CBA Record April-May 2019


every stage of a case, often when a defense attorney responds, gag orders are imposed. Timing is everything. To stay out of the cross hairs of a judge’s wrath, make more explanatory comments throughout the pendency of a case. Couch comments in preambles that include “as I explained in court . . . my client is innocent because his statement was a product of police coer- cion.” Restating comments to the press that were first made in open court is not solid ground on which to impose a gag order. While the case is pending, make state- ments to reporters “on the record” which can be printed but also “off the record” to explain certain aspects of the case. Report- ers are not lawyers. They often have ques- tions regarding the complexity of certain motions that are litigated. Making yourself available for off the record conversations to explain arguments and rulings can ensure facts are fairly reported. Reporters aren’t going to understand the ins and outs of Crawford v. Washington, but they will understand that evidence should only be uttered from a person the defense gets to later confront. Let reporters know you’re willing to talk off the record. Court filings are public. When you file a detailed motion attaching affidavits and videos for the judge, the press can obtain it. Restate your media message throughout fil- ings and encourage reporters to copy them. The only exception to this is Pre-Trial Motions in Limine regarding evidence you believe the judge may rule inadmissible. The last thing you want to do is argue and win a motion as to why your client’s six prior felonies are not admissible, only to have them detailed in the newspaper the next day. Request Motions in Limine be held in camera. Communicate a final message to poten- tial jurors on the eve of trial. News orga- nizations will be running previews of the case to refresh it in the minds of viewers. The week before his trial, former Chicago Police Officer Jason Van Dyke gave an interview to media outlets detailing the highlights of his career as a police officer. This eve of trial message is the same media message but more detailed. Repetition is key. A good example: “My client, a hard

murder weapon?” can be met with, “This is a horrible tragedy, but after a thorough investigation, you will see my client, a young kid going to school and working part time to help support his mother, is innocent.” Reporters are looking for a comment, not to cross examine. In the beginning, because a defense has not yet been developed, only complete denial is necessary. Once you have read the discovery, a defense will emerge. There are legal defenses and press defenses. For example, in one press case with a confession, my client’s repeated requests for an attorney were ignored until he confessed. While I argued constitutional violations in the courtroom, in the press, I made comments about coercion, the excessive length of the interrogation, the lies utilized by the police, and the professional interrogation methods employed to obtain a false confession. Boil your message down to one or two points and keep circling back to them. Politicians are masters at not answering a question. Ask a politician about recent rumors of infidelity and you’ll get a quick denial wrapped in an earnest discussion on the state of health care in this country. The same goes for your message. No matter the question, circle back to the scripted defense message because that is what you want people to hear and remember. Your message should embrace bad facts. If your client gave an incriminatory state- ment, your message should include why it should not be believed. If there is physical evidence incriminating your client, include an alternative explanation for its existence. If your client committed the crime but has serious mental health issues, then, with permission, those should be explained. For example, a client committed a bizarre crime that was captured on video. After obtaining the client’s consent, my media message described his life-long battle with schizophrenia that only reemerged after losing his job, health insurance, and, as a result, mental health treatment. How do you time this message? Every chance you get? That would be nice, but unlike prosecutors who make frequent comments to constituents and the press at


CBAmembers are invited to attend theYLS Annu- alMeeting on June 5, 2019, 11:30 a.m., atWildfire Chicago, 159W. Erie, Chicago, IL. 2018-2019 Chair BrandonPeck of Peck Ritchey LLPwill preside over the meeting and celebrate the Section’s many accomplishments and outstanding committees, seminars and special projects. Incoming Chair Octavio Duran of Hart David Carson LLP will be introduced. A reception will take place at 11:30 a.m., followed by the luncheon at 12:00 p.m. Tickets are $55 per person. Call 312/554-2056.

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