By: Brandon Gee January 1, 2015
The federal death penalty trial of accused Boston Marathon bomber Dzhokhar Tsarnaev and the state murder trial of former New England Patriots tight-end Aaron Hernandez are sure to grab their share of daily headlines once they commence on Jan. 5 and 9, respectively.
The media's search for competent and compelling commentators to analyze such cases frequently leads to criminal defense lawyers. Those who have jumped at the chance, despite already demanding schedules, see the gigs as potential marketing opportunities. Or they do it out of a sense of obligation or simply because it's fun. But rarely, if ever, is it about the money - even though some attorneys who make regular appearances do receive a small amount of compensation for the work.
"There's no doubt I enjoy the challenge of analyzing trials and the strategies of lawyers and explaining to the public what is going on in a particular case," says Chelsea lawyer Randy S. Chapman, who serves as legal editor for New England Cable News. "I've been practicing law for 29 years, and part of being a trial lawyer is distilling complex legal issues into simple arguments a juror is going to understand. Jurors are very similar to a local television audience."
Boston's Thomas M. Hoopes, legal commentator for WHDH-TV 7News, agrees that the work provides "a different way to use your skills."
"It's the same set of skills that you use in the courtroom and with a jury or a judge, just directed toward an audience," he says. "Anybody who does trial work likes to be on stage, and it's just another opportunity to be on stage."
Chapman and Hoopes (who sit on Lawyers Weekly's Board of Editors) got their start in TV 20 years ago during the O.J. Simpson trial. While nobody is expecting that level of frenzy to accompany the Tsarnaev or Hernandez proceedings - or, perhaps, any other trial ever - there's no denying that Massachusetts is at the heart of a particularly intense stretch of courtroom drama.
"I don't think there's any other state that has had the level of fascinating, high-profile criminal cases that Massachusetts has had beginning with the Whitey Bulger trial," says Boston's R. Brad Bailey, a legal commentator for FOX25 News.
Within months of Bulger, Boston's most notorious mobster, receiving two life sentences for racketeering and murder convictions, opening arguments began in the federal trial of three former Probation Department officials accused of running a rigged patronage hiring scheme. As appeals of their convictions are pending before the 1st U.S. Circuit Court of Appeals, trials for Tsarnaev and Hernandez are slated to begin.
Meanwhile, a retrial of the penalty phase for convicted murderer Gary Lee Sampson will be held later this year. Sampson's 2003 death sentence is being challenged in U.S. District Court.
The cases provide plenty of TV fodder, but they also present challenges for legal commentators who make their living working "day jobs."
Chapman says his clients are his priority but that he fits in work for NECN when, and where, he can.
"Going to the studio takes a lot of time. Other times they'll work around my schedule and come to my home or office. One time I even stepped out of dinner and did a spot on the sidewalk real quick," he says of the Newton station's willingness to send a crew to his home on the North Shore.
More fraught than logistical issues, lawyers say, are ethical ones - such as their duty to be competent and fair and to avoid conflicts of interest.
"We're all aware of and very sensitive to any potential conflict of interest," Bailey says. "I will not talk about any case that I am the attorney on, and if I am doing a high-profile case myself and am doing press availability, I will go out of the way to make sure I'm not giving the station I work with an exclusive."
The National Association of Criminal Defense Lawyers recommends that legal commentators "devise strategies to avoid the disclosure of privileged material" and be prepared to field awkward requests to critique the performances of other attorneys, without the benefit of being privy to the same materials, communications and information that guided those lawyers' decisions.
Hoopes says he tries to answer such questions without commenting on whether a counterpart is a good lawyer or whether he or she made a good or poor decision.
"As long as you're talking about the chessboard, you're fine," he says. "When you start rendering your opinion about the lawyers, the case and the judge - I just won't go there. ... As far as I'm concerned, the only person who knows what moves are appropriate inside the case is one of the lawyers or the judge."
Chapman says he's willing to call out a lawyer for a bad tactical decision because "that's just part of being candid and honest," but he avoids sarcasm or getting personal. And he's more likely than not to take the Fifth when asked to predict the future.
"You need to obviously be very careful in speculating on what a judge is going to do," Chapman says. "You have to be willing to say, 'I'm just not sure of that. I don't think anyone could reasonably predict it.' Don't answer the question just because they ask it."
Though some legal analysts are adversarial and even take sides, Chapman says he tries to be "mindful of the fact that some things I say may impact the ability of the commonwealth or defendant to get a fair trial."
To the extent information about a case is available, however, commentators have a duty to know the legal and factual issues of a case, or else should decline to comment and direct the news media to other sources, according to the National Association of Criminal Defense Lawyers.
And in fact, not doing one's homework can lead to embarrassing on-air moments, something Bailey found out the hard way. He recalls the time he was unprepared for a question on live TV. He later received a polite but firm rebuke from the producers that, 'We're not having you on to tell our viewers that you don't know what happened.'"
"One of the lessons I've learned is you have to be almost as prepared to go on TV as you do to go to court on behalf of your own client," he says. "There have been a couple of times I've been flat-out tied up in court all day and just figured I knew the case and material enough to answer questions. But every day there are such nuanced arguments and issues that you have to be careful about not being blindsided."
The bottom line
Lawyers are split on whether the role of TV pundit is good for business, or even whether such engagements should be viewed as marketing opportunities at all.
Chapman, who references his NECN job on his website, says the TV work doesn't directly lead to business, but it does help with marketing, referrals and his goal "to be the criminal defense lawyer every non-criminal defense lawyer thinks about when they get a criminal case."
"People don't pick criminal defense lawyers like they do personal injury lawyers," he says. "They usually do it through word of mouth. It helps with the marketing side of things, but I don't think anyone is going to hire me because they see me discussing the Hernandez case."
Hoopes thinks just as many potential clients who are impressed to see him on TV will be turned off. He also believes that viewing his television appearances as a business opportunity would inappropriately distort his comments.
For Bailey, too, the work cuts both ways from a business perspective.
"I am constantly being stopped by people who say, 'I saw you on television,'" he says. "But there are times it can act as a disincentive. People sense, if you are on TV, you must be too expensive for them."
There are other reasons to be a commentator, according to Bailey. Constantly having to think on his feet makes him a "sharper and better lawyer," he says.
Though he's not as "full time" as the others, Boston lawyer Martin G. Weinberg says he makes himself available for media interviews out of a sense of obligation.
"The public has a right and lawyers have a duty to explain the criminal justice system and its cornerstone principles, so that the community has a sense of what's at stake in these enormously important cases," he says. "It really is something I do and have done for 40 years out of a sense of trying to do my part to make sure the media properly represents the rights of the accused and the profoundly important and difficult role of the criminal defense lawyer."
Weinberg said it's a responsibility that outweighs the challenge of trying to reduce complex matters to short, TV-friendly comments while maintaining the integrity of the thought and avoiding distortion.
It's especially important for defense lawyers to speak up since the public often is predisposed against defendants, he says.
"If we don't do it - [as] people whose profession is being an advocate for the accused - then the field will be left to prosecutors or ex-prosecutors or law professors who don't have the experience of trial lawyers," he says.
[Originally published by Massachusetts Lawyers Weekly: http://masslawyersweekly.com/2015/01/01/with-big-trials-stacking-up-legal-pundits-are-ready-for-the-action/]