Friday, December 2, 2016

Pretrial Publicity - Attorneys Talking to the Press: Narcissism or winning legal tactic?

It’s more fun to discuss legal issues in the context of a case study. At least for me it’s easier to remember the lessons from something concrete. Consequently, we will look at pretrial publicity (PTP) through the lens of the Ammon Bundy “Oregon Standoff” case.  

But first let me summarize the ethical rules on attorney pretrial publicity, at least in Oregon: Don’t lie, don’t do it as the jury is walking into the courthouse, don’t lie. 

Why talk to the media at all? What’s the point other than to toot your own horn?

When to Comment to the Media – Steps to Deciding

Question 1: Does it help the client?  Is it in their best interests? 
The goal is not to just see your name in in the newspaper or to hear your soundbite on the radio or TV.  The goal is not, legally speaking, to make your client “feel good,” although that might be the client’s goal, which may or may not help the case. Nonetheless, the attorney’s goal is to do what is best for the case. And I will get back to that point in a moment.

After you decide it’s in the best interest of the case/client to speak to the press, you determine and draft your talking points and labels (terms that you want to stick out there).  Then you need to look at what you intend to say and ask other questions.

Question 2: Is it true?

This is so important for a number or reasons.  First, you are selling credibility as a lawyer. Credibility to the jury, judge and opposing counsel.  Credibility to your potential clients wanting to hire you and credibility to other attorneys referring you cases.  And of course, there’s an ethical rule aside from the pretrial publicity rule that prevents attorneys from lying.  Rule 4.1 says you shall not knowingly make a false statement to others.

Rule 4.1 Truthfulness in Statements to OthersIn the course of representing a client a lawyer shall not knowingly:(a) make a false statement of material fact or law to a third person; or(b) fail to disclose a material fact when disclosure is necessary to avoid assisting an illegal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Question 3: Will you always be able to stand by what you said? Will you ever have to retract it? 

The internet is forever and it’s hard to retract credibly, unless you are the president-elect. This is especially important for statements made before discovery has been received.  There are many good reasons for making a statement at such time, which is probably the most important time to speak publicly, but there are risks.  The risks are that you might end up being wrong and it makes you and your client look bad.  

Consequently, you have to be very sure. For instance, in the Gerald Strebendt case, I avoided mentioning many of the positive things about the shooting incident because I was unsure if it would be proven or disproven later. I believed my client, but I didn’t trust his memory 100%. This dilemma is discussed in detail in the book Finishing Machine: Was it Road Rage Murder or Self-Defense? A Trained Killer's Fight for Justice (True Crime Defense Attorney Case Files Book 1) . Therefore, the last thing you want to do doing is retracting.

Question 4: Does the client consent? 

Before your comment, make sure you have the client’s permission after giving him the costs and benefits. Cover some worst-case scenarios for publicly revealing this along with potential benefits. An oral agreement is fine, but follow up with a confirming letter even days later if you are time crunched. Write, for example, the following: “This confirms our conversation yesterday where you instructed me to comment to the media about your potential defenses and to respond to media inquiries on your behalf at my discretion.”

Why talk to the press at all? What’s the point

Recall that the first question you asked yourself before making a statement was, “Does this help the client?” Well, can it?

First you need to determine your strategic objections, which hopefully you have been doing with your client from the first day of representation.  Generally, your strategic objective in every case is whatever your client’s goal is.  It could be a dismissal or a not-guilty verdict, or maybe just a deal he can live with. 

Typically, the client wants a dismissal first, a plea deal they can live with (minimizing adverse consequences), or a not-guilty verdict.  This is based on risk vs. benefit analysis.  Pretrial publicity can help achieve any of these things. 

Using pretrial publicity to encourage settlement is a way make their decision of trial more difficult than their decision to settle with terms you can live with. 

Political pressures on decision-makers (i.e., DA). 

This is higher-level strategy issue that is best left to you on a case-by-case or more importantly a jurisdiction-by-jurisdiction basis.  Some DA’s offices hate to lose and the ADA’s actually have the risk of getting fired if they are not politically protected in the right office clique.  Lane County, Oregon, has traditionally been an example of that.
Other jurisdictions could care less and would rather a jury make all the tough decisions, i.e., Washington County, Oregon tries a lot of cases and loses a lot of trials. They will try anything there and don’t mind losing. 
If you don’t know if your DA responds to political pressure, i.e., public scrutiny, give it a try and check out the result.  All DA’s and people in general want to look good.

How does this help or hurt my next client? Or, don’t crap where you eat. 

You need to redefine the culture of what it means to be a lawyer and reset the rules.  This is just another tool. Be indignant about it.  But be polite.  And don’t personally attack others (attack their decisions and actions sometimes) and you will be fine.  Don’t be cowardly. You represent this client now. 

Reversing negative publicity that can affect your jury pool – Source Confusion

This is the most nuanced and most important factor in my opinion.

Dan Reisberg’s book, The Science of Perception and Memory: A Pragmatic Guide to the Justice System, covers the psychological literature on the factors relevant to this decision.  You should get the eBook form or get the print edition. It’s a big help. And, it will save you some time from calling Dr. Reisberg to see if he can help on a change of venue or other expert issues (confirmation bias, etc.)
The most important to reason to talk early and often is to inoculate your client against juror source confusion.

“These errors are examples of source confusion because, in each case, the person is correct in recalling that a particular bit of information was somehow part of his or her past but then is confused about the source of the information—and so recalls it as part of the original event when, in fact, the information came into the person’s experience via some other route.”
Reisberg, Daniel, Professor. The Science of Perception and Memory: A Pragmatic Guide to the Justice System (Page 70). Oxford University Press. Kindle Edition.

Witness ID issues (basis of case law in the ground-breaking Lawson case).

Source confusion of a jury, discussed below, is the same memory error that we see in witness misidentification cases.  According to Reisberg, “In each case, the person is correct in recalling that a particular bit of information was somehow part of his or her past but then is confused about the source of the information—and so recalls it as part of the original event when, in fact, the information came into the person’s experience via some other route.”

Source confusion: confusion about who said what – The Honsowitz effect

Problems arise when a remark by one person is misattributed to another.  This is very dangerous in a trial.  This is called the "Honsowitz Effect."

The late Eugene, Oregon, attorney Bill Honsowitz once had a trial with our office where he asked these annoying leading and accusatory questions to our client where she denied every single one of them.  He would ask, “Isn’t it true that you only fed the kids suckers and candy for dinner?”
Answer: “No, that’s not true.” 

He would ignore the answer and continue: “Isn’t it true that you did this in front of witnesses.”
Answer: “No.”

Then, in the judge’s findings of fact, he actually adopted the statements made by the attorney and misattributed it to a witness that never materialized. It was fixed in the findings of fact but it didn’t change the judgment.  We lost.  That client lost.  She lost custody on a very thin record of mainly accusations. 

Now, imagine this in a jury setting.  They get back there in deliberations and they can’t remember if the info came from a question, an answer, or something they recall from months earlier. Perhaps a question refreshed a recollection that was never proven up but they now take as fact.  But it’s source confusion.  They don’t know that they’ve mixed up the result.  It’s unconscious and not deliberate. 
Reisberg’s conclusion (backed by social science research) is that pretrial publicity results in source confusion. 

“The research here is straightforward: Jurors are exposed to PTP, then to a trial, and then questioned about which pieces of information came from which source. In these studies, source confusion has been observed in individuals’ recollection of real trials in which they have served as jurors and also observed in research participants’ recollection of simulated trials. In the data, source confusion is evident even when the information in the PTP was inaccurate (as sometimes it is) or if the information would have been inadmissible if it had been presented in trial.”
Reisberg, Daniel, Professor. The Science of Perception and Memory: A Pragmatic Guide to the Justice System 

Other factors increasing source confusion (or at least not alleviating it).

1. Complex cases

Sources confusion is more likely when trial is long and complex, which are typically the types of cases that have the most PTP.

2. Older PTP is the problem

Do continuances help?  Source confusion happens even if PTP was a long time ago.  The passage of time actually makes it more difficult to do the internal bookkeeping of recalling where they got their information.  In essence PTP effects grow stronger if there is a delay between the presentation of the PTP and trial. 

3. Deliberations can compound source confusion.

Deliberations don’t fix it.  The jurors who do the fact “correcting” in deliberations are often the ones most confident about their memories because, possibly, they are most imbedded due to source confusion.  Remember, it’s not intentional.  It’s a confusion of the source. 

PTP source confusion remedies:

1. Continuance: doesn’t work as stated.

2. Cautionary instructions: They don’t work.  “Don’t think of an elephant” is an impossible instruction to follow. The social science research on that is called “Reactance Theory” and can be found here.  The reason the instructions don’t work is because source confusion is indeed confusion about the source so they don’t know to disregard it. 

3. Voir dire Promise not to consider PTP: they can’t deliver on the promise because they are confused on the source.

Confirmation bias: PTP also increases that

Confirmation bias is the theory that we are more likely to notice and/or accept evidence consistent with our views, particularly if views were established due to the PTP.  Basically, the narrative that is set early on is filtering out unfavorable evidence.

Remedies: there aren’t many since this is an emotional response that is automatic and unconscious.

What about voir dire: The Skillman v. United States Enron case essentially says that you can always fix pretrial publicity in voir dire by just getting a lot of jurors and asking a lot of questions. 
My theory is that that’s easier in large metro areas because what is important gets drowned out by other publicity. The smaller the county and the more notorious the crime, the more effect PTP. 

Change of Venue is the only remedy: who has filed a change of venue? Who has won one?  Not many.  If it’s an unlikely or impossible solution, what else can be done?

My theory is: Inoculate the jury prospectively and reduce the chances of source confusion by giving the other side to the story.

Other Reasons for Pretrial Publicity (Crowdsourcing and Getting witnesses to contact you):

It turns out that people are more willing to contact you if your narrative is something not distasteful to them. In essence, they are more likely to inconvenience themselves by affirmatively reaching out if you have a defense or some other equity that favors your client that they know about.

(Photo: A volunteer attempts to contact witnesses in a murder case.)

Consequences for the attorney: What will happen if you do this?  (You need a thick skin)

Lots of calls: from witnesses; from people complaining.
Be prepared to have the office handle calls. Have procedures in place.

Lots of attacks: people will rush to criticize everything. Keep in mind this is the vocal minority and most people passively internalize media and don’t get all fired up. Remember that 5.9% of the population has borderline personality disorder.  6.2% have narcissistic personality disorder.  And 3% of men and 1% of women have anti-social personality disorder.  10% have borderline plus narcissistic.  And, most importantly, these broken people make up 90% (my made-up statistic) of those that feel compelled to comment on the internet (trolls). 

Dealing with them on social media: Facebook and Twitter is a blessing and a curse.  You can’t do most media campaigns without them and you can’t control very easily the trolls from trying to take away from your message or disparage your law firm.  To counter this, you can set certain automatic restrictions on curse words and other buzz words important to your case to keep the social media review labor time to a minimum.  This is really only an issue in a nationally important case. 

Bar complaints: The ultimate in trolling a lawyer is a frivolous bar complaint, which can be done in a matter of seconds anonymously in Oregon. It takes time and/or money to respond and can be very stressful.  Hence the propriety of spending more money on someone like Peter Jarvis. If you are going to be handling these sorts of cases, have someone on retainer and have a canned media response ready to go.  And don’t sweat it.

Ammon Bundy’s Case as a Case Study in Challenging Media Bias (and thus inoculating from source confusion)

The news coverage of the Malheur refuge occupation before the arrests was very negative.  The media was calling them militants and extremists, as well as calling them “protesters.”  The ratio of good words versus bad words (extremists/militants) was about even in the media: 1:1 to 1.5:1
But on the internet in general it was 3:1, positive to negative. 

Immediately after the arraignment, Lissa Casey and I went on the courthouse steps to begin to change the narrative. We were offering a pure “political protester” and “little guy vs. big bad government” narrative.  We hired a media consultant to help define the issues and the message.  My position has always been that the “Patriot Movement” needs a PR expert.  They appeared very bad at it.  They were good at energizing their supporters but weren’t doing a very good job of making their message relevant to the public (i.e., their jury pool). 

In the hours and day following the arrest, the Bundy case coverage was roughly even protester vs. Extremist/Militant, meaning it got slightly worse for our client right after the arrest. 
The month after me publicly calling him a protester every day in press conferences and personally establishing relationships with reporters, editors, and producers that this was a political case had some anecdotal results.  Several major media players agreed to challenge their narrative a little more and began doing more open-minded coverage. In other words, they only print what they are fed, so we started to feed them lots and lots about the protester and David vs. Goliath narratives.  I noticed the press started asking me questions about the “protesters” more than before.

By the first month into the case, the media narrative started to change favorable.  The media was now calling them protesters 3-1 over negative terms.  However, the internet support dropped from 3:1 to 2:1

Media was 3 to 1.  That’s triple the positive coverage.

The Internet support (proportionally) dropped dramatically immediately after from 3:1 to 2:1, meaning the vocal minority in the public where posting more negative things than positive about the protesters online. 

Then we got some momentum.  We starting getting our client statements out and he started doing interviews.  That had a great impact in the press calling him positive things because they were presenting his and my own words.  We had a media consultant fly in to assist with these initial news conferences and we rebranded. 

In that month while he was a “hot commodity” in the press, we were able to get 4-1 positive to negative descriptors about our client, while the public still was steady at 2-1.

Then it leveled out to 3:1 for news and stayed consistently 2:1 for the public. 

(Graph: Note the jump in positive coverage after arrest, which peaked in the midst of the media blitz, bottomed out mid summer and then leveled back out just before trial, continuing steady even after the acquittal.)

Conclusions to be drawn

I have no idea what impact if any our media plan had, since correlation is not causation.  However, I do know this: It’s not often that news coverage gets better for a client after his arrest.

Remember that Dr. Reisberg says that the initial coverage is what sticks with people the longest.  So by a month or so into the case, our work was pretty much done and the narrative had been effectively reframed. 

Click here for a sample media policy.

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