Dear Fellow Defense Counsel: You have the right to remain silent, so shut up!
How would you feel if you, standing accused of a crime (but presumed innocent), had a lawyer that, after speaking with you announced to the press in so many words that you are guilty and a lunatic? Does that seem like constitutionally effective assistance of counsel to you?
Much to my surprise when I read this story Lawyer Calls Client "Wacko" , this scenario is a true situation. Amy Bishop, a biology professor at the University of Alabama is accused of opening fire at the end of a biology department faculty meeting. The shooting allegedly caused the deaths of three faculty members in attendance and three others were wounded. The press was very sensitive on February 12, 2010, pointing out that Amy Bishop was detained for questioning, but not arrested. Professor in Custody After Shooting After charges were accepted, her lawyer, Roy Miller, lacked that same sensitivity and tact, stating that his client Amy Bishop is “wacko” and that she is “aware of what she’s done and she’s sorry for it.” Admittedly, I am unaware of Alabama law, but this sounds like he thinks she is guilty and there is no defense in sight for her. It sounds like, if he could confess for her, he would. With presumptively little investigation, this “defense lawyer” has already given up. Where is the justice in this? Is not every defendant, regardless of how heinous the allegations, entitled to a zealous defense?
As a defense attorney, I spend a great deal of time educating people, whether clients or not, of their right to remain silent so that they do not trap their defense counsel into a particular defense that they set up without the benefit of counsel, investigation, or knowledge of the law. It never occurred to me that lawyers needed to be told to remain silent until I read Scott Greenfield’s blog, Simple Justice: Maybe Lawyers Should Remain Silent Too. On February 19, 2010, Scott wrote about an attorney in a perplexing situation all because the attorney told the press that his client was innocent and did not do it. One thing I can appreciate about that lawyer, Richard Marmaro, is that he was at least attempting to protect his client at the time he made those statements. The same cannot be said of Roy Miller.
When asked by me in the comments section of his blog, if there is a safe response to give the press, Scott Greenfield gave the following sage advice:
While my preference is to deal with the media on a sui generis basis, there are always safe responses (i.e., "the defendant vigorously challenges the accusation against him and we expect to be fully vindicated by a jury"), not to mention the old safety valve, "it's really not appropriate to comment at this time."
But to announce a fact specific defense to the media carries enormous consequences. Yet many lawyers will call a press conference, tell the world about how the never did it, and later have to eat his words. It's all about finesse, since we can never be sure where the evidence will lead and what the best defense will ultimately turn out to be. How many times has a lawyer gone into trial thinking one defense when another, better defense comes to light because of a prosecution error or surprise witness testimony. The media isn't the place to try the case.