Stage-Managing a Celebrity Defense

We are about to witness an unprecedented conjunction of trials in which celebrities are the defendants. So far, the cases have offered the public an unusual glimpse into the frequently tempestuous and near-unmanageable relationships that criminal-defense lawyers have with high-profile clients. Predictably, the central problem has been publicity, the unwanted kind. Here’s how the defense lawyers have tried to manage it.

* Defense lawyer Mark Geragos has to decide whether he wants to be ringmaster of the Michael Jackson circus or gain some control over his client. Based on Jackson’s antics before, during and after his arraignment in Santa Maria earlier this month, some defense attorneys think Geragos’ client is on a “lemming run.” In criminal-law parlance, such a run occurs when a defendant not only dictates his own defense over the advice and private objections of his lawyer, but also chooses a course of conduct that will ensure conviction and tempt a maximum sentence.

To avoid hurling himself off the legal cliff, lemming-style, Jackson must understand that the jurors at his trial will not be flicking their concert lighters in his support, and he will share the spotlight with the 14-year-old boy who has accused him of molestation.

Jackson may also face testimony from a witness who alleged he was molested by Jackson in 1993 but settled out of court. According to a section of the evidence code, the prosecutor may offer as evidence that previous alleged sexual assault. It will be difficult for Geragos and his ever-expanding legal team to keep that testimony from being heard by the jury because the prosecution will probably contend that Jackson’s alleged “preparation” and “plan” in the current case are the equivalent of a “criminal signature.” To establish that M.O., you need the testimony of the former accuser.

The defense concedes that Jackson sometimes invites boys to spend the night in his room at his Neverland Ranch, with the permission of their parents. Because of his notoriety and the construction of a multimillion-dollar amusement park at the ranch, Jackson’s alleged modus operandi must be considered unprecedented in the annals of criminal law. Usually the alleged child molester goes to the playground rather than building one of his own.

Turning a child-molestation trial into a publicity stunt could be dangerous for Jackson, and Geragos should, if possible, stop his client before the next roof he dances on is owned by the Department of Corrections.

* Geragos’ other high-profile client, Scott Peterson, who is accused of killing his wife, Laci, also presents a formidable challenge to Geragos’ legal skills. Problem is, Peterson talked to the media entirely too much before he hooked up with Geragos. Stanislaus County Judge Al Girolami has ordered his murder trial moved from Modesto to Redwood City in pursuit of fairness, but Easter Island, Nova Scotia or Tierra del Fuego would have been better choices.

Whether Peterson can receive a fair trial anywhere in the United States is problematic largely because countless TV news reports have portrayed his murdered wife as a victim more innocent than Snow White and Scott more evil than Snidely Whiplash. Here, technology has outstripped the judicial system’s ability to find a jury that is neither knowledgeable about the case nor prebiased against the defendant. Contrary to Geragos’ objection, the judge’s gag order may actually help his client by denying the media monster its daily sound bites.

In such circumstances, a change of venue only slightly helps the defendant. Trials are no longer local if they provide enough salacious material to tease a national audience. Even after finding the least-prejudiced jury, the trial judge’s only realistic remedy to protect Peterson’s trial from TV news hysterics (not to mention the more dangerous Jay Leno, David Letterman and “Daily Show” host, Jon Stewart) is to sequester the jury.

But since the O.J. Simpson double-murder trial, judges have been loath to steer that course. The sequestered Simpson jury didn’t see the late-night monologues, the Dancing Itos, “Saturday Night Live” lampoons or Dennis Miller’s rants. People have strong opinions on Simpson’s guilt, but most forget that they were subjected to four months of continuous anti-Simpson sentiment in the guise of comedy and pseudo news and that, more than conventional news coverage, largely formed their views.

In much of the public mind, the Scott Peterson trial already is over. He went fishing on San Francisco Bay on Christmas Eve. Laci and her fetus were later found dead in the Bay. Next case.

* Robert Blake, the former TV actor, used to tell Johnny Carson that he hated “the suits.” His first lawyer, Harland Braun, is one of the best in criminal defense. Yet Blake ignored his advice and set up a TV interview with Barbara Walters. Braun quit the case after Blake continued to pursue interviews and was, from the lawyer’s perspective, out of control. Blake then hired Thomas A. Mesereau Jr., another top criminal lawyer. Mesereau also wanted Blake to shut up but has chosen to work with him despite the actor’s penchant for self-destructive pretrial chitchat. At a minimum, bits from Blake’s interview with Walters and a second interview on CBS’ “48 Hours” will be replayed during his murder trial, and they won’t be the bits that Blake wanted them to broadcast.

* Then there is record producer Phil Spector, famous for his “wall of sound,” who is charged with murdering actress Lana Clarkson in his Alhambra mansion. Spector’s lawyer, Robert Shapiro, is certainly no shrinking violet when it comes to media attention. Yet, Shapiro’s last public pronouncement on the case was on Dec. 10, after which neither Spector nor Shapiro has been heard from -- and that is great lawyering. The lawyer’s sole comment: Spector is not guilty, and the coroner’s report shows gunshot residue on Clarkson’s hands, possibly suggesting suicide. As a result, Shapiro’s client does not lead “E! News Live,” “Extra,” “Entertainment Tonight” or other entertainment-news shows. In fact, he’s barely visible.

The difference between Shapiro and the other defense lawyers is that he has been to the circus before. Not Winona Ryder’s. Not Susan McDougal’s. Shapiro was in the “Trial of the Century,” and no one who played a role in Simpson’s trial has forgotten its lessons and the dangers of publicity.

* Impressive as Shapiro has been in keeping bad publicity at bay, it pales in comparison with the performance of Kobe Bryant’s defense lawyer in his rape case. Without uttering a single televised word outside the courtroom, Pamela Mackey has raised questions about the morals of Bryant’s accuser by challenging the state’s scientific evidence, not her sexual history, which is forbidden under Colorado law. She has cast doubts on the accuser’s mental stability after the prosecution inadvertently turned over the complaining witness’ mental health records to the defense. And she has wondered out loud whether a black man charged with raping a white woman can get a fair trial in all-white Eagle County after sheriff’s deputies and prosecution employees reportedly ordered some T-shirts depicting Bryant being hanged. In each instance, Mackey has skillfully used publicity to make her point to one audience: the prospective jury pool.

Whether by client or counsel, “spin” for its own sake doesn’t serve the defendant and puts the defense lawyer in peril. It should be used only for strategic or tactical advantage in influencing the prospective jury pool. Unless the defense has an information nugget that truly sabotages the state’s case, it’s prudent to say relatively little as infrequently as possible.