Font Size: 
Commentary: Celebrity Extortion and the Press
Special to Law.com
November 02, 2009
Stroock & Stroock's Joel Cohen
Katherine A. Helm
A lot of our press coverage is bankrupt. Meaning, the press who are supposed to report the news free from bias, "all the news that's fit to print" and all that jazz, often get in with the people they cover and often zealously publish far more than what is fit to print. Instead of fair and balanced coverage, we often get inside jobs and overexposure.
As a result, what is actually happening in a given case, as opposed to what the press covers, is not always so easy to discern. The press can warp our vision of things dramatically, especially when it comes to celebrity scandals. Take the Letterman case -- because no one refers to it by the name of the actual charged defendant, David Letterman's alleged extortionist and TV news producer, Robert Halderman -- as emblematic. The wrangling in this case (legal and otherwise) has been nothing short of a three-ring circus. The lawyers involved, to say nothing of the law itself, have taken a backseat to Letterman's own editorializing -- a crowd-pleasing sport unto itself.
The venerable, but now lame-duck, New York County District Attorney Robert Morgenthau bowed out of the media frenzy early on. Still, undoubtedly at the outset, Morgenthau set about proving, by this high-profile celebrity prosecution of a man astonishingly willing to be paid his extortionate demand by a $2 million personal check (by check?) that the Manhattan DA's office was still the venue to bring high profile cases.
Meanwhile, Letterman -- Morgenthau's crime victim by day and talk show host by night -- used the media to advance his clever strategy of trying to "get ahead" of the story that could come out in court. Letterman supposedly got Morgenthau's OK to break the news, on his own "Late Show," no less. The monologist presented himself as a sincere and sympathetic victim, willing to show his remorse to the nation over his self-described "creepy" behavior. Laughter and applause ensued. As they say, if you can fake sincerity, you've got it made.
As a nonlawyer, Letterman had no ethical or even moral quandary -- assuming he gave Mrs. Letterman and perhaps the other women affected a heads up -- in using the media to spin the bizarre story. After all, he needed to protect his reputation and family, maintain his prized show, and try to avoid paralyzing lawsuits from other potential "victims" of his workplace behavior. Letterman chose to use the media to his advantage, to strengthen his position, because he could. One wonders, though, why Letterman didn't just have his lawyers write Halderman a letter effectively stating: "You go public, and we're going to the DA. Then you can extort me from jail."
Now consider how Halderman's estimable criminal lawyer Gerald Shargel (who, full disclosure, is a friend of one of the authors) has used the media. From day one, Shargel has pointed a gun directly at Letterman's heart, effectively telling the press, but mostly Letterman, and here paraphrasing, "You don't want to see me in court. You don't want to have to answer the questions you'll face on my cross-examination about your rabid sex life in the office." We imagine, without knowing, that Shargel is using the media to try and motivate Letterman to call his "friendly" district attorney and say: "Halderman's not really a bad guy -- he seems a wounded sort. I'm satisfied with the kind of lenient resolution the defendant can live with. Many thanks, Mr. District Attorney, for your energetic handling of this matter."
Retired federal Judge H. Lee Sarokin, in his blog, opines that Shargel has engaged "in a blatant attempt to intimidate the victim by assert[ing] that he would put forth evidence that Letterman had engaged in sexual harassment of his staff members." Accordingly, Sarokin says, Letterman was being "blackmailed" again -- this time by Halderman's lawyer. Assume, though, that Shargel, a law professor of evidence, has a reasoned basis to believe that certain evidence of Letterman's "other" acts of sexual interaction with staffers would be admissible to impeach his credibility. Setting aside the technical aspects, did counsel's tactical use of the press to attempt to undercut Letterman's credibility violate legal ethics?
