Chris Fogarty witnesses the defence and prosecution unite in the case against trial by media in the US justice system.
For us attorneys the history of the world can be divided into two distinct eras: pre-OJ and post-OJ. The Simpson trial has radically altered the legal landscape.
No longer is it enough to win over the jury. Today's attorneys must seduce the media and the public, with the best tactics, the cleverest strategy and the sharpest quips. Justice is increasingly being played out on the court steps. This issue took centre stage at the ABA conference, where there was widespread agreement that things have gone too far.
Stephen Jones, who defended Timothy McVeigh, the man accused of planting the Oklahoma bomb, sneered at his client's treatment. “There was a trial in the court of public opinion that ran two and a half years non-stop. The media and victims shaped the agenda.”
Jones accused the government of leaking information to the media, of falsely accusing his client of belonging to a right-wing militia group, of shooting Iraqi prisoners in the Gulf War and of having a book outlining other buildings he planned to bomb.
Jones will be filing his appeal against McVeigh's conviction and death penalty largely on the grounds that media coverage prejudiced his chance of a fair trial. And even Merrick Garland, who assembled the prosecution team for the Oklahoma trial, was damning in his verdict on modern US justice. He pointed out that 800 news stories focused exclusively the tactics and strategy of both the defence and prosecution teams.
He added that US television networks now had their own legal commentators: lawyers who often simply read press reports on the case and then praised or attacked their colleagues' tactics on air.
At the conference the new ABA president Jerome Shestack highlighted the part lawyers themselves have played in turning trials into media circuses, saying: “A lawyer who is involved in getting a prosecution or defence ready should reserve his comments for the courtroom.”
Shestack believes courtstep justice is tarnishing the public image of US lawyers, and he is setting up a special ethics committee assigned with the task of encouraging better standards.
But it may already be too late. Of course there always have been legal stars and colourful legal personalities who have manipulated public opinion. But in post-OJ America, cases are increasingly seen as a battle of wills and tactics between attorneys, rather than as a hearing to present the facts of a case and establish guilt or innocence.