Legal News

He?s Innocent! Or Not. When Defense Lawyers Talk to the Press

By Dan Slater

Here’s one for the criminal defense bar, and nearly anyone who’s ever watched a lawyer defend his client on the TV-talk circuit: Is it kosher to be insisting on your client’s innocence, if they go on to plead guilty?

The question arises in the context, of course, of the Mess in Mississippi, and what Dickie Scruggs’s lawyer, John Keker (pictured), said to the press about his client, who’s now pleaded guilty to conspiring to bribe a judge.

In a November story the WSJ reported that Judge Henry Lackey, the Mississippi judge that Dickie Scruggs and his associates allegedly attempted to bribe, had been instrumental in helping the government put together the case against Scruggs. The story quoted John Keker, Scruggs’s lawyer: “I find it remarkable that this high-minded government witness” — Judge Lackey — “is talking to the national media, and it makes me wonder if he is interested in notoriety rather than seeing that justice is done. I’ll say this — he sure as hell didn’t get bribed by Dick Scruggs or anyone else in his law firm.” Two and a half months later, on Friday, March 14, the WSJ ran a front-pager entitled “A Lawyer’s Trial: Tort King’s Path to Bribery Charges,” which looked at Scruggs’s contentious history of fighting with other lawers over fees. In the part of the story that discussed the bribery charges against Scruggs, Keker told the Journal that prosecutors had concocted a “manufactured crime” in which his client had no part.

The same day that story ran, Scruggs pleaded guilty to one count of conspiring to bribe a judge. In court, Scruggs said he didn’t set out originally to bribe the judge but agreed to take part in the plan once it had been presented to him. Originally, “it was an intent to earwig the judge,” he said, according to a transcript of the plea.

He faces up to five years in prison.

On Saturday, the WSJ ran a letter from a reader, a lawyer in Minneapolis, criticizing Keker’s statements to the press and questioning how criminal defense lawyers respond to media inquiries about their clients:

All Mr. Keker should have said was that his client had pleaded not guilty and that the matter would proceed to trial.

One assumed that when Mr. Keker made factual assertions he was accurately reporting what Mr. Scruggs had told him, since he presumably knew Mr. Scruggs’s side of the story through lengthy interviews under the protection of the attorney-client privilege.

Then we learned, a few hours later, that Mr. Scruggs was guilty all along. Either Mr. Keker knew this or he was ignorant.

Why lawyers in criminal-defense cases feel compelled to make factual assertions about their clients’ innocence, facts which they couldn’t possibly know, is beyond me.

An interesting comparison is what Mel Weiss’s lawyer, Benjamin Brafman, said to the press during the time his client was under indictment. Weiss agreed to plead guilty in a kickback scheme last week. Mr. Weiss “will be fully exonerated,” Brafman said when Weiss was indicted. Just before he was indicted, he said: “If indicted, however, Mr. Weiss intends to vigorously fight the charges and will bring to that fight all of the talent and resources that have made him one of the most extraordinary lawyers of this generation.”

Monroe Freedman, a law professor at Hofstra and legal-ethics expert, says that generally speaking, he doesn’t see problems with a lawyer making aggressive statements to the press in defense of his client. “We don’t know what the client told the lawyer when the lawyer made the statements,” he says. “We don’t know what Scruggs told his lawyer. We don’t know if Scruggs said I did it, but I want to fight it or something else entirely.”

LB’ers: What’s your take on Keker’s statements to the media pre-plea? We also have a call into Keker and will let you know what we hear back.

Full post as published by Law Blog - WSJ.com on March 24, 2008 (boomark / email).