How Criminal Defense Attorneys Can Level the Playing Field When It Comes to the Media
Throughout 2017, I was riveted by developments in three high-profile criminal prosecutions that were covered extensively by this publication and other media outlets in the region: former Philadelphia District Attorney Seth Williams; Amtrak engineer Brandon Bostian (who was at the helm of an Amtrak train on May 12, 2015, when it derailed), and the members of the Penn State fraternity facing criminal charges in connection with the death of sophomore pledge Timothy Piazza. Whenever there were developments in these cases, I consumed as much media coverage as I could. I checked out what people were saying on social media. I even—gasp!—read the online comments sections of certain media outlets.
But my interest was not in the strength of the prosecutors’ legal theories or the legal defenses asserted by the defendants. Instead, I was focused on how the prosecution and the defense attorneys were making their cases publicly. Through the media. With people then sharing those articles and opinion pieces on social media and adding their own commentary. All for the purpose of shaping public opinion about the cases. Why would the two sides do so? To ratchet up pressure on the other side to give up its fight. To create a narrative that clicks with, and stays with, potential jurors well before they become actual jurors. And, likely in the case of the prosecutors, to send a message to the public that engaging in certain kinds of conduct will be prosecuted to the fullest extent of the law.
In my view, high-level criminal prosecutors are among the most media savvy attorneys in practice. They are adept at dominating news cycles and public opinion. In these three cases, the prosecutors and attorneys responsible for bringing criminal charges have lived up to my hype. As is often the case in criminal prosecutions, the news coverage in these cases has seemed to me to be pro-prosecution. This is understandable. Prosecutors are more likely than defense attorneys to talk publicly at-length about their cases. Additionally, news cycles about these cases are more often than not dictated by the prosecution and developments in the prosecution’s cases. As a result, prosecutors are often driving the substance and timing of media reports about criminal cases. Thus, it is not surprising that media coverage of criminal cases tends to include more about the prosecution’s case than the defense’s case. Add to the equation the fact that criminal defense attorneys often have to react quickly and unexpectedly to developments in their clients’ cases, and it is no surprise that prosecutors often win the war in the court of public opinion.
While criminal defense attorneys may start out at a disadvantage in their fight for the court of public opinion, there are a number of strategic and ethical tactics that they can employ to fight back. Doing so could turn the tables in plea negotiations, or even lead to a “not guilty” verdict at trial. Inspired in part by the Williams, Bostian, and Penn State cases, here are four philosophies that should underpin criminal defense attorneys’ efforts to engage the media and the public on behalf of their clients.
The best offense is often as simple as a well-explained defense. Naturally, most media reports about criminal cases tend to grab on to the factual allegations at issue and, because the reports tends to repeat the allegations, they naturally suggest that because someone allegedly did X, they are thus guilty of Y. For example, the allegations about Seth Williams’s gifts that he received and the misuse of a family relative’s income meant that he should be guilty of bribery and fraud. Or that the alleged actions on the part of certain fraternity members the night Timothy Piazza died meant that they should be criminally liable for it. In response, criminal defense attorneys need to do more than issue a general denial or vaguely maintain their clients’ innocence. They need to clearly explain publicly why their clients should not be found criminally liable for the wrongdoing they allegedly did. This is easy to do, provided that a defense attorney is planning on mounting a legal defense. If the legal strategy is to attack the facts, a defense attorney’s public statements should do the same. If the legal strategy is to attack novel theories of law, the public statements should do so too, but in a way that non-lawyers can easily digest. Regardless of the legal strategy, the key element here is that defense attorneys should develop versions of their legal arguments that are designed to be easily understood and consumed by the public.
Find strength in numbers. Prosecutors tend to be at a distinct advantage in cases where there is a large number of defendants, as in the Penn State/Timothy Piazza case. On one side, there is a single district attorney with a team of prosecutors, all of whom are telling a single, cohesive story of alleged wrongdoing on the part of a number of people. On the other side of the case are multiple people, with factual and legal positions that may diverge from each other at certain points, and a number of different attorneys who have different views of the case based on their clients’ positions. Who should reporters be calling when they want comment from the defendants? One or two attorneys? All of them? It is a problem that results in the defendants’ stories not being told as frequently or clearly as the prosecution’s. The solution? Unified public statements on behalf of the defendants. Statements that are specific enough to address the prosecution’s claims, but not so specific as to benefit certain defendants at the expense of others, or get wrapped up in a wordsmithing competition among defense counsel. In addition, one person should be designated as the defense group’s sole contact for the media when reporters have questions or are seeking comment. Even if the questions or comments pertain to a small subset of defendants, reporters would know who to go to when they had such requests. This pooling of resources can help defense attorneys avoid missed opportunities to tell the defense side of the story.
Enlist character witnesses for outside of court. Third-party endorsements have long been a tool of persuasion. They are effective because they are powerful—third parties extolling your or your client’s praises and making your case for you. They are employed in a court of law in a number of ways, for example in the forms of amicus curiae and character witnesses. As to the latter, defense attorneys should determine if there are any third parties who can serve as character witnesses in the court of public opinion. If so, these third parties should be encouraged to speak out strategically. They should not be opining on the credibility of witnesses, or the nature of physical evidence in a particular case. They should, however, demonstrate to the public why a defendant they know and have something positive to say about deserves a reduction in charges, or why the prosecution should not continue with the case. If done effectively in appropriate cases, more and more voices are likely to join the chorus, including prominent and political ones. As a result, the conversation may shift from the alleged wrongdoing to whether there should even be a criminal case.
Make the prosecution play defense. Like judges and elected officials, prosecutors are not beyond reproach. In some instances, prosecutors’ conduct—particularly in the form of extrajudicial statements and activities—deserve to criticized. While this is unlikely to happen in most run-of-the-mill criminal cases, higher-profile cases may provide opportunities for criminal defense attorneys to put prosecutors on the defensive. Are there leaks to the media of non-public information about a defendant coming from prosecutors or investigators? Has the prosecutor in the case been doing media interviews left and right regarding a defendant’s case in a transparent attempt to convict that defendant in the court of public opinion? Has the prosecutor recently been admonished for poor judgment, or publicly accused of wrongdoing? Did the District Attorney recently lose an election and thus will be out of office before the case even goes to trial? Are there people behind the scenes of a criminal case—such as plaintiffs’ attorneys involved in a related civil matter—whose role in the criminal case might turn public opinion against the case? While this philosophy is not one for the timid, a criminal defense attorney’s publication of truthful information about his or her adversaries derived from the public record could put those adversaries on the defensive and change the tone of the public conversation about a criminal prosecution.
I often see a hesitancy on the part of criminal defense attorneys to engage the court of public opinion in a way that rivals prosecutors. For some, it is due to a lack of comfort in doing so. For others, they lack the skills to do so. For these two groups, the solution is easy: hire someone who is both comfortable with, and qualified for, the task. Many other attorneys, however, do not think that they should be doing so either because of ethical concerns or a view that it is not the responsibility of attorneys to take into consideration media interest in, or public perceptions of, their clients’ legal disputes. For this group, there is an even easier solution: take heed of Justice Anthony Kennedy’s comments about criminal defense attorneys speaking publicly about their clients’ cases. As Justice Kennedy said more than 25 years ago in Gentile v. State Bar of Nevada, 501 U.S. 1030, 1043 (1991):
"An attorney’s duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client … A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.”
In many criminal cases, a win in the court of public opinion is a substantial step toward a win in a court of law. Most high-level criminal prosecutors are among the most media-savvy attorneys practicing today, and know how to make their case in the court of public opinion. As the ones bringing charges against criminal defendants, and the ones whose actions shape the legal cases against those defendants, prosecutors often have a procedural advantage when it comes to the media. But criminal defense attorneys are not powerless. They, too, can—and should—use the media and the court of public opinion to their advantage, with the goal of ultimately obtaining favorable legal results for their clients.
Wayne Pollock is the founder and managing attorney of Copo Strategies in Philadelphia, a legal consulting and litigation communications firm helping other attorneys and their clients manage media and public interest in those clients’ legal disputes. He is also a Director at Baretz+Brunelle, a national communications firm. Contact him at 215-454-2180, or @waynepollock_cs on Twitter.