Once again, another trial by media
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Karpman |
Lawyers trying cases in the court of public opinion (like the spectacle of
the Duke University lacrosse rape allegations) are all too common. That case,
with overtones of class, wealth, race, sex and even exotic dancers, has all
the gory details necessary to drive the media into a frenzy. Many say it is
a coincidence that the district attorney involved was re-elected a few weeks
after the initial media blitz, because we all know that government officials
would never pander to the public to obtain electoral success.
Trial by media has been a problem for almost a century. Consider the Scopes
trial (1925), and the Hauptmann case (kidnaping of Lindbergh’s son).
Today, with the instant availability of internet news being beamed into airports
and malls, it is far more prejudicial. The insatiable appetites of the 24-hour
news networks for sizzling stories immunize us to things we would have thought
outrageous a few years ago.
For years, plaintiffs’ lawyers have been accused of masterminding media
blitzes on the eve of trials, demonizing corporations or entire industries,
to enhance their jury verdicts.
California was one of the last states to enact a trial publicity rule (Rule
5-120) in 1995. The State Bar Board of Governors had supported a narrower restriction,
limited to extrajudicial statements that demonstrated a “clear and present
danger” of prejudicing the jury. The negative publicity surrounding the
O.J. Simpson case was one of the factors that caused the California Supreme
Court to enact the rule, using the standard of “substantial likelihood
of materially prejudicing” the public. Therefore, our rule follows the
ABA’s Model Rules.
Some maintain that the district attorney in the Duke case stepped over the
line by stating his personal belief that some players are guilty. Then
you have strategically released e-mails and the pro and con DNA. Prosecutors
I know would never taint their cases with editorial comments. They understand
that our rule has a retaliation clause, 5-120 (C), that permits an attorney
to issue a statement to protect a client from the “substantial undue
prejudicial effect of recent publicity.”
In Gentile v. State Bar of Nevada 501 US 1030 (1991), Dominic Gentile maintained
he had an absolute duty to defend his client and called a press conference
to expose the true criminal culprit. The State Bar of Nevada brought (and sustained)
charges against him for violations of a rule that is very similar to ours.
U.S. Supreme Court Justice Anthony Kennedy wrote that the press conference
was intended to retaliate against “repeated press reports” issued
by the prosecutors. The Supreme Court deemed that the rule was void for vagueness.
Note, there are no reported California cases involving discipline for Rule
5-120.
A little known fact about that case is that by the time it reached the Supreme
Court, Mr. Gentile had been elected to the Nevada Board of Governors. How often
do you get to the U.S. Supreme Court on both sides of a case?
• Diane Karpman, a legal ethics expert, can be reached at 310/887-3900
or at karpethics@aol.com.
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