Prosecutors and book deals

James Grippando

The National Law Journal

2013-01-28 00:00:00.0

Casey Anthony is back. The made-for-TV movie, that is, based on the book written by the prosecutor. The tag line for the film — "It was the perfect case to end his career" — brings to mind a question that surely the producers never intended to raise: Do movie deals and big book advances for prosecutors in high-profile capital cases — particularly when the money is enough to retire on — undermine a prosecutor's decision to seek the death penalty?

Short of a declaration of war — which requires the vote of both houses of Con­gress — the power to seek and impose the death penalty is the most awesome and absolute power conferred on any person living under our Constitution. No one would disagree that such decisions should be guided solely by the administration of justice, free from any conflict between a prosecutor's personal interest and public duty. To maintain the integrity of the judicial system, however, more than simple avoidance of an actual conflict of interest is required. Prosecutors should avoid even the appearance that their decisions may be influenced by self-interest.

A prosecutor writing a book is nothing new. The most popular nonfiction work ever published is Helter Skelter, Vincent Bugliosi's book about his prosecution of Charles Manson and his followers for the murder of Sharon Tate. Bugliosi went on to prosecute many more cases, and even ran for state attorney. But times have changed since Bugliosi's book in 1974, and the business of big books and big movies pushes the appearance of self-interest to an entirely different level. After the O.J. Simpson trial, Marcia Clark signed a $4 million book deal — at the time, the fourth highest advance ever paid for a work of nonfiction. She resigned and never prosecuted another case. Her co-prosecutor, Christopher Darden, earned $1.3 million for his book. He also resigned, never to prosecute another case. Recently aired was the Casey Anthony movie, based on a book by Jeff Ashton, a career prosecutor who had decided to retire even before the trial began, having put in 30 distinguished years at the state attorneys' office in Orlando, Fla. He recently reconsidered and won election as the Orange/Osceola county state attorney.

Current rules of ethics hold prosecutors to the same standard as any lawyer in any case, criminal or civil: A lawyer cannot sign a book deal until the case is over. But in a death penalty case, which by its very nature involves questions of life and death, is this standard strict enough? This precise issue came to a head just a few months after the Casey Anthony trial. In a much-publicized murder case, a former Indiana state trooper (David Camm) was convicted of killing his wife and their two children. After the guilty verdict, the prosecutor signed a book deal, but a month later the conviction was overturned on appeal. The prosecutor canceled the book contract in order to maintain his eligibility to retry the case. The defense objected, pointing to emails between the prosecutor and the publisher indicating that the story could be worth more money after the retrial. The court of appeals disqualified him. "Our decision today does not rest solely on whether or not there was a contract in place," the appellate court wrote. The prosecutor "has established a personal agenda to both write this book and ensure that Camm is prosecuted."

If a contract to write a book is not the test, how is a court to determine whether a prosecutor has "a personal agenda to…write [a] book"? From the outset, there was little doubt that the Simpson trial would result in book deals for the prosecutors. The same may be said of the Casey Anthony trial. Does a prosecutor cross the line when he starts thinking about a book? Outlining it? Dreaming about who will play him in the movie? Courts have not provided much guidance, perhaps because in cases like the Casey Anthony trial, public cries of "blood money" are directed overwhelmingly against book deals for the defense.

As the Indiana appellate court noted, however, special concerns arise when ethical precepts relating to book contracts are applied to prosecutors. Chief among them, according to the court, is the concern "that a prosecutor may conduct the prosecution in such a way that does not serve the ends of justice or weakens the public confidence in the fairness of the trial." To put a finer point on it, the danger is that prosecutors will make, or will appear to make, important decisions — including the decision to seek the death penalty — based on self-interest.

For the Indiana appellate court, the polestar guiding the disqualification of a prosecutor was "the public trust in the integrity of the judicial process." Nowhere is that public trust more important than in a capital case. With the entertainment industry's increasing appetite for sensational stories that are "based on" or "inspired by" actual murder trials, nowhere is that public trust more threatened. No one would suggest that prosecutors should be barred from writing books about their most important trials. But prosecutors who sell book rights within days of the verdict need to be more cognizant of the fact that juries are selected from an increasingly cynical society. We may soon find jurors in murder trials asking themselves, "Is the accused as evil as the state says he is…or is the prosecutor just angling for a book deal?"

James Grippando is counsel to Boies, Schiller & Flexner, where he serves in the sports/entertainment and intellectual property group, and a New York Times bestselling author of suspense. His 20th novel, Blood Money (January 2013) , is published by HarperCollins Publishers.