Washington Lawyer

Books in the Law: Spinning the Law

From Washington Lawyer, February 2011

By Ronald Goldfarb and Leonard H. Becker

book_spinningSpinning the Law: Trying Cases in the Court of Public Opinion

By Kendall Coffey
Prometheus Books, 2010

Review By Ronald Goldfarb

The court of public opinion can be as important as the trial before judges and juries, Harvard law professor Alan M. Dershowitz instructs in his “Foreword” to Kendall Coffey’s new book, Spinning the Law. “In today’s world of multimedia, twenty-four-hour news cycles, the role of lawyers does not stop at the courtroom door, or even at the courthouse steps,” Dershowitz writes. Coffey’s book draws on his extensive experience as a federal prosecutor, defense attorney, and media commentator, using engaging storytelling of notorious cases to explore how we have entered a new age where pundits are more visible than experts, and images can trump reality.

Coffey’s thesis is that “human affairs are always about the narrative, and whoever spins the narrative controls the story—and often its consequences.” Toward demonstrating that conclusion, Coffey summarizes several historic cases—Socrates in 399 BCE, Joan of Arc, Aaron Burr, and Oscar Wilde. Coffey’s abbreviated analyses of those cases left this reader wondering about their relevance to modern spin. His review of several celebrated 20th-century cases—the Lindbergh kidnapping, O. J. Simpson’s double murder trial, the Elián González custody case, and the notorious Florida election recount in 2000—add little to the coverage of those overexposed trials. Coffey has had interesting personal experiences—in the González and Florida election cases, and others—to equip him with fresh insights, but his accounts of them are more personal memoir than probing analysis of the use of media in notorious causes célèbre.

We are indeed in the post–O. J. era of media and law. With a few notable exceptions, television and movie versions of the trial process are unrealistic. And the commentaries about minitrials of the moment, if not of the century, chewed over nightly by Nancy Grace and her cabal of cable commentators, are more popular than the fact- and reality-based court cases featured on truTV (formerly Court TV), and more incessant than the snippets on the evening news. However, even Coffey agrees that their influence on the administration of justice is questionable. “You need evidence in a courtroom, but delicious speculation is a great tidbit for hungry media,” he writes.

Coffey mentions the filtering techniques commonly used to prevent pretrial publicity from poisoning the justice administered at trials. The clash between the First Amendment’s guarantee of public, openly reported cases and observed trials and the Sixth Amendment’s guarantee of a fair trial before an impartial jury and the presumption of innocence is historic and confounding. Balances must be struck. Whether gag orders, changes of venue, continuances, or court instructions are effective means for assuring justice in widely publicized cases cannot be scientifically proven. Coffey describes these procedures, but he does not offer his conclusion about their effectiveness.

He notes that it may not be the judge and jury at which media coverage is aimed, but rather the reputation of the party, or even the adversary with whom an attorney may be negotiating a settlement, which is the case more often than trials. Most cases do not go to trial, so most frequently it is the public that is spun, not the trial processes. Lying low may be the best course, minimizing press coverage, and attorneys need to know when that is best for their clients’ interests. “Some battles are best fought behind the scenes,” Coffey points out. At other times, daily briefings are required to mount a counteroffensive to the government’s case. Organized press conferences are ineffective, one expert argues, because they indicate weakness. Better be prepared when members of the press come to you, however, and be careful about what you say to them when they do. Judges and juries usually are more hospitable to trial lawyers than members of the press, who often thrive on contentiousness and disagreements.

Coffey has had extensive experience prosecuting and defending cases as well as dealing with media. He knows and quotes many trial lawyers who have been involved in notorious cases. He is a savvy tour leader of the trial system. He uses interesting case stories to explain such trial subjects as the value of circumstantial evidence; the rarity of the insanity defense (0.85 percent of all cases, and, at that, successful one-quarter of the time); claiming vendettas by prosecutors (recall how Robert F. Kennedy was “out to get Hoffa,” who just happened to be guilty); the value of cooperating witnesses; the rationale for high-visibility cases to make law enforcement points (actor Wesley Snipes’ tax evasion); and when detection becomes entrapment. Coffey is good at describing these issues and providing examples of them. But they do not add anything to the analysis of his overriding theme—spinning.

Coffey reminds readers of recent trials that dominated the news: Michael Jackson, Scott Peterson, Martha Stewart. But some of his so-called spin “lessons” fall under the category of “duh.” For instance, “television is visual, so are visions of guilt.” “Second-guessing is America’s favorite pastime.” “Hard-nosed strategies create hard feelings.” “The difference between zealous advocacy and dirty pool is not always clear. . .” Or this profound observation: “credibility is everything.” Really?

Indeed, some of Coffey’s lessons can be questioned using controversial cases he ignores. For example, one of his lessons is that “it is hard to outrun bad publicity by changing cities” through venue motions. But New York City policemen charged with racial brutality in one sensational case avoided conviction when their trial was moved to a distant, rural jurisdiction. Another Coffey lesson is that a big fish finds it “harder to wiggle through the strands” of a prosecutor’s net. Yet, his presentation of the Kobe Bryant sexual-assault case makes the opposite point. He cites another trial lawyer’s more likely conclusion about the Bryant case: “celebrities are more likely to get charged and more likely to get acquitted,” probably because they have the resources to fight the disproportionate power of prosecutors. However, resources did not help National Football League stars Plaxico Burress or Michael Vick whose notoriety might have hurt them. Another Coffey lesson is that “a stand-up spouse” is a “tried-and-true strategy.” Tell that to former New York governor Eliot Spitzer.

In Spinning, Coffey includes words of wisdom from prominent trial lawyers on the techniques of media strategy. As one veteran states, publicity can be “toxic,” discouraging prosecutors, judges, and juries from being empathetic. Yet, successful advocates instruct that trial lawyers have “an obligation to deal effectively with the media—it’s part of the job to take a proactive stance against reporters.” Another argues that “sometimes it’s malpractice not to change the atmosphere” generated by adverse publicity. Dealing with the media is a “minefield,” and the impact is “unquantifiable.”

Coffey’s chapter on “Prosecutors and the Press” suggests that high moral principles about seeking justice over victory often are not followed. Provocative, fact-filled indictments, selective police “perp” walls, and outrageously prejudicial prosecutorial pronouncements such as those made by Patrick J. Fitzgerald, the U.S. attorney for the Northern District of Illinois, about the Rod Blagojevich indictment (most counts were dismissed by the jury) push defense attorneys to attempt to even the playing field. The Vick indictment included 18 pages of shockingly prejudicial facts that went well beyond simply stating the case. The district attorney in the Michael Jackson case used a public relations company to deal with the media. Michael Nifong, the Duke University lacrosse team prosecutor, was disbarred over his misbehavior with the media, among other offenses. Coffey suggests—correctly—that bar associations look more critically at how politically elected district attorneys behave with media. While media-favored defense lawyers often are criticized, prosecutors rarely are. Nor are journalists whose access to prosecutors can damage innocent suspects. Former Democratic Congressman Gary Condit is a notable example.

One question Coffey mentions glancingly is whether media management is covered by the confidentiality privilege between lawyers and clients. Sometimes attorneys use nonattorneys to handle media. When celebrity clients use public relations experts, are their dealings privileged? In the Stewart case, a federal judge said it was, applying the questionable theory that the public relations strategy was not designed to influence the general public, but was meant to influence the government, which had been affecting events through unfair media coverage. Other courts have ruled, I think correctly, that public relations efforts are incidental to attorney efforts—influential as they may be. The generally accepted rule is that attorneys’ work performing nonlegal functions is not privileged. But attorneys involved in these efforts argue that their media management is integral to their legal work, mitigating liability, affecting the jury pool, and correcting wrong impressions created by adversaries, particularly the government in criminal cases. Readers curious to know Coffey’s thinking will not find clear examples here beyond “care should be taken.”

Coffey concludes that “real law and popular law often diverge.” He summarizes his ideas best in his final, most interesting chapter, “A Media Primer for Spinners,” which suggests many good ground rules: Reduce themes to a simple, single, thought. Do not be seduced or intimidated by the press. Attend to media management. Collaborate with media, but carefully. Craft message points. Suggest alternative theories. Use court records to make points. Get your message out early. “First impressions often become lasting ones,” he writes. Try to use others to make your points such as interested community leaders. Consider using public relations professionals. Recognize the emerging power of new media—blogs, tweets, and Web sites. Remember, winning the media battle does not matter as much as the one in court. Nonetheless, the adversarial battle does go on in and out of court.
Coffey’s summation: “No one knows exactly to what extent a victory outside the courthouse translates to a favorable verdict inside the courtroom, but … it is too important to be left to chance.”

book_brennanJustice Brennan: Liberal Champion
By Seth Stern and Stephen Wermiel
Houghton Mifflin
Harcourt, 2010

Review by Leonard H. Becker

It’s a safe bet that when President Dwight D. Eisenhower appointed Bill Brennan to the U.S. Supreme Court in 1956, neither the president nor his advisers had any notion of the consequences, for the Court and the nation, that would stem from the selection.

In their justly praised biography of Justice Brennan, Seth Stern and Stephen Wermiel have produced a comprehensive, compelling life story of the man who arguably ranks as the most important member of the Court to serve in the latter half of the 20th century.

The second of eight siblings, William J. Brennan Jr. was born in 1906 in Newark, New Jersey, and grew up in that city and its suburban environs. His parents were immigrants—in the words of the future justice, “blue collar, Roman Catholic, Irish.” Following graduation from the University of Pennsylvania and Harvard Law School, the young Brennan went to work as an associate at a leading Newark law firm, where he rose to become a named partner before leaving for military service during World War II.

In 1948 a fellow lawyer persuaded Brennan to accept appointment to the New Jersey trial court. There he caught the eye of Arthur Vanderbilt, a prominent figure in the state’s judicial system. After a year and a half as trial judge, Brennan was elevated to the intermediate appellate court. Less than three years later, he became a judge on the New Jersey Supreme Court.

In 1956, when Brennan was only 50, national lightning struck. President Eisenhower, given the opportunity to fill a vacancy on the U.S. Supreme Court, apprehended a difficult reelection battle in November, especially among Catholic voters in the Northeast. He instructed his attorney general, Herbert Brownell, to find a relatively young, Catholic, moderate Democrat with judicial experience on either a state or federal court. Brennan was virtually the only person in the country who met the president’s criteria. (Brennan earlier had come to Brownell’s attention as a spokesperson for judicial reform in the state courts.) It was no drawback to Brennan’s selection that his work as a state court judge had provided little opportunity to address the constitutional issues that were the meat of the Supreme Court’s business. Shortly after a half-hour meeting with Eisenhower, Brennan was named a recess appointee to succeed Justice Sherman Minton.

The Court that Brennan joined in the fall of 1956 proved tailor-made for his personable style and philosophical outlook. Justices Hugo Black, William O. Douglas, Felix Frankfurter, and Stanley Reed remained from the Roosevelt era, and Justices Harold Burton and Tom Clark from Truman’s. Chief Justice Earl Warren and Justice John Harlan were relatively recent Eisenhower appointees. From this assemblage, Brennan soon stood apart as a justice not overly infatuated with the sound of his own words, willing to negotiate and compromise to assemble a working majority.

In many instances, although far from all, Chief Justice Warren and Justices Black and Douglas formed a reliable core that, together with Brennan, left the quartet only one vote shy of a majority. Brennan honed the skill of selecting a suitable target for his ministrations and working to add another vote to the four-member bloc. The justice grew fond of instructing recent law school graduates who came to him each year as law clerks that the most important talent at the Court was “counting to five.” Warren quickly learned to turn to Brennan to assist in building and holding the magic five votes—and in at least one major school desegregation case, in holding a unanimous Court—notwithstanding serious, and sometimes bitter, internal divisions among the justices.

It would be a mistake to think that Brennan strove to command majority outcomes for their own sake, or that his greatest accomplishment lay in his ability to charm other justices to vote his way. He resisted—and resented—his caricature as the “jolly leprechaun” who sweet-talked his brethren into supporting his positions. Rather, while he labored patiently to achieve what he saw as fair and correct results in the cases that came before him, he kept his eye on the long run, taking half a loaf today, if need be, rather than spurning partial victories. He did not fear taking on writing assignments in controversial cases, even during his first year on the Court, when his nomination for a permanent seat remained pending before the Senate.

In later years, Brennan articulated a quest for “human dignity” as the touchstone of his constitutional jurisprudence. Over time, he authored a critical mass of opinions that collectively came to serve as hallmarks of the Warren Court—in racial desegregation of public schools and other places of public accommodation, in First Amendment cases dealing with free speech and the separation of church and state, in criminal justice and procedure, and in state legislative reapportionment. The achievement of which Brennan later said he was the proudest—his opinion for the Court in Goldberg v. Kelly, prescribing procedural due-process rights for welfare recipients—came in 1970.[1]

With the election of Richard Nixon in 1968, Brennan’s work shifted to rearguard action to salvage as much as possible of the Warren Court’s legacy from the depredations of the emerging right-wing dominance. The task was daunting. In fewer than three years, Nixon named four new justices: Warren Burger to replace Chief Justice Warren, Harry Blackmun for the disgraced Abe Fortas, and Lewis Powell Jr. and William Rehnquist for Black and Harlan. Even with the reconfigured Court, Brennan forged unexpected alliances in later years, particularly with Blackmun as the other half of the “Minnesota Twins” grew increasingly estranged in judicial outlook from Burger; with Powell, whose instinct for moderation paralleled that of Harlan and provided Brennan room for maneuver; and occasionally with Potter Stewart, whose pragmatic approach to decisions likewise left some space for compromise.

Nonetheless, Brennan’s later years on the Court disappointed the justice. The departures of Douglas and Thurgood Marshall were painful for him. Before his own declining physical health dictated his retirement, he gave considerable thought to leaving the Court rather than continuing a pattern of disagreement with the new right-wing majority. His dissents grew vitriolic, as the justice and his clerks egged each other on, in a tone at odds with Brennan’s amiability when he had written regularly for the Court.

One of the triumphs of the Stern and Wermiel biography, based on the authors’ painstaking study of Brennan’s extensive records, is the reconstruction of the justice’s work with his colleagues, not only in advancing libertarian causes in the opinions that he wrote for the Court, but in contributing to the outcome in opinions that came out under the names of other justices. Similarly, Stern and Wermiel ably interweave the personal side of Brennan’s life, both on and off the Court, with his judicial work.

As for his dealings with the other justices, of greatest interest was Brennan’s relationship with Frankfurter. The former Harvard Law professor (who evidently had not thought much of Brennan when he had had him as a student) lectured incessantly to Brennan’s law clerks as much as to Brennan himself, to the latter’s intense annoyance. Although Brennan had close working relationships with several colleagues, they disappointed him, each in his own way—Black, with his absolutist legal positions; Douglas, who had craved a shot at the presidency back in the late 1940s and had since become bored with his judicial role; and Marshall, who somehow lost the fire and drive that had characterized his brilliant career as a civil rights lawyer. Burger came across as a blundering, pompous figure whose unseemly manipulations as chief justice were of a piece with his inartful draft opinions.

Brennan also had his ups and downs with Harvard Law School. For years he relied upon a faculty professor to select his law clerks, even while he harbored a growing resentment that the school was snubbing him as an expression of its distaste for his opinions. Relations with Harvard ultimately improved, even as Brennan broadened his choice of law clerks to include candidates from other schools around the country.

The disaster that befell Abe Fortas, forcing his resignation from the Court, was chilling for all the justices, but especially so for Brennan, who had borrowed from a friend and had difficulty in repaying the loans when the lender called them in. For years after the Fortas affair, Brennan severed his connections with virtually all organizations where he previously had spoken or taught. He lived like a hermit, shuttling between the courthouse and his apartment on Connecticut Avenue.

Before entering Harvard, Brennan married Marjorie Leonard. For fear that his father would disapprove of his taking a wife before he could support her on an independent income, Brennan kept the marriage secret from his parents until after his father died. In time, Brennan and Marjorie had three children. When Brennan was appointed to the Supreme Court, Marjorie accompanied him upon his relocation to Washington, D.C. As with many wives who move to Washington in furtherance of their husbands’ careers, life in Washington was difficult for Marjorie. She died in 1982 after a lengthy, agonizing struggle with cancer. Less than four months later, to the astonishment of family, friends, and judicial colleagues, Brennan married his long-time court secretary, Mary Fowler. The remarriage rejuvenated the justice and undoubtedly contributed to his continuing tenure on the Court. A mild stroke convinced him that the time had come for him to retire, in 1990, after 34 years of service on the Court.

The Stern and Wermiel biography is hardly a work of unmitigated praise. The authors spell out in detail Brennan’s reluctance—refusal, really—to hire female law clerks even after the former clerk who had been asked to undertake the selection process protested in writing to the justice. Brennan’s firing of Michael Tigar as an incoming law clerk, based on right-wing criticism, receives unsparing treatment.

Undoubtedly, some critics will say that the country would have been better off without Brennan on the Court. For such observers, Brennan epitomizes the activist judge who legislated his personal preferences into law. Stern and Wermiel persuasively argue that in many cases, especially on women’s reproductive rights and equal employment opportunity, Brennan’s judicial decisions were at odds with his personal predilections. (The authors do not pass judgment whether these divergences made Brennan an objective jurist or a bit of a hypocrite.)

Another response to his critics is to embrace the results achieved by Brennan and to be thankful that his Court did not leave it exclusively to Congress and the state legislatures to deal with a nation that segregated its citizens in public places on the basis of race, that permitted the police to elicit inculpatory statements from detainees without apprising them of their right to remain silent and to have the benefit of legal counsel, that accepted the recitation of sectarian prayer in public schools, and that stood by while malapportioned state legislatures paralyzed the political process.

In a work that might have sunk beneath the weight of Brennan’s many significant opinions, Stern and Wermiel have succeeded in isolating the key cases and providing enough information about them to make the authors’ larger case for Brennan’s greatness as a judge. Above all else, what emerges from this splendid biography is the essential humanity of its subject—Brennan’s dedication to his life’s work, his constant effort to implement the great undefined principles of the Constitution for the betterment of people’s lives and proper treatment by their government—without glossing over the areas in which Brennan, as a man of his times, occasionally let down his own side.

Len Becker served as District of Columbia Bar Counsel from 1992 to 1999 and as general counsel in the Office of Mayor Anthony A. Williams from 2003 through 2006. He resides in Washington, D.C., and may be reached at lenbecker@verizon.net.

Note
[1] 397 U.S. 254 (1970) (opinion by Brennan, J., joined by Douglas, Harlan, White, and Marshall, JJ.).