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WASHINGTON — “We intend to try our case in the courtroom, not in the public or the media,” said Michael Jackson shortly after he was charged with child molestation and weeks before he appeared in a nationally televised interview on “60 Minutes.” The statement was published on Jackson’s Web site, which, according to the singer’s publicist, will enable him to “communicate with his fans and the news media” during the course of his trial. You might wonder why a defendant who has vowed not to try his case in the public or media would enlist the services of a spokesperson, dispatch celebrity friends to speak in his defense, and construct a new Web site to carry his side of the story. Then again, you might not. Chances are, you already understand what Michael Jackson, Martha Stewart, Kobe Bryant and their legions of lawyers understand all too well: A celebrity defendant has no choice. In contrast to mere mortals who become entangled in the criminal justice system, celebrity defendants face greater threats and enjoy substantial advantages. They can choose whether to leverage their fame and mobilize their fans to mitigate those threats and maximize those advantages — or not. But they can’t ignore the unique calculus that applies only to celebrity trials. As the lawyers to the stars fully understand, these considerations must be an essential element of their legal defense strategy. Grizzled courtroom veterans may still shake their heads in disapproval, warning that a defendant’s media statements are likely to “inflame” prosecutors. But these days, it’s clear that nothing excites the passions of an ambitious prosecutor more than the prospect of “nabbing” a celebrity defendant. One good high-profile case can mean fame, fortune and deliverance from backwater obscurity. Where would Santa Barbara District Attorney Thomas Sneddon be without Michael Jackson? Traditionalists say that defendants who do pretrial media interviews risk revealing some essential fact that can be used against them at trial. “I never hold it against a person I am investigating if they want to get their side out and go on TV,” said New York Attorney General Eliot Spitzer after Martha Stewart’s interview with Barbara Walters. “It locks them further into their story and gives me so much more to work with.” Are we to believe that Stewart might have confessed some essential piece of evidence to Walters that prosecutors could not have obtained via the power of subpoena or the process of discovery? Not likely. In her pretrail media appearances, Stewart demonstrated that she couldn’t be pushed off message with a bulldozer. Her defense team chose her public appearances wisely and well. Both Walters and Larry King offered safe media “venues” in which Stewart could remind the public that she is, after all, a human being, not a punch line, a person who has suffered intense public humiliation and immense financial loss months before the first day of her trial, and an American citizen facing a fundamental threat to her personal liberty. Advantage Martha. Although Kobe Bryant’s attorneys are getting a lot of advance credit as brilliant media strategists, it’s Bryant himself who has proven himself the master of the microphone. He is the one with the spectacular jump shot, and the ability to use every game as a platform to rally fans and blunt the attacks of critics. After a recent win against the Denver Nuggets, one sportscaster hailed the Laker as a hero because he had to skip the pregame warm-up due to a court appearance. In locker room interviews, Bryant is artfully burnishing an image that will serve him well at trial. “Nobody’s perfect. Everybody’s going to make mistakes. If people expect you to be perfect they’re terribly wrong, terribly mistaken themselves,” said Bryant after a recent game. “All you can do is live your life to the best of your abilities and try to be a good human being and maximize the blessing that God has given you.” In blurring the line between a sin and a crime, Bryant has established the basis for a brilliant defense strategy. Let any juror without sin cast the first stone. The risk-benefit calculation is simple: When a celebrity can project a public image that is more favorable than the picture being painted by prosecutors, carefully chosen media appearances make a great deal of sense. Stewart’s interviews have underscored the theme that she is being prosecuted, and persecuted, primarily because she is an ambitious, powerful and highly successful woman. Since prosecutors couldn’t make a case against Stewart on the insider trading allegations that started this whole thing, they now have the burden to prove how, and why, Stewart’s trial serves the public interest. Stewart is being charged with securities fraud, conspiracy, making false statements and obstruction of justice. Jury selection in the trial started last week. As Bryant continues to demonstrate his prowess on the basketball court, his National Basketball Association buddies enlighten us about the monumental temptations faced by star athletes. Establishing the fact that beautiful women constantly throw themselves at star athletes is not just a matter of male fantasy — it provides a perspective that may be relevant and germane in a rape case. Traditionalists are likely to point to Jackson’s interview with Ed Bradley as a prime example of why celebrity defendants should never do pretrial interviews. But what Jackson’s performance actually establishes is the dividing line between opportunity and self-destruction. In his “60 Minutes” appearance, Jackson demonstrated what already had been obvious to everyone for a very long time: The real Michael Jackson is much more bizarre than any character prosecutors can concoct. The success of Stewart’s and Bryant’s media strategies depends on making us see them as human beings who may flawed, but are not criminals. But Jackson has been leading his own public parade of odd behavior for more than a decade. At this point, the public might think he was capable of anything. In his attempt to defend his practice of sleeping with children, Jackson invoked the specter of criminals and crimes far greater than the ones with which he is charged. “If you’re going to be a pedophile, if you’re going to be Jack the Ripper, if you’re going to be a murderer, it’s not a good idea. That I am not,” Jackson said on “60 Minutes.” If Jackson’s “60 Minutes” interview did no further damage to his legal position, it’s only because it lacked some new nugget to shock and horrify us. In fairness to Ed Bradley, the bar was already set pretty high. Despite his musical talents, Jackson prefers a starring role as victim in the drama of his own making. Try as he might to blame his father, his managers, the media, or the DA — Jackson is — above all else — his own worst enemy. But why should all of this matter? After all, despite the fact of their celebrity these people are still criminal defendants whose fates will be decided on the evidence by an impartial jury. This concept, though quaint, rests somewhere between ideal and delusion. In a ruling last summer, Judge Lewis Kaplan of U.S. District Court for the Southern District of New York committed to writing a truth that, though self-evident, deserves widespread recognition throughout our system of justice. “The court is well aware that the media, prosecutors and law enforcement personnel . . . often engage in activities that color public opinion, certainly to the detriment of the subject’s general reputation but also, in the most extreme cases, to the detriment of his or her ability to obtain a fair trial. Thus, in some circumstances, the advocacy of a client’s case in the public forum will be important to the client’s ability to achieve a fair and just result in pending or threatened litigation.” We can blame our society, culture and the media, for the fact that we live in an age of trial by public opinion. But a glance back through history shows that, in a sense, we always have. In 1807, Aaron Burr, facing treason charges, protested that unfavorable media coverage would prevent him from getting a fair trail. In 1966, the Supreme Court overturned Sam Sheppard’s murder conviction, ruling that prejudicial media coverage deprived him of due process. Decades before Court TV and the Internet, the majority in the Sheppard case wrote, “Given the pervasiveness of modern communication and the difficulty of effacing prejudicial publicity from the minds of jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused.” The O.J. Simpson trial didn’t start anything; it was merely another chapter in this same history, featuring many more television cameras. Today’s media coverage is once again multiplied by more media outlets. But sheer volume does not alter the fundamental principle that defendants have a right to a public defense before trial and outside the courtroom. The difference between celebrity defendants, and the rest of us mere mortals, is that they can appear in the national media, if and when they so choose. The key question they, and their lawyers, must carefully consider is whether a nationally televised interview will do them, and their legal case, more harm than good. Judy Leon is senior vice president of DecisionQuest, a litigation research and strategic communications firm. She directs the company’s D.C. office and may be reached at [email protected].

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