Capital Gazette wins special Pulitzer Prize citation for coverage of newsroom shooting that killed five

Lawyers Who Want to Try Cases in the Media

THE BALTIMORE SUN

For years, when pressed for details about pending cases and interviews with clients, defense attorneys have steadfastly maintained: "I will not try my case in the news media." But in the past few months, several attorneys in the Baltimore area have done exactly that.

When police accused an elementary school principal of drug dealing or when they charged a teacher with fondling a student, the defense attorneys quickly turned to newspapers and televised press conferences to fight the charges in the court of public opinion.

Legal experts disagree about whether the high-profile cases represent a trend, but the issues they raise about the relationship between law and the news media are at the cutting edge of a national legal debate.

Should attorneys wage aggressive media campaigns before trial? Is it a good and fair strategy? Or is it more likely to harm the defendant's case or distort the legal process?

Attorneys across Maryland as well as some of the nation's leading legal minds disagree.

"It's a good tactic under certain circumstances," said Baltimore attorney William H. "Billy" Murphy. "Prosecutors and cops use the press shamelessly. If the atmosphere has been poisoned by the other side, it's important to unpoison it." Defense attorneys often can help the press cover cases "more neutrally" if they go public, he said.

Alan Dershowitz, the flamboyant Harvard Law professor, agreed that using the media is a legitimate counter-strategy against prosecutors who publicly malign his clients.

"We defense lawyers don't use it as a legal strategy, we use it to level the playing field against prosecutors who use it as a strategy," he said. "Almost every defense lawyer I know would rather keep their case out of the press. . . . But I'll be damned if I'm going to defend a client with one hand tied behind my back."

But former Supreme Court Chief Justice Warren Burger sees it differently.

In a speech last month at the University of Tennessee, he said lawyers should never discuss their cases out of court.

"Some might say that such a view makes me old-fashioned," he said. "But I am sure that today an overwhelming majority of lawyers and judges, not to mention laypersons, share that same view."

J. Joseph Curran Jr., Maryland's attorney general, doesn't like the practice of attorneys or prosecutors litigating cases in the media.

"This new way of going on national TV to talk about your case, quite frankly, I'm not sure that it's a well-advised strategy," he said. "I guess we'd all be better served if the litigation were confined to the courtroom."

Attorneys looking for a national standard on the issue are out of luck. Two years ago, the Supreme Court struck down the American Bar Association's rule on trial publicity as too vague. The ABA is still trying to draft a new one.

Monroe Freedman, an ethics professor at Hofstra University Law School who writes a column for Legal Times, sees no problem with defense attorneys waging aggressive media campaigns. "It's entirely appropriate for lawyers to be doing this," he said.

"When an indictment is published, particularly with a press conference, the defendant is severely punished without due process," he said. "If the defendant has to wait years for vindication, his reputation is destroyed without due process."

Local lawyers also said they see no ethical violations in talking to the press, and even allowing their clients to do so, before trial. But almost all agreed taking a public approach is risky at best and should be used sparingly. They worry, however, that several recent cases played out in the public arena signal an increase in the tactic.

"I think it's unfortunate, but I think there will be more and more of these cases," said E. Thomas Maxwell, a Baltimore lawyer who orchestrated an aggressive media campaign last November to defend his client, an Anne Arundel County school principal charged as a drug kingpin.

Mr. Maxwell said he decided to go public with his client -- the first time in 30 years as a defense lawyer -- because: he was convinced the defendant, Patricia A. Emory, was innocent; the prosecution had no evidence against her but was maligning her character; and she would hold up well under press scrutiny.

"This was the perfect case. She was the perfect client," he said. "But I just don't think there's that many perfect cases out there. Sometimes, I think the decision [to go public] is made so lawyers can advance their own interests, not those of their clients."

In Ms. Emory's case, he thinks the strategy worked because "it kept pressure on the prosecution to take a real hard look at this case."

Mr. Dershowitz, who has defended such celebrities as Claus von Bulow, Leona Helmsley and Mike Tyson, said he believes there has been an increase in the use of the media by defense lawyers over the past decade, but he stressed the trend has been brought on by prosecutors.

Some of his clients were portrayed so badly in pre-trial news reports, fueled by prosecution press releases and statements, that he felt obligated to try to show them in a better light.

"Look at Leona Helmsley. She was portrayed all over the world as the 'Queen of Mean.' Look at Tyson, he was portrayed as an animal. Sometimes you have to fight back . . . just to limit the damage," he said.

But many local lawyers said putting a client before the media should be avoided at almost all costs.

"I wouldn't do it. I think it almost neverhelps," said Arnold W. Weiner, a Baltimore lawyer who defended former Gov. Marvin Mandel. "Frequently, there's probing questions, and either the defendant makes denials that end up looking false, or they make admissions and concessions that they wouldn't have made otherwise."

"The much better practice is for attorneys to do their talking in the courtroom and not on the courthouse steps," said Michael E. Kaminkow, president-elect of the Maryland Criminal Defense Attorneys Association. But he conceded there are times when the approach might work.

He said recent cases in Anne Arundel County and Baltimore City have focused so much attention on the subject that he is thinking about organizing a seminar on media use when he takes the reins June 5.

Nationally known lawyer F. Lee Bailey said he has granted media access to clients before indictment at least a half dozen times during his 30-year career.

"If there's been no indictment, sometimes going public is effective in warding it off," he said. "You let the prosecution know just what they're up against."

Overall, he said, wise defense attorneys tread very carefully when deciding to say anything, particularly if it comes from a client, before trial. "The chances of saying something that will rise up and bite you at trial is just too great," he said.

In four local cases where attorneys have turned to the media, lawyers disagree about whether the defense attorneys made wise choices.

Consider the circumstances around each case:

* Oct. 29, 1992: Elementary school principal Patricia A. Emory is arrested on drug kingpin charges, along with her husband and eight other people. Her lawyer grants newspaper and television interviews with his client, releases polygraph test results and puts her before a grand jury to prove her innocence. The state's attorney eventually backs off the charge, and the teacher is never indicted.

* April 8: Ronald Walter Price, a teacher at Northeast High School in Anne Arundel County, is charged with a sex offense for having sex with an underage student. Later, he is charged in two additional cases involving students who are minors. His lawyers book him on the nationally syndicated television shows "A Current Affair" and "Geraldo!" to tell his side of the story, which includes admissions of sex with students and explanations that he suffers from "an illness."

* April 17: A Baltimore City police officer, Edward T. Gorwell II, is charged with shooting a 14-year-old car theft suspect in the back. His attorney arranges a press conference and insists that grand jury members visit the shooting site. The officer is later indicted on manslaughter.

* May 15: A second Northeast High School teacher, Laurie Susanne Cook, is arrested and accused of a sex offense involving touching with a 14-year-old boy who was her student. Given the national attention generated by the first case, her attorney calls a press conference to give reporters "limited access" to ask questions in a "controlled environment."

Although local lawyers say they at least understand the strategy in three of the four cases, the one that baffles is that of Ronald Price, who admitted on national television to having sexual relationships with at least seven students, two of whom he later married.

"For the life of me, I can't figure out what the strategy is," said Cristina Gutierrez, an associate of Mr. Murphy who is representing the second Northeast teacher charged.

"It's a total disaster," said Mr. Weiner of the Price defense strategy. "The lawyer has helped turn his client into a monster."

But Timothy F. Umbreit, one of two attorneys on the case, said because Mr. Price admitted his involvement with one student to police officers upon his arrest, they were forced to go public.

"It's a strategy. It's the only strategy," said Mr. Umbreit. "If he had not already admitted to the facts of the case, we may not have taken this route."

Once a confession was made, he said, the lawyers needed to increase the possibility that people would believe Mr. Price has an illness and is therefore not criminally responsible for his acts. Further, said Mr. Umbreit, his client tried to get help through the school system and was ignored.

"If I said this in a courthouse [for the first time], they would have laughed me out of there," he said. "If [Mr. Price] blows it, and he goes down in flames, there's nothing else I could have done. At least I've got you considering it, the possibility it happened this way. All I have to do is create doubt."

As to his choice of "Geraldo!" and "A Current Affair" over mainstream media outlets, Mr. Umbreit said newspapers, including The Sun, refused to do interviews with Mr. Price.

Gilbert L. Watson III, The Sun's assistant managing editor for local news, disagreed. He said The Sun has sought an interview with Mr. Price from the day he was arrested, but that no interview has been granted.

Mr. Umbreit said, "If it wasn't for Geraldo Rivera, Mr. Price's story would not have gotten out. "Because I had the attention of the nation in the scummiest of forums, the mainstream press had to pay attention." The mainstream media, with the exception of Richard Sher of WJZ-TV, were not interested in the story, he said, because it "blasted the old boy system," including the school system Mr. Price accuses of covering up his problem.

Ms. Gutierrez, who is defending Ms. Cook, the second Northeast teacher charged, said intensive media coverage generated by the Price case forced her client to go before the press.

"They literally hounded her -- camped out in her yard, her back alley, interviewed her neighbors. . . . She didn't feel it was safe to go home," said Ms. Gutierrez, adding that her client has been falsely accused because of the hysteria created by the Price case.

"We hoped by having a press conference it would persuade the press to back off her," she said. "In that sense, it worked."

But Mr. Weiner said the Cook case illustrates why an attorney should avoid pre-trial publicity.

"The denial may be the lead, but the rest of the story is a regurgitation of the rest of the case," he said. "With the Cook case, [any publicity] continues to perpetuate the linkage with Price. It provides the hook for restating all the negatives. In advertising, they say if you hear something several times, you'll remember it. The same is true here."

An even bigger problem, he added, is that Ms. Cook acknowledged touching students, such as patting them on the back for encouragement, but quickly added that this type of physical contact is not inappropriate. She admitted though that such a gesture could have been misinterpreted by a student.

"Now you've got her on camera admitting to invading a student's space. That doesn't help at all," said Mr. Weiner. "Most often, press conference information ends up being evidence for the prosecution."

And while acknowledging that Mr. Maxwell waged a brilliant campaign for Mrs. Emory, Mr. Weiner thought the results would have been the same without press involvement.

"Patricia Emory got off because there was absolutely no evidence, the defense released polygraph results, and she appeared before the grand jury," he said. "There was no pressure to drop the case that came from the public. There was no groundswell of people marching around the courthouse chanting, 'Free Pat Emory.' "

Although defense attorneys have fingered prosecutors for escalating the use of media in criminal cases, local prosecutors have denounced the practice.

Frank Weathersbee, Anne Arundel County state's attorney, said criminal cases should be litigated in a courtroom.

"To say that we've never overstepped the bounds would be silly. I'm sure there have been occasions," he said. But, he added, "Whoever starts it, somebody has to stop it as quickly as possible. Whoever was right or wrong in the beginning, the sooner we recognize that pre-trial publicity is getting out of hand, we have to put a stop to it."

Mr. Maxwell said Mr. Weathersbee's comments surprised him. He said Mr. Weathersbee's use of the press had forced him to go public in the first place.

"The problem with his statements is that he created the situation that caused the media hype. He caused it by allowing reporters to ride along [on the initial raid], and he caused it by his office making unjust and untrue statements about Pat Emory," he said. "He perpetuated [the hype]. He never made any efforts to stop it."

Even after Mr. Weathersbee decided not to pursue the indictment, he released a press statement saying: "Just as there is no crime in being 'married to the mob,' an individual cannot be indicted for being the 'wife of a drug kingpin,' even though a briefcase containing over $10,000 and drug tally slips was found secreted under the marital bed."

The only way to prevent lawyers from trying their cases in public is to get prosecutors to stop leaking or giving information to the press, said Mr. Dershowitz. But, he added, he doesn't expect that to happen any time soon, since using the media tends to help the prosecution more often than the defense.

However, the real winners in any legal media war are not the prosecutors or the defense, he said.

"The media's the real winner," he said. "It makes for good stories, good TV."

Deidre Nerreau McCabe and Frank Langfitt are reporters for The Baltimore Sun.

Copyright © 2019, The Baltimore Sun, a Baltimore Sun Media Group publication | Place an Ad
70°