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September|October 2003
Mock Trial's Big Dance By Brian Montopoli
Pete Rose's Mock Trial By Joshua David Mann
Sue Yourself By Dashka Slater
To Be Continued By Sam Goodstein
No Boundaries By Tyler Maroney
The Prudent Jurist By Susan Koniak
Cases & Controversies

The Prudent Jurist

By Susan Koniak

After Richard Jaffe was appointed to defend Eric Rudolph, the alleged bomber at the 1996 Atlanta Olympics, Jaffe went on NBC's Today Show to dispel widely reported rumors that his client was a rabid anti-Semite. What principles should guide advocacy that takes place outside the courtroom? With all the attention lavished on big cases by the media, have such appearances become obligatory and, as a result, changed the rules that lawyers must follow?

IN HIS STATEMENTS TO THE PRESS, Richard Jaffe has thus far been careful to adhere to the ABA's model rule on trial publicity, one of a set of model rules that aren't laws but are used by the states as templates when codifying guidelines for lawyers' conduct. In this case, the ABA model rule and the state rules based on it prohibit lawyers from making comments outside the courtroom that have a "substantial likelihood of materially prejudicing" the resolution of any case in which they are involved as litigators. By this standard, it is unethical, for example, to leak evidence to the press that could not be admitted at trial because it was obtained unconstitutionally or is unreliable. But lawyers can make statements that they reasonably believe are required to respond to negative publicity from other sources. These corrective statements must be limited to information "necessary to mitigate the recent adverse publicity." In other words, this is not a permit to launch a media circus.

Had Jaffe announced a search for the "real" killer, trashed the prosecution's evidence, or rashly impugned the motives or credibility of potential witnesses, he clearly would have been out of line. In fact, what he said was quite carefully measured: In the four or five meetings he had had with Rudolph thus far, he told Today host Katie Couric, he had not seen evidence of the anti-Semitic, racist, or antigay views that had widely been attributed to Rudolph in press accounts—all this despite the fact that Jaffe is Jewish and Rudolph knows it. Jaffe left his interlocutor and his audience to wonder whether Rudolph had merely not yet had a chance to show his true colors to his court-appointed counsel. Jaffe's explanation of the facts seems to me well within the ethics rule's exception for countering damaging publicity; press accounts had portrayed Rudolph's anti-Semitism as all but out of control.

That said, for every lawyer like Jaffe who uses the media as a shield, there is another defense attorney ready to use publicity as a sword. Take Mark Geragos, the lawyer now representing Scott Peterson for the murder of his wife Laci. Geragos, who previously represented Susan McDougal of Whitewater fame and Winona Ryder, may have gotten his job precisely because of his media savvy. He was a regular on Larry King's Laci Peterson speculation panel for months before he was tapped by Scott Peterson to lead his defense.

Barely a month on the case, Geragos suggested that a satanic cult was responsible for the crime; he announced his plan to find the "real killers"; and he sent reporters off on more than one wild-goose chase for mystery women and mystery cars. A judicial gag order is now in place, but gag orders shouldn't be necessary to stop lawyers from behaving this way.

Media-manic lawyers justify their behavior by claiming that their "media offensives" are launched out of zeal for their clients' positions, particularly when their behavior tramples on the standards contained in the ethics rules on trial publicity. But the best lawyers understand that trying cases in the press through misstatements, overblown claims, and rash promises is a recipe for disaster, at least for their clients. What happens to Scott Peterson's defense when Geragos fails to produce the "real killers"? Good lawyers need to be good strategists, and it is rarely a good strategy to lock yourself into a position by revealing your hand early and often. Geragos, only days on the job, announced that he would not be looking for "reasonable doubt" to get his client acquitted. Many acquittals are obtained in cases where the defense cannot offer jurors an alternative suspect for the crime. Unless Geragos knows something the rest of us don't, why raise expectations now?

Media hounds may claim that they're zealous advocates, using the press as one more weapon on behalf of their clients, but too often they seem to be working primarily for themselves. According to The Birmingham News, after a recent 10-minute press conference about his client, Richard Jaffe "retreated to his second story office, where he resumed working" on the Eric Rudolph case. Based on the record so far, it appears that the judge who assigned Jaffe to represent Rudolph knew how to pick a lawyer.

Questions for the Prudent Jurist can be sent to prudentjurist@legalaffairs.org.

Susan Koniak is a professor at Boston University School of Law and the author of The Law and Ethics of Lawyering.

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