The Rich and Famous Get Star Treatment, Creating the Appearance of a Two-Tiered Court System
Posted Jan 25, 2005 4:06 AM CDT
By John Gibeaut
Deputy District Attorney Gerald McM. Franklin needed just two sentences to wrap up his view of the public’s right to know the details of the child molestation case against Michael Jackson. He used them to ask the California Supreme Court to maintain the fog of secrecy that has enveloped the pretrial proceedings.
“Despite the perhaps inevitable leaks, the public knows little more about the facts of this case than that Michael Jackson has been indicted on serious charges and that a jury will be asked to consider the evidence that may be presented to it and determine his guilt or innocence based upon that evidence,” the Santa Barbara County prosecutor wrote in spring 2004. “And that’s the way it should be.”
Similarly, in Manhattan, federal Judge Miriam Goldman Cedarbaum of the Southern District of New York wasted no words in setting a limit on the public’s entitlement to news about Martha Stewart. She banned reporters from jury selection for Stewart’s trial last year on charges of lying about a stock sale.
“We have had a remarkable amount of extraordinary press effort to treat many aspects of the case which have nothing to do with the trial of the case, or the merits of the case or what will the evidence be, because there seems to be—and I do not say this critically—an extraordinary interest quite beyond the public’s right to know.”
That’s tough talk, for sure. Too bad it takes dead aim at rights older than the Constitution, say lawyers who represent news organizations attempting to gain access to celebrity trials. Nevertheless, media lawyers say, trial courts from coast to coast increasingly perform crude yet effective “celebrity First Amendment carve outs,” as one lawyer calls them, to shield the rich and famous and their travails from public examination. They say the practice of secret justice casts a pall over the system much longer than the handful of celebrity trials that enrapture the public at a given time.
Courts claim they need the cover of darkness to solve the dilemma that regularly arises when the First Amendment rights of the press and public to attend criminal proceedings nudge up against a defendant’s Sixth Amendment right to an impartial jury unaffected by publicity surrounding the case.
Trial judges who authorize—sometimes on a wholesale basis—sealed pleadings, closed courtrooms, free ranging gag orders on participants and clandestine jury selection say it’s the only way they can ensure a defendant’s fair trial right against an onslaught of publicity that could inject bias into the jury pool. At least, that’s what they say if the defendant happens to be a Michael Jackson, a Martha Stewart, a Kobe Bryant or some other household idol.
Besides creating the appearance of a two tiered justice system—one for celebrities and the other for everyone else—media advocates say today’s unmatched effort at secrecy cheats the public out of its First Amendment right to observe and criticize the system through its surrogates in the press. Ideally, public oversight is supposed to keep the system honest.
“This is a very troubling time,” says Kenneth A. Paulson, a lawyer and editor of USA Today. “We’re seeing a growing number of judges who opt to seal records rather than engage in any meaningful balancing of First Amendment and Sixth Amendment rights. It’s the easy way out.”
Maybe so. But many lawyers on both sides of criminal cases say it’s the best, if not the only way out in the face of ubiquitous coverage.
From Christian Brando to O.J. Simpson, Los Angeles criminal defense lawyer Robert L. Shapiro used to consider it practically a duty to speak with reporters in order to deflect attention from bad publicity that often followed his clients. “My philosophy has changed,” says Shapiro, who no longer discusses his cases in the news and doesn’t necessarily view restricting the press as a bad thing. Shapiro says he soured on talking after changing approaches to trial coverage post Simpson convinced him that his clients did not stand much of a chance of getting a fair shake.
“From my perspective, the first reality based TV show was the Simpson trial,” Shapiro says. “Since then, it’s become a trend. The trend is that the networks are taking these trials and turning them into reality TV. The press is pushing these cases to the edge by making them into sporting events and reporting them as if they were sporting events instead of very serious trials.”
Shapiro says his new zipped lip policy already has cost him one celebrity client. He says legendary record producer Phil Spector fired him for refusing to publicly discuss outside court a murder charge against Spector beyond a two sentence prepared statement predicting the producer’s acquittal in the death of B movie actress Lana Clarkson. Y
et other defense lawyers and some prosecutors warn that courts conducting cases in the dark can breed only contempt for the institutional players who work in the system, including judges, lawyers and journalists. Some lawyers fret that judges who try to maintain pristine venires under blackout conditions actually risk a boomerang effect that could signal their own lack of confidence in the jury system.
Or, more bluntly put, if judges don’t trust the system, then why should the jurors or the parties, for that matter? “That costs all of us,” says Santa Clara University law professor Gerald F. Uelmen, a member of the Simpson criminal defense team and a longtime commentator on court access issues. “That means we go down a notch in comparison with used car salesmen. The entire [legal] profession has to be concerned about the public attitude toward the court system and the profession.”
Uelmen urges judges to return to traditional methods the U.S. Supreme Court has prescribed to control publicity—including exercising their authority to punish lawyers—rather than continue to fight losing battles by trying to stanch the flow of information through means that arguably are constitutionally suspect.
An Overall Trend?
Though perhaps only a couple of the thousands of criminal trials that occur each year in the United States qualify as bona fide examples of celebrity justice, the craze for sealing court files and proceedings reaches deep below the top of the defendant heap. Public defenders in the District of Columbia learned that lesson this summer after a judge, at prosecutors’ request, ejected one of them from a plea hearing for a man who was expected to testify against the defender’s client.
Although the U.S. attorney’s office admitted the expulsion was unconstitutional, public defenders pressed on with an appeal after their research uncovered files on some 200 different defendants, each remarkably named “In re Sealed Record.” The D.C. Court of Appeals, however, gave prosecutors a pass in light of their recognition of the error of their ways and promises of instruction “on the strict conditions governing any request to seal a criminal record or to close a criminal courtroom.” Nellson v. Bayly, 856 A.2d 566 (July 22).
“I suspect there’s lots of routine sealing going on that nobody either knows about or knows enough to object to it,” says one public defender.
The Supreme Court has long held that the press and public have a First Amendment right to attend criminal trials, pretrial proceedings and jury selection, traditions that date back to the English system. The justices also have let stand numerous lower court rulings extending the right to documents and other aspects of the process. Whether it’s closing a hearing, sealing a document or, in rare instances, trying to prevent publication of certain material, parties seeking restrictions on the press lug a heavy burden.
Courts hearing access disputes must start with a “presumption of openness that may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (Press Enterprise I).
First Amendment precedent also requires courts cutting off access to make factual findings specific enough to show “a substantial probability that the defendant’s rights to a fair trial will be prejudiced by publicity” and that less restrictive alternatives, such as venue changes, won’t work. Press Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press Enterprise II).
Broadcasters also are concerned about cameras and recording equipment in the courtroom. But unlike other means of access, the Supreme Court hasn’t elevated cameras to First Amendment status. Instead, it has declined either to bless or condemn cameras in state courts, though the justices haven’t budged from a long standing ban on cameras in federal courts.
Though withholding identities of sex crime victims qualifies as one of the narrow exceptions to access, media lawyers complain that judges and the parties in the Jackson and Bryant cases have taken advantage of the sexual assault allegations before them to stash reams of unrelated information that should be public.
On paper, anyway, the ABA Criminal Justice Standards, various court rules and state statutes follow the Supreme Court case law on access pretty much black letter by black letter. In practice, however, trial courts wishing to draw the curtain on their business often take shortcuts.
Though the case law governing First Amendment access and the Sixth Amendment’s fair trial promise is hardly esoteric, the two intuitively straightforward concepts combined can stump judges in high profile cases as they try to accomplish the often delicate task of balancing one against the other. In some cases, novel legal theories to support closure have sprouted almost overnight.
“What is disturbing now is that judges are pushing the envelope in ways we have never seen,” says Paulson of USA Today. Indeed, celebrity has emerged in some courts as a legitimate legal factor supporting closure.
“The combination of sensitive information involving minors with the notoriety of a celebrity defendant produces circumstances where, without protective measures by the court, both the privacy interests of the minors and the public interest on all sides of the issue for a fair trial are imminently threatened with substantial prejudice,” Santa Barbara County Superior Court Judge Rodney S. Melville wrote in January last year in the Jackson case. With those words, he ordered seals on search warrants, on the affidavits detectives used to obtain them and on inventories of evidence seized.
Under normal circumstances, California search warrants and supporting material become public within 10 days of issuance. The Jackson warrants, served at the pop star’s Neverland Ranch and other locations, remain sealed a year later.
From top to bottom, the Jackson case offers the most extreme example of closure gone haywire, media lawyers say. Nearly all documents in the court file bear little more than case captions accompanied by page after page of blocked out text. For what it’s worth, reporters can peruse the skeletal file through a special Web site and password. Court officials established the media only site ostensibly to ease demands anticipated on clerks from droves of reporters and members of the public wishing to view the hard copy at the courthouse.
“That is a case that’s beyond anything I’ve ever seen,” says David H. Tomlin, a newsman with 30 years’ experience before he became an in house lawyer for The Associated Press three years ago. “I think they’re going to have to offer a class in Michael Jackson jurisprudence.”
Even the indictment, the most basic document in any criminal case, has been stripped not only of the statutorily protected minor accuser’s name, but also of all descriptions of specific acts prosecutors allege to back the charges against Jackson. Also missing are the names of unindicted co conspirators, presumably adults.
Recent convert Shapiro says he has no problem with Melville’s approach. He especially likes it because it not only protects Jackson’s rights but also shields witnesses and others associated with his defense. It doesn’t bother him that the legal rights of nonparties probably are dubious at best.
“What’s going to happen to these individuals?” Shapiro asks. “The press is going to be camping out, following them and doing background stories on them. It ruins peoples’ lives.”
Shutting Media Out of Pretrial
Jury selection for Jackson, always a legal stumbling block when extensive news coverage is involved, isn’t expected to begin for at least a month. In the meantime, Los Angeles media plaintiffs lawyer Theodore J. Boutros Jr. already has made a career of unsuccessfully trying to pry seals from most documents filed with the court.
“I have never been in a situation where I’ve had all the law on my side, had the other side say nothing when I make these motions and still have the rulings come out the way they do,” Boutros says. As the criminal case headed toward trial last fall, Boutros busily marshaled arguments against countless sealing orders for appeal to the California Supreme Court.
Though California and federal case law require judges to make detailed findings of fact before sealing materials, Judge Melville early in the case began using form orders, each of which repeats a list of identical factual assertions with no reference to the evidence supporting them. The forms leave room at the top to fill in the specific document’s title and description.
The practice effectively reverses the presumption of openness and makes it more difficult for media lawyers to argue for access when they don’t know a document’s contents. Making his life even more difficult, Boutros says, the lawyers and judge speaking in court refer to documents in a code that only they understand.
The sealing system and an accompanying gag order silencing the participants evidently have confused even prosecutors and defense lawyers to the point where they’re no longer certain what they can and can’t say or do. So, covered by a gag order that both sides have endorsed, the lawyers say nothing and routinely file pleadings under seal. That includes even items that have nothing to do with the accuser or the charges, such as a state attorney general’s report clearing jailers of Jackson’s accusations that they roughed him up after his arrest in November 2003.
But one day last May, Deputy District Attorney Gordon Auchincloss didn’t file a pleading under seal and consequently evoked Melville’s ire. The judge refused to accept the document and suggested the prosecutor wasn’t taking the court’s orders seriously. “As I recall, the court provided us with a directive that ‘sensitive’ items be sealed, which required, I guess, a subjective call on my behalf,” replied Auchincloss, apologizing for not recognizing the “sensitive” side of the questioned document. “If it’s simpler for the court for us to ask for a sealing order on every single document we file, that might make it easier.”
Melville noted the persistent media lawyer seated behind Auchincloss.
“That’s exactly why Mr. Boutros is sitting behind you with his pen ... in hand, which is his weapon,” Melville told the prosecutor, evidently anticipating more media challenges. “That’s not what we want. What we want is what I’ve ordered. There’s a protective order. ... From my viewpoint, it clearly states what things are protected, what things you can’t reveal under that order, and I just am asking you to look at that again and look at your documents.”
Still, Melville told Auchincloss he was unable to shake a feeling “that somewhere the prosecution has missed the whole point of this.” He promised to put into writing “what seems so clear to me,” so “hopefully ... it will be clear to you.”
In the Martha Stewart prosecution, federal judge Cedarbaum got considerably less mileage out of the celebrity First Amendment exception than Melville has racked up so far in the Jackson case. Cedarbaum closed jury selection out of fear that reporters’ presence would spook potential panelists from candidly answering questions. She figured she was on safe ground when she devised a system where she conducted live juror questioning secretly in her robing room but furnished reporters with transcripts of the sessions the next day, with the panelists’ names edited out.
That wasn’t good enough for the 2nd U.S. Circuit Court of Appeals, which reversed Cedarbaum just a little more than a month after her Jan. 15, 2004, order to close jury selection. “The mere fact of intense media coverage of a celebrity defendant, without further compelling justification, is simply not enough to justify closure,” the appeals court wrote in rebuking Cedarbaum’s action. ABC Inc. v. Stewart, 360 F.3d 90 (Feb. 18).
The 2nd Circuit also viewed skeptically assertions that journalists’ presence would intimidate jurors from honestly answering questions when Stewart and co defendant Peter Bacanovic also were in the robing room during voir dire. “We find it difficult to conceive of a potential juror who would be willing to reveal a bias against the defendants in their presence but not in the presence of reporters.”
Just the same, the secret jury selection did work as a practical matter. Though the appeals court moved swiftly, it still didn’t issue its decision until after the trial was well under way and interest in jury selection had fizzled. At least on a regional basis, however, media lawyers still consider the Stewart decision significant because it also appears to severely restrict as aberrational 2nd Circuit precedent that leaned toward secrecy.
First Amendment, Anyone?
Some observers attribute the wave of closed courtrooms and sealed files to an abiding and apparently infectious judicial phobia of becoming another Lance Ito. The Simpson criminal trial judge was widely criticized for ceding control of his courtroom to the lawyers and witnesses, some of whom became celebrities in their own right. “A lot of judges learned from the Simpson case,” Shapiro says. “They learned some hard lessons, and they learned very quickly.”
Others lay the blame on wealthy defendants who can afford to carry on fights not only to clear their names, but to keep them out of the newspapers and off the evening news, not to mention the supermarket racks. Still others say increasing numbers of competing news organizations and the rise of tabloid journalism have overwhelmed the courts and forced judges’ hands.
But plain old fashioned ignorance may be the chief culprit. University of Minnesota journalism professor Jane E. Kirtley recalls telling a group of Virginia judges about Richmond Newspapers Inc. v. Virginia, the landmark 1980 U.S. Supreme Court decision where the justices for the first time held that the public and press have a First Amendment right to attend criminal trials. 448 U.S. 555.
“I got a room full of blank stares,” says Kirtley, a lawyer and former executive director of the Reporters Committee for Freedom of the Press. “It was from their own state. I was dumbfounded that they didn’t know what I was talking about.”
Lawyer Lucy Dalglish, Kirtley’s successor at the Reporters Committee, says she gets similar reactions when she teaches at the National Judicial College and other training seminars for judges. “Some of them are honest to God surprised to find out that the First Amendment applies in this situation.”
Besides sealing and closure orders, judges doing the constitutional access dance also regularly issue prior restraints. Most often in the form of gag orders, prior restraints seek to muzzle out of court comments from the lawyers, the parties and other participants, thus cutting off many, if not most, sources with credible firsthand information. On occasion, courts also have sought to prevent news outlets from publishing certain lawfully obtained information.
The Supreme Court has recognized gag orders on trial participants as legitimate means of controlling publicity. To boot, in cases with no gag orders, the court also has held that states may use professional disciplinary rules to punish lawyer speech that has “a substantial likelihood of materially prejudicing” the outcome. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).
On the other hand, it’s nearly impossible to gag the press to prevent publication—no matter how explosive the material. As it does for sealing and closure, the Supreme Court imposes a heavy load on parties who want to silence the press. Trial judges must conduct hearings to consider the extent of news coverage, whether less restrictive measures would soften the impact of unfettered publicity and whether the proposed restraint would effectively curb the perceived danger. As in other situations, less restrictive means to be considered first include continuances, venue changes, jury sequestration, extensive voir dire and strong warnings to jurors to avoid news reports about the case.
Closures for Kobe
Even reservations about national security didn’t prevent U.S. Supreme Court cleared publication of the Pentagon Papers in 1971. But a divided Colorado Supreme Court in the Kobe Bryant prosecution nevertheless held that privacy interests in a state rape shield statute prevented publication of an inadvertently released transcript of a closed hearing detailing the accuser’s sexual past. People v. Bryant, 94 P.3d 624 (July 19). The majority reached that result despite agreement that reporters obtained the transcript legally, which took off the table one of the strongest arguments for prepublication censorship.
“Before this case was filed, there never had been a closure of any pretrial hearing in Colorado, except for a couple of rape shield hearings,” says lead media plaintiffs lawyer Thomas B. Kelley of Denver.
The matter was resolved when the Colorado trial court relented and released nearly all the questioned material after U.S. Supreme Court Justice Stephen G. Breyer hinted the high court would take the case and do the job itself. Still, the problem didn’t disappear. The prior restraint precedent remains on Colorado’s books.
State prosecutors dismissed the criminal charges against Bryant on Sept. 1 after the 20 year old woman he was accused of attacking refused to testify. But the closure issues remained very much alive as media organizations pressed for release of police investigative files and other materials withheld when the case was alive.
“There are 800 pleadings,” Pamela Mackey, Bryant’s Denver based lawyer, estimated in late September. “I would imagine 35 percent are still sealed. There were 25 days of pretrial hearings, two thirds to three quarters of which are still sealed.” That’s not counting an estimated 3,500 pages of investigative files that media lawyers were trying to obtain.
But attention shifted from state court and a flurry of bitter exchanges between Mackey and prosecutors over the remaining secret materials when U.S. District Judge Richard P. Matsch entered the picture in October.
Presiding over a Jane Doe federal civil lawsuit the woman has filed against Bryant, Matsch on Oct. 6 held the woman no longer could proceed anonymously and must start using her name. Because the woman’s identity already had become widely known, and because the criminal prosecution had ended, Matsch saw little purpose in letting her remain unidentified. He also bought an argument by Bryant that allowing anonymity could be construed as a prejudgment in the woman’s favor.
“The parties appear as equals before the court, and that fundamental principle must be protected throughout these proceedings,” Matsch wrote.
But forcing the woman to use her name is a world apart from releasing materials that contain embarrassing allegations of her prior sexual conduct and of Bryant’s. The civil case lawyers can obtain those materials and more through discovery. Indeed, Mackey, who is remaining for the civil case, says she already has the material left over from the criminal discovery.
But that doesn’t necessarily mean Matsch will admit any of it as evidence. So it could remain secret without continued media legal pressure for release.
“I think the majority of this material will come out through the media’s efforts,” predicts the woman’s lawyer, L. Lin Wood of Atlanta. Once called the “attorney for the damned,” Wood’s famous clients have included the parents of slain 6 year old beauty queen JonBenet Ramsey; former congressman Gary Condit, who was linked romantically with intern Chandra Levy but not charged in her disappearance and death; and Richard Jewell, falsely suspected of the fatal bombing at the 1996 Atlanta Olympics.
Moreover, Colorado media lawyers expect Matsch’s no nonsense style to contrast starkly to the approach state trial Judge W. Terry Ruckriegle took in the criminal case. From the beginning, media lawyers contend, the Bryant criminal prosecution appeared to overwhelm Ruckriegle and Eagle County, the Rocky Mountain community west of Denver where the woman says Bryant assaulted her in a hotel room in June 2003. “I think he has good intentions, and he’s certainly a good judge, but I think all the media attention spooked him a little bit,” says Kelley, past chair of the ABA Forum on Communications Law.
Kelley attributes the case’s numerous closed hearings and sealed documents to the intense media interest. He also points to orders that are just downright strange, such as a ban on speaking the accuser’s name in court. Not helping either was the determination by all involved in the criminal case to keep the trial in Eagle County, where a 45,000 population doesn’t allow much wiggle room when trying to find jurors willing to set aside preconceived notions and base their verdict on evidence presented in court. “You had things happening that gave the public the impression that the judge was losing control,” Kelley says.
Matsch comes to the Bryant civil case with considerably more media experience under his belt, mostly from his handling of Oklahoma City bomber Timothy McVeigh’s trial, which was moved to Denver. Though McVeigh, since executed, arguably was the most reviled and well known criminal defendant in American history, Matsch kept nearly every aspect of the 1997 trial public.
Off limits were only a handful of inconsequential documents, some suppressed evidence and a few sensitive voir dire questions. Matsch took full control of the McVeigh proceedings from the get go. Besides the change of venue, the initial jury summons sent in February 1997 along with a preliminary questionnaire sternly warned the recipients to avoid publicity concerning the case. The notices also cautioned that much of what had been said and written “may be speculation, rumor and incorrect information.”
Matsch repeated the warning when 352 potential jurors arrived in person and began completing more detailed questionnaires. He ordered the panelists to follow the same instructions as the jurors who would be picked to hear the case. That included an order for the prospective jurors “beginning right now to avoid any news reports of any kind or any communication or publication of any kind that concerns any issues related to the charges in this case.” Besides the repeated warnings, voir dire was extensive, lasting up to an hour per juror, with some queries individually posed by the judge or the lawyers.
In the three weeks before jury selection began, potential disaster landed on the courthouse steps when The Dallas Morning News and later Playboy published confessions McVeigh purportedly made to his lawyers.
But jurors themselves defused concerns about bias. Though the wire services picked up the stories and sent them around the world, only four of the seated jurors said they were aware of them, and then only from superficial exposure. Each also expressed skepticism about the reports’ accuracy. The rest of the jurors who decided the case had not even heard of the stories.
The 10th U.S. Circuit Court of Appeals credited Matsch’s strong hand in spurning a pretrial prejudicial publicity claim that McVeigh raised on appeal. United States v. McVeigh, 153 F.3d 1166 (1998). Matsch’s style also sent jurors away from the case with a rare respect for the system, Kelley says.
“But they had a judge who was very skillful in voir dire,” Kelley says. “What happened is that the jury had reverence toward the court.”
He doubts jurors in the state criminal case against Bryant would have departed with the same attitude had the matter been tried to conclusion. “The people in charge of making the system work right were losing it.”
Letting Information Flow
Back in California, professor Uelmen wonders why more judges don’t assume similar command of high profile cases by cracking down on lawyers and other trial participants instead of choking off news coverage. He detailed his views in a 1997 Santa Clara Law Review article, “Leaks, Gags and Shields: Taking Responsibility.” Seven years later, however, Uelmen still hasn’t gotten any takers on his proposition. “If anything, the situation has gotten worse,” he says.
For Uelmen, a key evil in denying access occurs when reporters must resort to unidentified sources willing to leak information otherwise unavailable. But the reliability of anonymous sources is inherently suspect, as are motives for leaking material in the first place. Uelmen also doesn’t have much use for talking heads, those television talk show lawyers willing to comment on anything without letting the facts and the law get in the way.
Thus, Uelmen says, courts should permit lawyers to discuss cases outside court because they’re likely the most accurate sources. “Judges say to lawyers, ‘You can’t talk to the media,’ so where is the media supposed to go? I think our goal should be not to stifle the flow of information but to ensure that the flow of information that goes out to the public is reliable and credible.”
As do existing professional conduct rules, Uelmen basically would confine out of court statements to facts and matters of public record, and would forbid attacks on character and credibility. Because Uelmen insists that named sources are the most reliable, he wouldn’t protect an anonymous source if the source “violates a valid protective order or a rule of professional conduct.”
Uelmen also would impose sanctions for refusal to identify a source not only on reporters but also on offending news organizations. Besides the inevitable objections on First Amendment grounds, limiting protection for sources also has major practical implications for journalists. That’s because the Supreme Court has granted a cause of action against news outlets that break promises of confidentiality and reveal sources’ identities. Cohen v. Cowles Media Co., 501 U.S. 663 (1991). Journalists caught in the situation Uelmen poses must weigh a possible trip to jail for refusing to identify a source, or a hefty damages claim for breach of contract should they cooperate and do so.
Uelmen acknowledges another shortcoming. He traces state authority to discipline lawyers for remarks made outside court to the Supreme Court’s 5 4 holding in Gentile. However, a different 5 4 majority also voided for vagueness the Nevada rule at issue. But unless the question reaches the Supreme Court again, no one knows what kind of lawyer restrictions the justices would approve.
In the wake of Gentile, the ABA and other rulemakers tried to write a regulation that would satisfy the justices. ABA Model Rule of Professional Conduct 3.6, amended in 1994, illustrates the potential downfall of such efforts in a catch all self defense exception that would allow a statement “that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity” not caused by the lawyer or the client. The trouble is that sweeping language could apply to just about any statement, thus rendering the rule ineffective.
“I think the disciplinary rule we have now is about as far as you can go,” says Denver media lawyer Kelley. Regardless, Uelmen says, courts and other members of the system need to adopt a more realistic approach.
“You’re not going to prevent the public from drawing conclusions,” he says. “You’re not going to stop the intense public interest in celebrity. Is the solution to drive it underground? I don’t think so.”
Time for action may be growing shorter than most folks realize, especially if other studies by Uelmen are any indication. He recalls research he did for a 1998 article for the ABA Litigation Section that identified 34 cases since the late 19th century that were dubbed “the trial of the century.”
“It used to be we’d have one trial of the century every three years or so,” Uelmen observes. “Well now, we’re having one every six months.”