The criminal justice system is grounded on a basic premise—I dare say, a possibly false premise—that jurors totally obey a judge’s instruction that they should not read, listen or watch anything about the pending case. When deciding a defendant’s guilt or innocence, jurors should only consider what is presented from the witness stand and, after instructions by the judge are given, what her fellow jurors say about the facts presented and the defendant’s guilt.
Assuming, as I do, that jurors do not completely avoid television, newspapers or internet trial coverage while serving, one wonders to what extent talking head or press-quotable lawyers, especially in high profile cases, are doing (albeit unintentionally) to potentially poison jury deliberations. And while journalists themselves, by their reportage, may seriously impact deliberations and therefore trial results, can’t we assume that jurors are likely to zero in on the opinions presented by lawyers whose biographical references describe them as former prosecutors, or defense lawyers?
Now, when I—a reasonably sophisticated consumer of courthouse reportage given my own experience as a lawyer—see who the talking head is, I, along with most readers of this article, am in a relatively unique position to handicap what they will say, and where their biases may lie. Some are former prosecutors who, only recently having left “the Office,” may even slip by saying, “This is what we would typically do.” Others are dyed-in-the-wool defense lawyers who show no particular objectivity when being quoted on a prosecutor’s technique in dealing with a vulnerable witness. Some are academics, who may look at things without practical application, so much so that they might—theoretically—convict their own grandmothers if presented with the right set of facts.
Put aside those of us who read the Law Journal. We are lawyers, generally able to separate the wheat from the chaff of the commentator du jour and, importantly, a very small segment of the jury pool. But what happens when, in high profile cases, talking-head lawyers are quoted in the tabloid press, The New York Times or Wall Street Journal, or any one of the several cable shows that make up our 24-hour news cycle? What is the obligation of lawyers to actually know the facts behind what they’re talking about in any specific case? Is it appropriate—indeed, ethical—for a lawyer to simply wing it, as seems so often to happen with some commentators? Or to opine, without first warning, “I know nothing of the facts or evidence, but here is what I think.”
The Rules of Professional Conduct (NY and ABA Model Rules) are of little help as they do not address the ethics of acting as a third-party commentator on pending cases. Indeed, a lawyer’s duty of competence (at 1.1) runs only to his client. Prohibitions concerning trial publicity (Rule 3.6) address only those cases in which the lawyer is participating. There is however the catch-all: A lawyer shall not “engage in conduct that is prejudicial to the administration of justice” (Rule 8.4).
The ABA Criminal Justice Standards for the Defense Function addresses the issue head on. It provides that attorneys should educate the public and that a defense attorney “uninvolved” in a matter may offer “generalized media commentary.” The Standard warns: “Counsel acting as such … should make reasonable efforts to be well-informed about the facts of the matter and governing law.” 4-1.10(i) (see also, Prosecution Function, 3-1.10(i)).
Commentators Must Be Informed
In a post-OJ Simpson trial series of articles, Professors Erwin Chemerinsky and Laurie Levenson discuss the important role of lawyers in educating the public. But they also raise a host of ethical questions about lawyers acting as commentators and call for lawyers to adopt a voluntary set of rules. “Ethics of Being a Commentator,” 69 Southern Cal. L. Rev. 1301(1996) (Ethics I); 37 Santa Clara L. Rev. 913 (1997); and 50 Mercer L. Rev. 737 (1999).
In 1998, the National Association of Criminal Defense Lawyers (NACDL) did just that. While not in complete agreement with the professors, it created Ethical Considerations for Criminal Defense Attorneys Serving as Legal Commentators, notwithstanding some members’ “strong reservations about suggesting any limitations on public comment by attorneys.” NACDL News, “Ethical Considerations for Legal News Commentators Approved,” Champion 7 (1998). The NACDL rules spotlight counsels’ “special obligation to educate the public” and, as is relevant here, requires its member-commentators to provide competent commentary—they should be “fully informed as to the legal and factual issue(s) under discussion.”
According to Professors Chemerinsky and Levenson, competence is the number one requirement for a legal commentator. Referring to several “painful examples” during the Simpson trial, they conclude, “[a] commentator does harm if he or she misstates the law or misstates the facts of what occurred.” They offer four key requirements: substantive knowledge of the law, practical experience in the courtroom, familiarity with the proceedings, and a willingness to do the research necessary to answer questions. Moreover—and this may be the hardest of all for some of us—a “legal commentator should be prepared to decline an offer to provide legal commentary when a matter is outside his or her experience.” Ethics I at 1319-1321.
Influencing a Sitting Jury
Importantly, “The commentator must realize that his or her role may at times be circumscribed by the overriding societal interest in providing both sides in the case with a fair trial.” Thus, a commentator should exercise caution and should not—through his crystal ball—try to predict the outcome. Ethics I at 1309, 1311.
Having said that, and given my personal belief that juries do not put their heads in the sand while sitting on a case, I asked noted staff writer for The New Yorker and senior legal analyst at CNN Jeffrey Toobin what he thought on the subject. While Toobin is a lawyer with considerable experience as a former prosecutor, he made clear that his role is as a journalist, not a legal commentator. He actually disagreed with my view about the potential influence the press or a lawyer-commentator may have on a jury, but he was clear about the role lawyers—and journalists—play:
I think the proper prism to analyze the issue is through responsible behavior by lawyers and by journalists. I think lawyers and journalists should behave responsibly regardless of how many people are watching. … I guess my own view is that both lawyers and journalists should approach their public statements with a great deal of humility. I don’t ultimately know what evidence is going to be presented at court. I don’t know for sure how a jury is going to respond to it. I think some lawyers like to make very categorical statements about good for the defense, bad for the prosecution, … based on having read a couple articles in the newspaper. And I just think that’s unwise. I don’t think it’s a violation of legal ethics. I don’t think it’s unduly influencing a jury pool. I just think it’s a bad practice.
I also spoke with Mimi Rocah, a former federal prosecutor, Distinguished Criminal Justice Fellow at the Elisabeth Haub School of Law at Pace University and MSNBC Legal Analyst for her thoughts:
Lawyers who speak publicly have an undeniable responsibility to be informed about the facts and law because there is always the potential that a then-serving juror may absorb their commentary. Even more likely, and perhaps of even greater consequence, people who are not currently serving as jurors may hear a talking head’s views on a case or on the workings of the criminal justice system and then apply what they think they learned in public service or, more broadly, in their interactions with the law and law enforcement. In other words, lawyers who speak publicly have a unique potential to influence people’s views not only as jurors, but as litigants and as citizens. Former prosecutors, in particular, must recognize that we represent the public face of government lawyers because those who continue to work in government are extremely limited in what they can and should say publicly. Especially now, when the Department of Justice and law enforcement are under constant attack from high profile voices, I view the former-prosecutor-talking-head as having a unique obligation to inform and educate a curious public about the high ethical standards and motivations of DOJ lawyers working on cases that are so much a part of public discourse.
A Final Comment
As a final comment, but not an afterthought, practicing lawyers who seek to be objective media commentators (and not simply lawyers who opine in favor of the side of the “v” on which they typically practice) must be wary about something else, indeed. Michael Ross, one of the go-to practitioners in town for discipline and ethics matters, solicited by the author for his thoughts, says this: “Lawyers who jump into the public fray with opinions about a case can easily disqualify themselves from being retained later.”
Attorneys should certainly think carefully about that word of advice before they strap on the microphone. After all, their comments might conceivably conflict them from a future representation even totally unrelated to the case currently in the news cycle. What they choose to articulate to the public over a current case might make potential clients wary of retaining them, indeed.
Joel Cohen, a former prosecutor, is of counsel at Stroock & Stroock & Lavan LLP. He is an adjunct professor at Fordham Law School. Dale J. Degenshein, special counsel at Stroock, assisted in the preparation of this article.