Tuesday, August 31, 2010

Pre-Trial Publicity, the First Amendment, and "The Fugitive" - Part One, Gagging the Parties and Controlling the Media

In this post from last week, I wrote about the order entered by U.S. District Court Judge Reggie Walton in the Rogers Clemens perjury case prohibiting Clemens, potential witnesses and lawyers "from making any future statements about this case to the media or in a public setting outside the courtroom." An order prohibiting participants in a case from commenting to reporters or the public infringes on the First Amendment rights of the individuals gagged. Gag orders also interfere with the media's efforts to gather and disseminate news, again implicating the First Amendment. What interests are being served by this use of judicial power to curtail First Amendment rights?

Judges justify gag orders as necessary to protect a person's right to a fair trial, the fair administration of justice, or the sanctity of jury deliberations. The power to gag trial participants comes from the Fifth and Sixth Amendments as interpreted by the Supreme Court in the case of Sheppard v. Maxwell, 384 U.S. 333 (1966), otherwise known as the Sam Sheppard murder case.

It has long been surmised that the television drama "The Fugitive" was loosely based on the Sam Sheppard murder case. Dr. Sheppard's pregnant wife, Marilyn, was bludgeoned to death in the upstairs bedroom of their Ohio home in the early morning hours of July 4, 1954. Dr. Sheppard testified that he had fallen asleep downstairs, and was awaken by a cry from his wife. He rushed upstairs and encountered "a bushy-haired man" standing over his wife's bed. Sheppard struggled with the intruder, who knocked him unconscious. When he regained consciousness, he went downstairs to investigate a noise, and again encountered the intruder. Dr. Sheppard chased the intruder out of the house, struggled with him again, and was again knocked unconscious.

After an investigation, indictment, and nine week trial that ended in December 1954, Dr. Sheppard was convicted of murdering his wife. His case came before the Supreme Court on a federal habeas petition raising the issue of whether Dr. Sheppard had been deprived of a fair trial because of the trial judge's failure to protect him sufficiently from the "massive, pervasive and prejudicial publicity that attended his prosecution."

The Court's decision in Sheppard v. Maxwell is fascinating reading, describing in detail not only the extent of the pre-trial publicity, but how at trial the courtroom was taken over by the media and the jurors turned into media stars. In addition, the trial was apparently the first time that a helicopter was used to gather news. The jury visited the Sheppard house on the first day of trial. The time of the visit was revealed so far in advance that one of the newspapers was able to rent a helicopter and fly over the house taking pictures of the jurors on their tour.

Not surprisingly, the Supreme Court granted Dr. Sheppard's habeas petition, concluding that he did not receive a fair trial consistent with due process. The Court admonished the trial judge for not responding forcefully to the pre-trial publicity about the case:
[T]he court should have made some effort to control the release of leads, information, and gossip to the press by police officers, witnesses, and the counsel for both sides. Much of the information thus disclosed was inaccurate, leading to groundless rumors and confusion. . . . Under such circumstances, the judge should have at least warned the newspapers to check the accuracy of their accounts. And it is obvious that the judge should have further sought to alleviate this problem by imposing control over the statements made to the news media by counsel, witnesses, and especially the Coroner and police officers. The prosecution repeatedly made evidence available to the news media which was never offered in the trial. Much of the "evidence" disseminated in this fashion was clearly inadmissible. The exclusion of such evidence in court is rendered meaningless when news media make it available to the public. . . . The fact that many of the prejudicial news items can be traced to the prosecution, as well as the defense, aggravates the judge's failure to take any action. . . . Effective control of these sources—concededly within the court's power—might well have prevented the divulgence of inaccurate information, rumors, and accusations that made up much of the inflammatory publicity, at least after Sheppard's indictment.
Having concluded that "the court's fundamental error is compounded by the holding that it lacked power to control the publicity about the trial," the Court specifically set forth the ways in which the trial court could have controlled potentially prejudicial publicity:
More specifically, the trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters, such as the refusal of Sheppard to submit to interrogation or take any lie detector tests; any statement made by Sheppard to officials; the identity of prospective witnesses or their probable testimony; any belief in guilt or innocence; or like statements concerning the merits of the case. . . . Being advised of the great public interest in the case, the mass coverage of the press, and the potential prejudicial impact of publicity, the court could also have requested the appropriate city and county officials to promulgate a regulation with respect to dissemination of information about the case by their employees. In addition, reporters who wrote or broadcast prejudicial stories, could have been warned as to the impropriety of publishing material not introduced in the proceedings. . . . Had the judge, the other officers of the court, and the police placed the interest of justice first, the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom—not pieced together from extrajudicial statements.
There is an old legal adage that "hard cases make bad law." The "carnival atmosphere" that surrounded the Sam Sheppard murder case, and the fact that the trial court judge not only did little to curb it, but in some instances facilitated it, may have led to the Supreme Court's conclusion that trial court judges must use "strong measures" to ensure that the accused receives a trial "free from outside influences." Absent the circumstances in this case, it is difficult to reconcile the Supreme Court's statements that the judge "should have at least warned the newspapers to check the accuracy of their accounts," that "reporters who wrote or broadcast prejudicial stories could have been warned as to the impropriety of publishing material not introduced in the proceedings," and that "the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom" with the freedom of the press guaranteed by the First Amendment.

Tuesday, August 24, 2010

Grounded Rocket

United States District Judge Reggie Walton has decided to shut down Roger Clemens' inner Blagojevich. As you may know, the seven time Cy Young Award winning pitcher was indicted last Thursday for perjury and obstruction of justice related to his testimony before Congress in February 2008 denying the use of performance enhancing drugs. Shortly after the charges were announced, Clemens posted the following statement on Twitter:
I never took HGH or Steroids. And I did not lie to Congress. I look forward to challenging the Governments accusations, and hope people will keep an open mind until trial. I appreciate all the support I have been getting. I am happy to finally have my day in court.

In addition to this tweet, Clemens' lawyer, Rusty Hardin, held a news conference in Houston during which he said that the government was wrong to charge Clemens and that he looked forward to proving his innocence. Finally, on Friday Clemens appeared on a Boston radio station to further proclaim his innocence.

Apparently, all of this was too much for Judge Walton, a no-nonsense jurist who presided over the Scooter Libby trial. Last night he issued a sternly written two-page order directing "all interested participants [to] refrain from making any further statements about this case to the media or in public settings outside the courtroom." Judge Walton noted:
There has already been extensive media coverage about the case fueled, at least in part, by the comments made by the defendant, the defendant's counsel [and] individuals who presumably will be witnesses if this case proceeds to trial . . . To issue public comments to the media that, whether intentional or not, may affect the ability of the court to empanel an impartial jury (and to maintain the jury's impartiality throughout the trial if one is empaneled) the undersigned member of the court will not tolerate such behavior from anyone."
Judge Walton added that any violation of his order "will be confronted with the full authority of the Court."

Monday, August 23, 2010

Getting The Communications Professionals And Lawyers To Work Together In A Crisis

Over the weekend, the New York Times published a lengthy article on the public relations and crisis management mistakes of Toyota, Goldman Sachs, and BP: "P.R. Missteps Fueled Fiascos at BP, Toyota and Goldman - In Case Of Emergency: What Not To Do," The New York Times, August 21, 2010. Of particular interest to me was the discussion of how conflicts between the public relations consultants and the legal team can contribute to an ineffective public relations response to a crisis. For example, in the case of BP, the conflicts between the two groups was described as follows:

The company had to contend with a classic corporate quandary of balancing advice from counselors with starkly different considerations, according to people familiar with BP’s deliberations who requested anonymity because the advice was confidential. In times of crisis, communications professionals and lawyers often pursue conflicting agendas. Communications strategists are inclined to mollify public anger with expressions of concern, while lawyers warn that contrition can be construed as admissions of guilt in potentially expensive lawsuits. For BP, this tension burst into view in May, when executives went to Capitol Hill with officials from two of its contractors: Transocean, which owned the offshore rig that exploded, and Halliburton, which aided BP in drilling. Executives from the three companies each disowned culpability while pointing fingers at one another. “What that screamed is the lawyers are in control,” says Mr. Reeves. “All it did was get everybody all the more peeved at them.”

The author returned to this theme later in the article in the following discussion about Toyota's public relations problems:

Above all, crisis management is conducted with stress and sleeplessness layered atop the usual factionalism and politics afflicting any big organization. Mr. Dezenhall, the strategist, is amused by crises as glimpsed in movies, where people sit at banks of synchronized computers, speaking calmly into headsets. “The reality is absolute chaos,” he says. “Nobody knows what the facts are. The lawyers are trying to get the P.R. consultants fired and the P.R. consultants are criticizing the lawyers. Everybody despises each other. It’s a totally unmanageable situation. A corporation in crisis is not a corporation. It is a collection of panicked individuals motivated by self-preservation.”
As a lawyer and communications consultant, one of my objectives in a crisis situation is to make sure that the communications professionals and lawyers are working together instead of pursuing potentially conflicting agendas. Often this involves convincing the legal team that effective crisis management and brand preservation can work hand-in-hand with the legal strategy, while at the same time convincing the communications professionals that legitimate concerns about corporate liability must be taken into account in designing the communications strategy. The client is the ultimate beneficiary when each group of professionals gives a little rather than seeking to dominate the other.

Monday, August 9, 2010

Social Media Shenanigans?

Last month I blogged about a dispute between Westwood College, Inc., a for-profit college, and some of its former students who contend that the school violated consumer protection laws. The plaintiffs were allegedly recruited through a Facebook page, Warnings About Westwood, and a website, westwoodscammed.me, both of which were started and maintained by a law firm in Tampa, Florida that is representing the students. Westwood has filed a defamation lawsuit against the law firm, alleging that it was smeared by the law firm's use of social media like Facebook and Twitter to spread the word about Westwood.

Westwood is not the only company that has filed suit alleging it is a victim of social media. Corporate Counsel is reporting that on August 2, 2010, Ocean Spray Cranberries, Inc. filed a lawsuit in federal court in Boston against Decas Cranberry Sales, Inc. Ocean Spray alleges that Decas hired InkHouse Media + Marketing to develop a "false and misleading social media campaign." Ocean Spray contends that InkHouse, on behalf of Decas, launched a website called "Scamberry.org," which reported that Ocean Spray was selling a sweetened dried cranberry product made largely from corn syrup and few cranberries. According to Ocean Spray, the scamberry.org site made no mention of Decas; instead it was attributed to "the Scamberry Initiative" and described Scamberry.org as "a consumer education initiative about mislabeling." In addition to the website, Ocean Spray also alleges that Decas used "internet blogs . . . , Facebook accounts, YouTube videos and Twitter postings that . . . led consumers to believe that [Scamberry.org was] an independent non-profit consumer advocacy group" rather than Decas itself. Ocean Spray alleges Decas' actions violated the Agricultural Fair Practices Act, the Lanham Act, and the Massachusetts Unfair and Deceptive Trade Practices Act. The Corporate Counsel article about the Ocean Spray lawsuit can be found here.

Thursday, August 5, 2010

Always Be Prepared

I have been helping a client with media training this week. It is extremely important that corporate representatives be prepared with a message and talking points before going out to face the cameras. The representatives should also be coached through a session where they face likely questions and have formulated answers that are both credible and advance the corporate message. If you follow the link below, you will see an instance where a corporate representative was unprepared to go on camera.