Sometimes a high-profile criminal or (less-commonly) civil trial catches the public eye. Think O.J. Simpson, or a Supreme Court case dealing with a “sexy” constitutional issue (free speech, religious freedom, gun rights, etc.).
And sometimes, a lawyer who worked on one of those cases will write a book or screenplay about his or her experiences in working on the case, and get a publishing deal. There’s nothing inherently wrong with this. After all, lawyers can write books just like anyone else. The First Amendment applies to them, too. And if someone is willing to pay them for their book, good for them.
However, lawyers are bound by extremely strict ethical rules that don’t bind members of other professions. These include rules mandating the maintenance of client confidence, and avoiding like the plague any conflict of interest.
It’s not hard to see why this could raise problems. He or she might resort to courtroom and public theatrics, to make it more sensational. In short, they might expend significant amounts of energy on something other than the job for which they’re paid: representing their individual client, or, in the case of prosecutors, the people of their state.
Not surprisingly, some states have enacted ethics rules that deal specifically with this issue. Most of them bar lawyers from signing book deals about a case until they’re completely finished working on it. Usually, this means that they aren’t supposed to agree to a book deal before the case has concluded, in its entirety.
It’s not clear if Indiana has such rules, but this prosecutor inked his deal before the sentencing phase of the case. He notes that the contract stated that he wouldn’t start writing the book until his involvement in the case ended, but it’s not hard to imagine that this deal would be in the back of his mind the entire time, which might influence his decisions in how he handles the case, even if it’s completely subconscious.
Cases like this raise the interesting issue of balancing a person’s right to a fair trial with their right to a public trial. Now, in the vast majority of cases, these rights aren’t in conflict. After all, if the proceedings of a trial are transparent and visible to the public, that visibility (in theory) keeps everyone involved honest. However, in this era of mass media, this right to a public trial means that some cases are going to become media sensations (or, depending on who you ask, circuses).
However, what if somebody directly involved in the case, such as the prosecutor or defense attorney, stands to make a significant amount of money from the publicity surrounding the case? It seems impossible for that to not drive a lawyer to try to either draw the case out, or make it more dramatic, to the detriment of his client’s interests.
I’m not exactly clear how this problem should be solved, and it probably doesn’t get a lot of attention because it’s a total non-issue in the vast majority of criminal cases. The overwhelming majority of criminal trials – probably more than 99% – in the U.S. don’t get much more media attention than a write-up in the local paper, let alone a book deal for one (or more) of the attorneys involved.
However, just because this situation is quite rare doesn’t change the fact that it’s a problem. And if you’re a criminal defendant, and you suspect that your defense attorney isn’t representing you to the absolute best of his or her ability because he or she is trying to make the case more sensational, you’re probably not going to care that your situation isn’t very common.
I don’t pretend to have a perfect solution to this issue. Maybe the media shouldn’t try to sensationalize everything. Of course, they’re just doing what the public demands, so maybe we, as a society, should drop our obsession with news stories which are sensational, but ultimately of very little practical importance. Yeah, and I’ll fly a solid gold rocket to the moon.
In all seriousness, the best (though certainly imperfect) solution is the one we’ve got: strict ethics rules for lawyers addressing situations like this.