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Criminal defendants and subjects of regulatory investigations find themselves subject to the institutional power of their accusers. Long before their guilt or innocence can be determined in a judicial proceeding, high-profile defendants face “prosecutorial spin” and media examination of their alleged misdeeds. The prosecutorial spin begins in earnest with the perp walk. Whether part of a strategy to deter behavior — as when the IRS prosecutes a handful of prominent tax cheats for the deterrence value — white-collar offenders are publicly paraded in the now-common perp walk. There is little support for the argument that the orchestration of these perp walks is a “legitimate” law enforcement activity; rather, they are primarily designed to embarrass and humiliate the defendant. It seems almost natural in a post-Enron and WorldCom era that a white-collar perp walk is often the first volley in a prosecutor’s onslaught to convict an alleged wrongdoer, or at least exact a favorable plea bargain. While defendants are still mostly at the mercy of the prosecution and regulators, it is interesting to take note of the new, aggressive public stance that defendants are taking to protect their names and business interests. Traditionally, salacious announcements and allegations by law enforcement would be followed by the defendant’s attorney indignantly proclaiming his client’s innocence, but offering no comment other than, “The truth of my client’s innocence will emerge in court.” In some cases, a press conference would be called where the attorney would read carefully crafted statements worded in an attempt to minimize the sting of the allegations and put a different spin on the transpiring events. As the prosecutorial spin hammers away at the defendant’s public image, it becomes critical to balance the process and reach sympathetic audiences wanting to hear from the defendant. But the days of the press conference on the front steps of the courthouse and the “no comment” are quickly coming to an end. The media, the public and prosecutors have become too smart and savvy to accept these canned, impersonal comments from defendants. The image of a $500-an-hour lawyer declaring his or her multi-millionaire client innocent does not inspire compassion, public support or better plea bargain terms. But the Internet is providing defense teams new avenues to communicate their messages, and it is clear the ubiquitousness of the medium has changed the dynamics of the accuser-accused relationship. While law enforcement still has the upper hand — from the general public perception of being on the right side to the constantly repeated accusations and charges — the Internet has changed, and perhaps leveled, the playing field. This change is evident in the recent behavior of some high-profile criminal defendants, including Martha Stewart, Michael Jackson and HealthSouth’s Richard Scrushy, who have used the Internet to supplement their legal defense and public relations strategies. The American criminal justice system has begun to fundamentally shift for everyone involved, and criminal defense lawyers are the ones who must especially take note. As was the mantra of the dot-com days, “The Internet changes everything.” While that may not be true for selling pet food, it certainly is for defending someone accused of a crime. Stewart, Jackson and Scrushy have all launched Web sites explaining their side of the story, combating the countless other Web sites that detail the accusations against them. Rather than have their message buried in a soundbite, these individuals have taken their message directly to the public. Only time will tell whether these sites are effective, but they have quickly become another tool for savvy criminal defense attorneys and their public relations counsel. The Internet, therefore, has become a vehicle to reach sympathetic audiences. There are no journalists acting as gatekeepers, recounting the salacious facts and providing prosecutors ample space to reinforce the accusations. More important, the accused do not have to rely on the media to get their story out. The defendants control the message and, ultimately, how the public perceives them. An aggressive, assertive statement of innocence communicated directly to supporters and the general public can be a powerful tool that demonstrates to the prosecution the vigorous defense that will be mounted. Furthermore, a Web site removes the human element of the interview process. While you can guarantee a Web site will remain on message, and do so mistake-free, even the best-trained interviewee can slip up and cause serious damage not only in the court of public opinion, but even in the courtroom itself. The Internet is also a cheap alternative to reach large audiences. In the past, companies would spend hundreds of thousands of dollars on full-page advertisements to pronounce their innocence. While the print ads performed much the same task of a Web site, ads are often a one-time event that is forever set in stone. Once it runs, you cannot change the message. A Web site, on the other hand, is inexpensive to maintain, can remain active indefinitely and can be edited instantaneously, something incredibly important in the fluid environment of a criminal prosecution. One of the challenges of hosting such a Web site, however, is getting your targeted audience to view your page. Stewart took out a full-page ad in the USA Today to accomplish that goal, while Jackson didn’t market his site with ads. Both Stewart and Jackson’s actions have created an “unintended” consequence: free publicity from journalists, columnists and pundits talking about their strategies and listing their Web addresses. Those stories helped drive the public — some out of concern for their favorite celebrity and others out of curiosity — to the Web sites, where they consume the basic message, “I am innocent.” Stewart and Jackson have rallied and connected with their supporters through the Web and hope to have begun rehabilitating themselves in the court of public opinion. Image-enhancing Web sites are not for everyone. Whereas one of Mark Geragos’ clients, Michael Jackson, has turned to the Internet to tell his side of the story, Scott Peterson has remained silent. Clearly Jackson’s star power helps drive traffic, but the heinousness of the allegations against Peterson must have also played a role in his team’s decision. Counsel must also be aware of issues Web sites could raise in the courtroom. First, the defendants could provide insight into their defense strategy to the prosecution. The defendant and his or her legal and public relations counsel must work together to ensure all external communication does nothing to jeopardize or shed light on the legal strategy. Public comments can also sometimes motivate the prosecution to move forward with a case in a more aggressive manner, and the comments can even alienate some of the defendant’s most ardent supporters. Word choice and messaging become extremely critical and require input from legal counsel, but must come from the defendants themselves and be in their own words. An evasive statement littered with “legalese” that does not get to the heart of the matter may ultimately do more harm than good. The ultimate question, however, is whether the Web sites have a real impact. Undoubtedly, they receive heavy traffic when the charges are first filed, but users begin to dwindle as the media’s coverage of the case begins to lessen. As time drags on, from the preliminary hearing to jury selection and ultimately the trial, Internet users are less likely to revisit the site. Scrushy understands this reality. He consistently updates his Web site with personal messages and rebuttals to news stories he claims are false. Whether Scrushy’s attempts are successful, some Web sites have succeeded despite the pitfalls. More than 16 million visitors have seen Stewart’s Web site since its launch in June, and 80,000 have sent her e-mails directly from the site. With Stewart, Jackson and Scrushy still awaiting or in the middle of trial, the jury is out regarding the Internet’s effectiveness. But it has clearly given defense counsel and public relations experts a new tool to combat the image-damaging prosecutorial spin. Nicholas Gaffney is a vice president with Magnet Communications in San Francisco. He can be reached at 415-345-6477 or [email protected]. David Schaefer is an account supervisor with the company. He can be reached at 415-345-6477 or [email protected].

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