Courthouse Steps Syndrome
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Also known as “mic in face make lawyer say lots of things”.
A long time ago I wrote two posts on the propensity of some lawyers to blabber too much in court, either with or without the media present (incidentally, two of the most popular posts here at apd).
Then yesterday I happened to read this post by the prolix (his word, not mine) David Giacalone at f/k/a. Essentially, he coins the phrase “Defenders Red Herring Credo” and is disappointed at the blatant nonsense put forth by a particular set of defense lawyers in defense of their clients - to the media. Read the post, which, while rather long, does not seem that way because of his writing style.
The thrust is this: Why are defenders so tied to making some form of statement proclaiming their clients’ innocence or ridiculing the State’s evidence to the media, no matter how patently absurd and does it not show criminal defense lawyers in a poor light and lead some credence to the general perception that we are not to be trusted?
Scott, in the comments, agrees with me for the most part that the less said the better and it probably is best if you say nothing at all. No one I know of was convicted because his lawyer said “not guilty” on the courthouse steps.
But he also threw this in:
But the one thing to remember is that the defense has no duty of fairness to the public. It’s only duty is to its clients within the bounds of the law.
I agree completely, but in the case of CSS*, I don’t think they’re mutually exclusive. Our duty to the client should encourage restraint on the courthouse steps. Just because the clients (or more likely the media) want some outward showing of their “innocence”, doesn’t mean we have to give it to them.
First, we should believe what we’re saying, because if we don’t, it comes across pretty clearly. Second, as lawyers thinking two steps ahead, we should be careful of what we assert, because people and the media and the internet have long memories and if we can’t prove it later on…well, that doesn’t look too good either.
Finally, and most importantly in my opinion, today’s 10pm news watchers are tomorrow’s potential jurors. Much has been written in the blawgosphere over the past months about what best convinces a jury. Credibility was oft repeated. A jury will be more inclined to believe your client’s version of the story if they’re more inclined to believe you.
But if they remember you as the smarmy lawyer they saw spout nonsense on TV, will they be more inclined to believe your next client? Maybe, maybe not. Do you want to take that risk?
*not to be confused with Cascading Style Sheets
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The “Court House Steps Syndrome” as you describe it is a double edged PR sword. is it better to stay quiet and seem as if you have something to hide. or,is it better to speak to the media and risk looking badly in the eyes of potential jurors.
I agree with you that restraint on the court house steps should be shown. Anything else and you risk coming off poorly.
Thank you for tackling this problem in public, Gideon. As I wrote to you in an email today, and in response to Commentor sfolaw, there is no need to be absolutely silent. Defense counsel surely can assert the client’s claim of innocence, intention to plead not guilty, and intention to fight the charges and make the prosecution prove every element of its case.
As the old saying goes “sometimes less is more”….especially if you are a public defender.
If one were in private practice, I think the SOP might be a bit different.
A perspective from outside the profession:
When I see either defense or prosecutor making quotes to the media, I take it with a grain of salt. I guess I’ve come to think that the “my client is innocent” statement, –regardless of how ridiculous it may seem– is just part of the job. [Although I understand they really are innocent until convicted, society doesn't seem to work that way. (Think Duke lacrosse players, et. al.) ]
I’d like to think that if I ever sat on a jury I wouldn’t care much about what the lawyers said but rather what the evidence indicated. Perhaps that’s naive.
David’s point was that the criminal defense lawyers’ statements were, frankly, factually baseless and facially shameless, provided you had a firm grasp of the facts. He was dismayed, with good reason, that lawyers would stand before the mic/camera and offer such baldfaced garbage.
The question of handling the press in general is a much larger issue, with many variables and concerns, and is poorly served by simplistic views. There are times when it is necessary, indeed vital, to say something lest the pool be permanently tainted. There are times to keep one’s stupid trap shut, lest you commit to a position that will later destroy the client.
But there are times when a high profile case gets framed by the media based upon publicized myths, which if not dispelled become impossible to counter later. This is a very complex subject, and David’s concern added another fascinating and troubling wrinkle.
Gerard,
I don’t think your views are naive at all. The Duke case is the one I use most as an example of why the media usually isn’t your best friend whether your a prosecutor or a defense attorney.
If you don’t feed them, there is nothing to sensationalize. If you don’t feed them, there is nothing to be taken out of context. If you don’t feed them, there is no room for miscommunication or misinterpretation. If you don’t feed them, there is nothing that will come back and bite you in the glutes.
Having said that, there certainly are going to be times where if you don’t say anything in rebuttal, your client gets crucified by the media. Which is why I prefer the less is more option. If I feel the need to say something, I take the minimalist approach.
As for offering up factually baseless comments, the client would have to find another attorney to do that…I’m not the one for the job.