys in the Baltimore area have done exactly that.

When police accused an elementary school principal of drug dealing or when they charged a teacher with fondling a student, the defense attorneys quickly turned to newspapers and televised press conferences to fight the charges in the court of public opinion.

Legal experts disagree about whether the high-profile cases represent a trend, but the issues they raise about the relationship between law and the news media are at the cutting edge of a national legal debate.

Should attorneys wage aggressive media campaigns before trial? Is it a good and fair strategy? Or is it more likely to harm the defendant's case or distort the legal process?

Attorneys across Maryland as well as some of the nation's leading legal minds disagree.

"It's a good tactic under certain circumstances," said Baltimore attorney William H. "Billy" Murphy. "Prosecutors and cops use the press shamelessly. If the atmosphere has been poisoned by the other side, it's important to unpoison it." Defense attorneys often can help the press cover cases "more neutrally" if they go public, he said.

Alan Dershowitz, the flamboyant Harvard Law professor, agreed that using the media is a legitimate counter-strategy against prosecutors who publicly malign his clients.

"We defense lawyers don't use it as a legal strategy, we use it to level the playing field against prosecutors who use it as a strategy," he said. "Almost every defense lawyer I know would rather keep their case out of the press. . . . But I'll be damned if I'm going to defend a client with one hand tied behind my back."

But former Supreme Court Chief Justice Warren Burger sees it differently.

In a speech last month at the University of Tennessee, he said lawyers should never discuss their cases out of court.

"Some might say that such a view makes me old-fashioned," he said. "But I am sure that today an overwhelming majority of lawyers and judges, not to mention laypersons, share that same view."

J. Joseph Curran Jr., Maryland's attorney general, doesn't like the practice of attorneys or prosecutors litigating cases in the media.

"This new way of going on national TV to talk about your case, quite frankly, I'm not sure that it's a well-advised strategy," he said. "I guess we'd all be better served if the litigation were confined to the courtroom."

Attorneys looking for a national standard on the issue are out of luck. Two years ago, the Supreme Court struck down the American Bar Association's rule on trial publicity as too vague. The ABA is still trying to draft a new one.

Monroe Freedman, an ethics professor at Hofstra University Law School who writes a column for Legal Times, sees no problem with defense attorneys waging aggressive media campaigns. "It's entirely appropriate for lawyers to be doing this," he said.

"When an indictment is published, particularly with a press conference, the defendant is severely punished without due process," he said. "If the defendant has to wait years for vindication, his reputation is destroyed without due process."

Local lawyers also said they see no ethical violations in talking to the press, and even allowing their clients to do so, before trial. But almost all agreed taking a public approach is risky at best and should be used sparingly. They worry, however, that several recent cases played out in the public arena signal an increase in the tactic.

"I think it's unfortunate, but I think there will be more and more of these cases," said E. Thomas Maxwell, a Baltimore lawyer who orchestrated an aggressive media campaign last November to defend his client, an Anne Arundel County school principal charged as a drug kingpin.

Mr. Maxwell said he decided to go public with his client -- the first time in 30 years as a defense lawyer -- because: he was convinced the defendant, Patricia A. Emory, was innocent; the prosecution had no evidence against her but was maligning her character; and she would hold up well under press scrutiny.

"This was the perfect case. She was the perfect client," he said. "But I just don't think there's that many perfect cases out there. Sometimes, I think the decision [to go public] is made so lawyers can advance their own interests, not those of their clients."

In Ms. Emory's case, he thinks the strategy worked because "it kept pressure on the prosecution to take a real hard look at this case."

Mr. Dershowitz, who has defended such celebrities as Claus von Bulow, Leona Helmsley and Mike Tyson, said he believes there has been an increase in the use of the media by defense lawyers over the past decade, but he stressed the trend has been brought on by prosecutors.

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