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Once again, another trial by media

Diane 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

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