by Josh Marquis, printed in FindLaw.com, January 14, 2004
Prosecutor-Bashing by Criminal Defense Lawyers, Defendants, and Commentators -- And How the Media Aids and Abets It
Popular culture has always loved the criminal defense attorney, usually characterizing them as threadbare but plucky defenders of accused innocents. In contrast, prosecutors have long been depicted as overzealous, politically ambitious, and hell-bent on framing some poor marginalized defendant.
Recall, for instance, "Perry Mason" -- where hapless prosecutor Hamilton Burger managed to remain D.A. despite losing 250 consecutive murder cases featuring innocent defendants. That show began a long tradition leading up to more modern shows such as "The Practice," in which a threadbare but plucky Boston law firm stays afloat by having an inexhaustible supply of innocent criminal clients to defend.
Recently, the news media has only continued this tradition. Prosecutors have been repeatedly chastised for conduct that, at most, amounts to a minor infraction. At the same time, defense attorneys have been aided and abetted in foisting on the public an avalanche of publicity designed to poison potential juries against the prosecutors.
The Kobe Bryant Case: Missing the Real Issue
Consider the Kobe Bryant case. At the moment, the Bryant defense team has succeeded in convincing a judge to open an inquiry into the origin of some T-shirts that may have ordered by a secretary in Hurlbert's office. T-shirts? So what?
Meanwhile, lead defense attorney Pamela Mackey repeatedly disclosed the victim's name in court note once or twice, but six times -- despite warnings from the judge and a law in Colorado that forbids such disclosure.
Sadly, the story that captured the media's attention was -- you guessed it -- the T-shirts. By comparison, commentators were apparently much less concerned over the source of repeated "leaks" of the most private information about the victim.
But which poses a greater risk to impacting the potential jury pool - the purchase of a T-shirt by a secretary in the DA's office, or the public humiliation of Bryant's alleged victim? It is Mackey's misconduct that should have been the media's sensational lead; the T-shirts were a non-issue.
Admirably, Colorado prosecutor Mark Hurlbert -- who found himself thrown into public scrutiny with the Bryant case -- hasn't risen to the bait. Instead, he has been scrupulously terse in his public comments.
The Michael Jackson Case
Meanwhile, the Michael Jackson case presents even more outrageous contrasts.
Jackson's attorney, Mark Geragos -- the lawyer who never met a camera he didn't adore -- holds regular news conferences to denounce his client's accuser, the investigators, and the prosecutors. (Geragos's bank accounts doubtless grow exponentially with each high profile case he handles. The fact that his last actual jury trial resulted in his celebrity client, Winona Ryder, getting convicted of a felony seems to matter little to an adoring press.)
At the same time, talking-head TV is replete with a legion of self-described Jackson family lawyers, Jackson family members and Jackson family friends. And Jackson himself has also been given a podium -- and, reportedly, a paid one. CBS's august "60 Minutes" reportedly paid to allow the accused child molester to further poison the well of public opinion in an interview that turned into what was, in essence, a stylized music video. (CBS has denied the claim.)
Many of the attacks by Geragos and others vilify Jackson prosecutor and Santa Barbara County District Attorney Tom Sneddon, in particular. Yet Sneddon's greatest sin was an occasional jocular comment during one news conference. He has never crossed the lines drawn in the ABA's model rules about pretrial comments by a lawyer.
Compare that to Geragos' scorched earth threat against any witness who dared make an additional accusation against his client.
The reality is that Tom Sneddon had done nothing to seek the spotlight of which Geragos seems so fond. In fact, he had already announced that he was retiring after a long and honorable career defending the public of Santa Barbara County.
Indeed, more generally, the claim that prosecutors are spotlight-seekers who seek to leverage their fame, is almost always entirely off base. The reality is that the job of District Attorney is a lousy springboard for a political career.
After all, while an aggressive prosecutor may win some friends, he or she is also bound to alienate a part of any community. A prosecutor's job is to indict criminals without regard to their prominence or influence in a given community, and that job doesn't inherently lead to popularity -- and it can lead to just the opposite.
Lawyer-Commentators Can Be the Worst Media Culprits
Lawyers, even those not directly involved in a criminal case, are supposed to avoid making comments likely to prejudice potential jurors. But in the Jackson case -- as in other high-profile cases -- such comments have been rife.
Although these commentators seem to hold district attorneys in great contempt, that doesn't stop them from identifying themselves as "Former Prosecutor" in the crawl on the TV screen. (One can only assume that these lawyers who so freely speculate about the facts and tactics of pending cases choose not to describe themselves as defense attorneys because they know in what low regard most "civilians" hold the criminal defense bar.) At the same time that they bash prosecutors, they are not above invoking the respect the office still commands.
Consider the Jackson case. One major television network announced "Breaking News" when a former prosecutor who should know better, Kimberly Guilfoyle-Newsom, revealed that she had magically acquired and listened to an audio tape in which Jackson's accuser's family seems to exculpate the pop star.
Meanwhile, Larry King's show on CNN featured callers from around the world phoning in their adoring support for 45-year old pop star who sees nothing wrong with sharing his bed with a child, and attorney guests and others who seek to bolster Jackson's defense.
The proper role of legal commentators is to interpret events for viewers in the context of the larger legal system -- that is, to act as experts. It is not to express views on the case in an apparent attempt to influence potential jurors.
How Media Circuses Hurt Victims -- and Scare Future Victims
Celebrity has became the great corrupter in our legal system, trumping money as a force capable of truly perverting justice. The public must have confidence that the laws apply equally to people of any station or degree of celebrity (or lack thereof).
That confidence is threatened when the legal profession and the media permit gutter journalism to dominate discussions of criminal cases. These cases have serious implications not only for the defendants, but also for those who would give anything to avoid publicity - the victims. They also have serious implications for the willingness of future victims to come forward, knowing they will only subject themselves to the same media circus they have witnessed so many times.
What lesson do women subjected to date rape, or children sexually exploited by people they trusted, learn from the Roman circus that surrounds high profile criminal cases, especially those involving celebrity defendants? Sadly, the message is to shut up - keep quiet or risk the wrath of lawyers like Geragos.
Fortunately, many victims are brave enough to come forward anyway. And in the end, jurors usually get it right, despite the best efforts of spin doctors.