Former federal prosecutor Kendall Coffey worked on some of the nation's highest profile cases, including the Elian Gonzalez case and the 2000 presidential election recount. He spoke with The Crime Report's Cara Tabachnick about his most recent book, Spinning the Law, which examines the challenges of trying cases in the court of public opinion.
The Crime Report: In your book, you wrote that what the press experiences in high profile trials is not really what goes on every day in courtrooms. Can you expand on that?
Kendall Coffey: I often wonder if the public knew, in Florida for example, how totally overwhelmed judges are with foreclosure cases?they can barely find time for other hearings?maybe they would support more courtrooms and more judges. The point is that the actually litigation experience day to day is simply a matter of resources and other realities, and will not ordinarily match up to the prime-time exposure in the high profile cases.
TCR: You discuss why it is so important for the press to have access to the justice system, Why do courts go to such lengths to keep the press out?
Coffey: There is an inherent dilemma of free press vs. fair trial. It is important to recognize that any conflicts are overwhelmingly going to be resolved on the side of a free and open press. Lawyers I interviewed for the book generally agreed with that. [But] accusations, and most especially criminal charges, never find a presumption of innocence in the court of public opinion, [where] the presumption is guilty. That's why a lot of thoughtful lawyers try to level the playing field by finding ethical ways to get their message out to the public. The courts have tools to try to protect the rights of the accused, but they have limited tools; and a true gag order is not routinely given. It's usually found in just the most extreme cases, as in the Scott Peterson case.
There are other levels of protections that judges apply, but very selectively. It might be a situation involved the rights of minors, of children, where you could justify something like that; or there will be an order to withhold documents for a time. We saw a lot of that in the Michael Jackson case. But the bottom line is we need to have an open process, and that includes access to the press. Attorneys can and should look for ways within the ethical rules to level the playing field, if possible.
TCR: Inside the courtroom, the judge wants to see attorneys that can agree or disagree, and he or she is also forgiving of mistakes, which the press isn't. So how do you reconcile that in a public trial, when there are bound to be mistakes?
Coffey: In high profile cases, attorneys just try that much harder, because everybody is watching, and everybody second-guesses what you do. Your mistakes are going to get exposed as they never been before. The only cure for second-guessing is winning, which isn't always possible, but judges are forgiving—I mean everybody makes mistakes. But that is not necessarily true with the press. It's like walking through a minefield for words. There used to a much more forgiving process inside the courtroom. [Now, attorneys] have to know that the minute they speak to a reporter, especially if they are on record, [their words] could come back to haunt them, and they won't be able to file a motion to amend. We are used to filing motions to amend all the time. You can't do that with your comments at a press conference.
TCR: You discuss at length a press strategy used by defense attorneys of leaking alternatives theories of a case in order to raise questions about a defendant's guilt. Why do attorneys use such a precarious route, one that is likely to backfire?
Coffey: If you think that your client may actually be guilty, you are [desperately] trying to float theories without vouching for them. This is done to create some other explanations. Asserting a client's innocence is always appropriate. But if you say 'my client's wife may have been killed by a satanic cult,' which is an eye catching theory, is there ever going to be evidence for that? Can it backfire with the press? For sure. Does that mean it's a bad idea to float different things? You are trying to [persuade] the public that maybe there is a second side to the story.
TCR: Courts now ask prospective jurors in questionnaires if they have ever been a news blogger. How should the justice system handle 24/7 media and the rise of citizen journalism?
Coffey: I think is fair to ask about blogging habits. You want to learn as much as you can about the Internet habits of jurors. Lawyers need to know how many Google or [use] Yahoo. How often? How many turn to Wikipedia when they want to get information? But what you do with it is more difficult. Because no matter how many times a judge reminds jurors that they are not supposed to be looking up stuff on the Internet, they still do it.
Judges will be extremely supportive of attorney efforts to suppress Internet usage, but all of us think that inevitably it happens. And so part of the challenge for an attorney is considering doing more than simply ask the judge to give the same instructions every morning, or maybe even every other afternoon. Some lawyers pay a lot of attention to what's on the Internet and maybe [attempt to] deal with some of it proactively. For example, Roy Black [Ed Note: a well-known defense attorney quoted in the book] told me that one of the first things he does is go through a client's website. A lot of people have stuff that they think was a good idea at the time but may or may not play well on their case.
Others will go as far as to say “can I improve my media play on the Web?” In the Internet world, proactively studying what's going on with the search engine and getting out some better stuff so that if jurors do start looking it up, [can produce] some good articles.
Cara Tabachnick is news editor of The Crime Report
Photo by (George) Ali Blackburn via Flickr.