The Manhattan District Attorney’s Office took a gentle swat at me the other day. It believes I came dangerously close to violating the rules of professional responsibility as to pre-trial publicity by speaking out to the press. The case involves a client accused of promoting prostitution as part of a high-end escort service. I take these prosecutors seriously. But I think they are wrong.
As a general proposition, lawyers aren’t supposed to make statements to the press that can prejudice a pending case. One exception to the rule is that a lawyer can comment to protect a client from substantial prejudice arising from publicity so long as the "recent publicity [was] not initiated by the lawyer or the lawyer’s client."
Good prosecutors don’t give press conferences. They let the their indictments do the talking. Charge a person with a crime. Arrest them. Repeat the allegations in open court. Then let the press do the rest. The presumption of innocence rarely protects a person from the damning effects of press reports. The prosecutor lays out his case in open court; the accusing finger is pointed. The fatal whispering then begins.
What is a defendant to do? His or her neighbors read the papers, watch the news, listen to the gossip. Suddenly, the defendant is greeted with colder, more appraising eyes when appearing in public. Yes, close friends call to offer support, and enemies take the allegations as proof of their darkest suspicions. But the real impact is among those who learn about the defendant for the first time: They assume the charges were brought for a reason. The accused must have done something wrong.
I sat with a client not long ago on the Today Show. The interview was conducted by Matt Lauer. We tried to deflect questions about the trial. Lauer was frustrated. He finally cut to the chase: "Why did you think the state filed the charges?" The subtext was clear. She must have done something wrong, otherwise there would be no prosecution. The accused are presumed guilty. We responded: "You will have to ask the state." But of course he did not need to. The state had already spoken. In court.
Hence the need, and, in my view, the affirmative obligation, to speak out on behalf of a client. We are advocates for folks in need. They are singled out for scorn. It matters not that the prosecution holds no press conference and merely repeats its allegations in open court. In high-profile cases the accusations take on a life of their own. Headlines repeat the state’s claims, characterizing the client. Say nothing and your client is cast in the dark light of the state’s allegations. Most folks don’t pay much attention to the qualifier buried in the text of a new story that the defendant is merely "alleged" to have violated the law. Ask Casey Anthony.
Once a client is accused and the charges are reported widely in the press, I see no harm, no violation of the rules of professional conduct, in fighting fire with fire. Call it re-framing the accused.
My brethren and sisters in Manhattan claim the moral high ground. They suggest that because they have given no press conferences, I should not be able to comment on the case. But that is not what the rules say. A lawyer can and should comment to rescue his client’s reputation from the ravages of hostile pre-trial publicity. The rule does not suggest that the defense can respond only if the prosecution speaks outside of courtroom.
I am not sure why some cases take on lives of their own and go viral. I have a theory about cases involving claims of sexual misconduct. We’re of two minds about sex: We love to condemn the aberrant among us. Why the love? I suspect it is because we identify with the accused. I call it "sexophrenia." Consider H.L. Mencken’s definition of a Puritanism: "The haunting fear that someone, somewhere, may be happy." Condemnation is a form of identification, I say.
The Good Book says that all have sinned and fallen short of the glory of God. Amen to that. I would add a line or two: No one is the sum of their worst moments. Who speaks for the accused? Her lawyer.
Accuse my client in open court. Hold her up to the world’s scorn. Stand by silently as the tabloids have at her. You can do all that and call it a day’s work as a prosecutor. But a defense lawyer can and must do more. To suggest otherwise is to adopt the naif’s view of the world. Those accused of crimes can’t afford the luxury of ignoring the devastating impact of pre-trial publicity holding them out to the world as a criminal.
The prosecution tells its damning story to the world when the charges are unveiled. Requiring a defendant to wait until trial to respond is unfair. The rules of professional conduct recognize that, even if the good folks in the Manhattan District Attorney’s office do not.
Reprinted courtesy of the Connecticut Law Tribune.