Oregon prosecutor Joshua Marquis has expressed what appear to me to be some useful thoughts on the media's treatment of the prosecution. Now, if only that type of article could make the front page. Bashers

Sirs/Ma'ams,

Although I am not a member of your august group, I must commend the individual who posted the link on media bias. While I expect no reply, I have to say that this article is represntative of the student community.

Hopefully, both of the cases mentioned will result in a just finding, regardless of bias in presentation

Amen to the Marquis article. As someone who has been involved in a number of high profile media cases in recent years (not to the level of M. Jackson or K. Bryant, but still a lot of media for a little county), I can tell you that these comments are right on. The problem from my perspective is that when you carefully abide by the rules as a prosecutor, two things happen. You get bashed by the media hound defense attorney without being able to reply, and the media, faced with the problem of not having a story because you won't comment, will go find a new angle. That usually means they talk to the defense or the defendant because they have no qualms about trying to affect the case. The other problem is that there are so many media outlets competing for the story these days that they are constantly looking for a new spin. It's no good for them to just regurgitate what the other guy said so they've got to find a new "exclusive" story to put out there, which means manufacturing a disgruntled victim or a member of the public with extreme views, etc. I am not suggesting that we violate the rules of ethics but the old "can't comment" just isn't enough any more. We have to be creative and come up with ways to say more without crossing the line. Fact of the matter is, you've got a decision to make when you have some attorney like Garegos out there declaring his client's innocence to the world and attacking the credibility of witnesses in the press, sit back and let it happen or respond. I personally think responding to such an attack even if it may bend the rules is different than putting out your own information up front. It's time we realized and accepted that, sometimes, our cases are going to be tried in the press and there's nothing we can do about it except respond.

As I'm sure the denizens of this community recognize, we cannot stem the tide alone. To the extent we must suffer essentially without recourse through having the defense try their case in the media without response, a sizeable helping of responsibility falls on the state bar. Rule 3.07 of the Disciplinary Rules of Professional Conduct squarely addresses some of the problems Mr. Marquis identifies, yet actual discipline arising from violations of Rule 3.07 is almost unheard of.

Tim, you make a HUGE point that I suspect most folks don't factor into their thinking about the process: Reporters have no duty to ensure a fair trial, only to generate column inches and sound bites. If they can't get anything racy from the prosecution side, the pressures on them to generate an interesting story leave no real options other than to lap up whatever junk the defense may be willing to spew.

You are exactly right, Neel. The problem has been compounded in recent years by the rising popularity of the 24 hour "news" channels. The fact of the matter is that about 1 hour of the 24 is real news and the other 23 hours is commentary. But the distincition for the public between hard news and commentary has become blurry because they watch so much commentary disguised as news. So when average Joe turns over to CNN or Fox News and hears some so-called expert saying that Koby Bryant will obviously be acquitted, they file that away as fact. And the 24 hour channels usually gravitate to the defense leaning experts because actual real-life prosecutors are always more reserved in their comments about pending cases, so the sexy stuff comes from the defense talking heads. About the ethical rules ... I agree that it's very clear that these types of statements are prohibited by the rules but I would be curious to know whether anyone -- and I mean even once -- has ever been reprimanded or disbarred for making improper comments about a case in the media. Wanna bet on how many?

OK, so the media bias exists. What are we going to do about it?

There are at least two things that we can do. Support the NDAA's and TDCAA's efforts to educate the major media about this issue and provide them with names of appropriate commentators who are actually prosecutors. I would think letters and emails to the media pointing out the problem and urging them to seek more balanced commentators might have some impact. As for personally, I foster a strong relationship with the media. You would be amazed how much better you get treated in the press when you don't ignore their phone calls. Even when you don't want to talk about it. Always have a little something to give them that sounds different and unique ... in other words, give them a new angle. If you treat them like the enemy, they will respond in kind. Again, the days of not returning their phone calls and tersely saying "no comment" on the way out of the courtroom should be over. John, I know that you and many others understand this but you would be surprised at the number of prosecutors who still ignore the press and think it has no impact on their office.

Good thoughts and suggestions, Tim.

I would add this: Prosecutors should consider establishing their own agenda. We do not have to be reactive to events. We can decide what events are important and publicize them.

For example, I have noticed an increase in the number of cases being considered for parole. I also am concerned about the increase in paroles being granted.

So, I have chosen a worthy defendant and am making his case a media concern locally. He has been released on parole 3 times and is up for the fourth. Why?

Well, I researched the case and the parole decisions and wrote a press release, along with a parole protest. Then I did a couple of interviews with TV and radio.

So, instead of waiting for a jump in the crime rate, we can be out front with a warning to the public.

Of course there is LAW AND ORDER where justice always prevails. Would that we all be as perfect as they are.

Stephen Chapman, regular contributor to the Conservative Chronicle (which is, overall an excellent mag), assails prosecutors about once every six weeks. He is particularly exercised about child sex cases. Here is his bio: http://conservativechronicle.com/columnists/chapman.htm I have always wondered about the source of his animosity. Does anyone know anything more about him?

Addendum: Perhaps I have found the answer to my own question: http://www.celebatheists.com/entries/atheist_5.html

[This message was edited by BLeonard on 01-16-04 at .]

I agree wholeheartedly that a big part of the problem we have with media is that they generally find prosecutors uncooperative or unavailable. I know from having worked from all sides of the issue that a major issue is time-sensitivity in reporting, or "info-tainment". What all good reporters MUST have, is in effect, a "Bureau" of experts who are on-call, available with very little notice, who can and will provide thoughtful and yes, entertaining analysis on a given issue or case. The Association is a perfect vehicle to create that reservoir of experts who are themselves media-savvy and willing.

I realize that most Texas Prosecutors are loathe to comment on each others' cases, but there has to be a way to do it that is both ethical and constructive, and done with the cooperation of the relevant prosecutor's office. Perhaps since Shannon is already an established pop icon, and I'm sure enjoys a high level of trust from elected prosecutors, he might be willing to be a starting point? Shannon, if you are willing, I will gladly sign on to represent you for a paltry ten, oh, what the heck, make it six, per cent.

Neel, 10% of nuthin' is still nuthin'!

FYI, TDCAA frequently receives press inquiries on various issues, and we usually refer them to the appropriate prosecutor and/or other prosecutors and ex-prosecutors who have an expertise in the issue at hand -- so perhaps that happens more than you realize. But the vast majority of media inquiries we receive are merely to "balance out" a piece with the opposition from the prosecution ("insert token phrase from __________ here"). We rarely get open-ended inquiries from reporters trying to do objective pieces favorable to our members. But since when is convicting and punishing the guilty newsworthy? Controversy and conflict sell papers, not patting someone on the back for a job well done, right?

(And if you think I'm cynical now, talk to me about it over a few beers!)

Prosecutor can generate their own stories. We see all sorts of things that occur in a community that a reporter will never know about unless we tell them. If we carefully consider a story and provide good background, a reporter will often be grateful for the tip and include a prosecutor's point of view.

There is the sense among some prosecutors that this sort of story promotion is inappropriate. And, to the extent we are talking about promoting the guilt of a defendant before trial, I agree.

But there are many other issues that can result in positive, educational stories that promote the good work done by prosecutors.

Shannon and John are both right. If the spin of the story is going to be negative, the reporter is going to write the story first and then call the prosecutor for the final quote to make it appear that input was sought from both sides. However, I have found that the best way to head off this problem is to do what John suggests. Be proactive with the media. That's not to say, as John mentions, that you are going to make unethical statements just to give them a story. It does mean, however, that you may want to call them sometimes and give them a heads up on a story that might take them a day or two to pick up through the grapevine (which makes it old news by todays standards). Rather than play gotcha with the press where we just sit back and see if they can get the story, I find it is much better to foster that relationship with them. If they trust you and consider you to be reliable and fair, you may head off many of those "bad spin" stories before they are written. Maybe then they call you before the story is written and it either is written very differently or not at all. I can tell you that a number of times, I have had reporters who trust me enough to call ahead of time tell me the content of a story about, for example, someone who has a grudge against the office for whatever reason. Once the situation is explained the story goes away. This applies, of course, to local media more than national media but I have even been able to foster a relationship with some national media reps on occasion during one of those high profile times. I go back to my original assertion, treat them like the enemy and they will respond in kind but if they think you're an ok sort of person, it's a lot harder for them to hang you out there.

P.S. I guess it shows that I really enjoy talking about this topic. Good discussion.

Amen, Tim. You make many good suggestions. I think this would make a great topic at the next elected prosecutor course.