February 2000 

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Dealing with the Media
In a High Profile Criminal Case

You have been retained or appointed to represent a criminal defendant in a case over which the news media are in a frenzy. You studied hard in law school and got good grades; you have attended many CLE seminars over the years and have even taught at one or two of them; you have toiled in the courtroom and learned your craft well. You are ready for what is to come, right? Wrong.

Law school and the day-to-day practice of law teach us the things we need to know in the courtroom. When involved in a high-profile case, however, it is the things that go on outside of the courtroom that will catch an attorney off-guard and drive him or her to distraction.

When confronted by the press, how does one protect the rights of a client who in all likelihood is being pilloried in the media? How does one maintain the dignity of the profession and adhere to the Rules of Professional Conduct in the midst of a media feeding frenzy? Given some time to think about it, I am sure most attorneys could come up with a pretty good game plan to address those questions. However, when one is thrown into the maelstrom of a high-profile case, the time to think these issues through is often the time it takes for a reporter to shove a microphone into the unprepared attorney’s face.

Usually, your first court appearance with your high-profile client is a Rule 5 hearing at which bail is set. You’ve done it a thousand times before. This time, however, the courtroom is packed. You particularly notice the incongruous couples: well-dressed and telegenic young men and women paired up with others who, to be kind, are much more casual in appearance. The more casual halves of these odd couples are wearing utility belts containing various items of video equipment. You realize it is the TV reporters and camera people.

The judge and the attorneys are not very convincing in their attempts to act oblivious to the packed spectator section of the courtroom. The prosecutor, sounding as though he is giving the most important speech since the Sermon on the Mount, passionately and with righteous indignation argues that, despite the defendant’s indigency, $1.5 million bail, rather than a mere $1 million, is required in this case. (You never know, the defendant might have gotten in some overtime hours at McDonald’s, enabling him to post that million). Your first impulse is to tell the prosecutor to quit grandstanding, but you restrain yourself.

Then it is the judge’s turn. Rather than simply setting the bail, he first looks out at the sea of reporters and gives a peroration on the seriousness of the case, the threat to public safety, and the serious responsibilities he has to the public. You have never heard the prosecutor or the judge talk like this at a Rule 5 hearing. You have just had your first lesson in the differences between the high-profile case and other cases. The most significant lessons, however, are yet to come.

Terrence M. Walters is a criminal defense attorney practicing with the law firm of Walters & Wintering, Ltd. in Rochester, Minnesota. A veteran of several high-profile cases, he has actually experienced having a satellite uplink truck from a TV station pull into his driveway as he was putting his children to bed.

"Microphones are thrust into your face. Your first reaction is to pull back, but when you do, the mikes move with you. Questions come from all angles"

You leave the courtroom and they are waiting for you. Representatives of newspapers, radio stations, and most menacingly, television stations. What could they want to know? They saw what just happened; the judge set bail at a gazillion dollars. Microphones are thrust into your face. Your first reaction is to pull back, but when you do, the mikes move with you. Questions come from all angles: "How does your client feel?" "Is your client going to testify?" "What is your client’s defense?"

You mentally attempt to review all that you learned in Professional Responsibility class. For a moment, you have a mental picture of yourself sitting in the office of the director of lawyers professional responsibility as a videotape of your impromptu news conference is played as an exhibit in your own disciplinary hearing. At the same time, you wonder if it is possible by talking to the media to soften the public image of your client, perhaps increasing the chances for a fair trial. You also wonder if your words could worsen your client’s image. Could the wrong response to a question result in a change of venue to some outpost on the Canadian border? Should you just hide your face, turn, and hope to outrun the reporters? You can expect to be accosted by the media many more times before the case is completed and how you decide to handle these encounters will be important to your client.

Media inquiries provide an opportunity to counter the negative information about your client that will always dominate coverage in the early stages of a criminal case. The first information the press will have about your client will come from complaints, indictments, and search warrant applications -- all drafted by the prosecutor and none likely to contain much information that is favorable to your case. What can you say without running afoul of the Rules of Professional Conduct? Rule 3.6 prohibits an attorney from:

making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing a pending criminal jury trial.

Rule 25 of the Rules of Criminal Procedure gives further guidance. That rule provides for the extraordinary remedy of excluding the public from pretrial hearings where:

the dissemination of evidence or argument adduced . . . may interfere with an overriding interest including that it may disclose matters that may be inadmissible in evidence at the trial and likely to interfere with a fair trial by an impartial jury.

Clearly, if the attorney says anything about what evidence is anticipated at trial, it should be limited to evidence which he or she knows will be presented and will be admissible. One would never think of discussing inadmissible evidence, e.g., suppressed statements, prior unrelated bad acts, plea negotiations, etc. in the presence of the jury panel. Just as those things should not be discussed in the presence of the jury panel, they should not be discussed in the presence of the media. An attorney should assume that by speaking to the press, he is speaking to the jury pool.

Court proceedings should be the easiest thing in the world for the press to cover. The evidence is all presented in a warm, dry courtroom between 9:00 a.m. and 5:00 p.m., usually in some kind of logical order. The witnesses are thoroughly questioned by the attorneys. There is no need for the reporters to go out in the middle of the night or to stand outside in inclement weather to get the story. If all relevant and admissible evidence is presented in open court, why should the media even need to talk to the attorneys? There are three basic reasons. One reason is to clarify legal jargon used in the courtroom that may be unfamiliar to the reporters. Questions asked for this purpose are usually noncontroversial. Questions asked for the other two reasons, however, can present problems for the attorney.

The second reason for questioning the attorneys is to satisfy the media’s curiosity about matters that are not coming out in the testimony. When being so questioned, the attorney must exercise caution. It may be that the information is not coming out in the testimony because it is not admissible. If an attorney is the source of inadmissible evidence which reaches the jury through the conduit of the press, that attorney may well be in violation of Rule 3.6 of the Rules of Professional Conduct.

The third and perhaps most common type of questioning that is directed at attorneys is questioning about what will happen next. The press can make the attorneys feel like they’re "Chris, Terry, Howie, and J.B." being asked to predict the outcomes of today’s games. Reporters all want to get the "scoop" on each other. If the defendant is going to enter a plea bargain, each reporter wants to be the first to know about it. As any criminal law attorney knows, however, many a defendant has changed his or her mind between the time a plea agreement is "accepted" and the time the plea is to be entered. This isn’t contract law; the defendant can change his or her mind any time before the plea is entered in court. The attorney should not comment on the status of plea negotiations or even confirm that there have been negotiations, until disclosed in open court. To tell the press that your client has agreed to plead guilty is to disseminate information that would be very damaging to your client’s case, should your client change her mind and wish to go to trial.

"Media inquiries provide an opportunity to counter the negative information about your client that will always dominate coverage in the early stages of a criminal case."

"An attorney should assume that by speaking to the press, he is speaking to the jury pool."

There are some basic rules that I believe can help the attorney over the rough spots in dealing with the press. First and foremost, think about what you may wish to say and, perhaps more importantly, what you do not wish to say before facing the press. If you know the media are on the courthouse steps waiting for you, take as much time as you need to collect your thoughts before going outside. Prepare to speak cogently and within the bounds of professional responsibility. Do not feel that every question needs to be answered or that questions need to be answered promptly. (TV stations hate "dead air"; they will edit out pauses.) Remember the advice you always give your clients when they testify: take your time.

If you choose to answer questions about anticipated evidence, answer them in a way that would be appropriate for an opening statement, i.e., a nonargumentative statement about evidence that you believe in good faith will be presented and will be admissible.

Treat the press with civility, regardless of what you may perceive as provocation to do otherwise. You are representing both your client and your profession. A petulant, confrontational attorney does a disservice to both.

If your client is being photographed or videotaped by the media, convince him not to hide his face. Such a picture screams out guilt while at the same time ding little to protect the client’s privacy.

Do not speak "off the record." Assume that anything you say will be reported and measure your words accordingly. There is no more pitiful sight than someone whose only defense to having made an objectionable statement is to say: "I thought we were off the record."

Discuss the matter of press coverage with your client. It may be that it would help your client’s image problems if you could tell the world how he supports his gray-haired, widowed mother. It may also be, however, that your client wants that information kept private. Rule 1.6 of the Rules of Professional Conduct prohibits a lawyer from knowingly revealing a confidence or a secret of a client. "Secret" is a broader term than "confidence" and includes information not directly involved with the legal matter that is the basis of the attorney-client relationship. Rather, "secret" is defined as "other information gained in the professional relationship that the client has requested be held inviolate . . .." Clients in high-profile cases are acutely aware of and sensitive to the publicity their cases attract. Discuss plans for dealing with the press with your client.

We attorneys like to think that we are the most adept creatures on earth at thinking on our feet and speaking extemporaneously. While it is probably true that trial lawyers possess those skills in greater measure than the public at large, it would be an act of hubris to deny the need for forethought before dealing with the press. If you haven’t made mental preparations beforehand, it will be too late when you see a truck equipped with a satellite dish and carrying a reporter hungry for a quote pull into your driveway.