S4 E4: Trying a Case in the Public Eye

In a world where true crime reigns supreme, and all those of us with access weigh in, what is it like to be the lawyer trying a case in the public eye? Jocelyn talks in detail about being hired on a case where a false narrative went "viral" and the efforts of the alleged victim's lawyer to obtain a gag order to stop her from talking to the media and releasing content. What are the ethical considerations when a lawyer talks to the media? Even if the lawyer is allowed to, should they? Where are the lines drawn? Are a prosecutor's responsibilities different than a criminal defense attorney's? And if so, how? Find out how one military judge weighed in on the efforts to silence @MessyMilitaryLawyer.

Under the ethics rules, not only can a lawyer correct the narrative in the public eye, an attorney defending someone has an ethical obligation to do so. One of the major carve outs to the general prohibition to extrajudicial statements is when public sentiment could prejudice the case. Find out what rules, where the meat of the rule lies, and how and when to use it to defend against the public's belief that a defendant is guilty.

The general ethics rule on lawyers' statements to the media is ABA Model Rule 3.6, Trial Publicity.

Can a lawyer talk to the press about a case?

Many people assume a lawyer working on a case has to stay silent in public, or that attorney-client privilege stops them from saying anything at all. Jocelyn says neither is quite right. The general rule on lawyers and the media is ABA Model Rule 3.6, Trial Publicity, and most states have adopted it in some form.

The rule is aimed at "extrajudicial" statements, meaning things a lawyer says outside the courtroom record. What is said in open court is fair game for the press. What the rule restricts is a lawyer in the case making an outside statement that they know, or should know, will be spread publicly and that has a substantial likelihood of materially prejudicing the proceeding.

What does Rule 3.6 allow a lawyer to say?

As Jocelyn explains it, the rule has a "safe harbor" of things a lawyer may generally say: the claim or defense involved, information already in the public record, that an investigation is in progress, scheduling, a request for help obtaining evidence, and warnings of danger. In criminal cases that also includes the accused's identity, residence, occupation and arrest information.

The part that matters most to defense lawyers is the right of reply. A lawyer may make a statement a reasonable lawyer would believe is needed to protect the client from the substantial undue prejudicial effect of recent publicity that the lawyer or client did not start. The reply has to be limited to what is necessary to mitigate that publicity.

In Jocelyn's view, that is more than permission. When a false story is gaining ground and the client has a defense to it, she says the lawyer has an affirmative duty to correct it. That means talking about the defense and the law, not offering personal opinions.

There are also clear limits. She walks through topics treated as likely to prejudice a criminal case, including a witness's character or credibility, expected testimony, the possibility of a plea, confessions, test results, any opinion on guilt or innocence, and information likely to be inadmissible at trial.

What is a gag order?

A gag order is a court order that limits what the lawyers in a case can say outside of court. In this episode, Jocelyn describes being on the receiving end of a motion for a protective order filed by the alleged victim's counsel in a court-martial. In her words, its purpose was "effectively to gag me," to stop her from making extrajudicial statements about a case that had already gone viral before she was hired.

Even when the rules allow a lawyer to speak, Jocelyn says that is only the first question. "Just because I can, does that mean I should? That's a question that's very different from, am I ethically precluded."

The members section covers how that gag-order fight played out, what the military judge ruled, and the lessons she took from it.

Topics: Fort Hood Shooting