Prosecutors and Fighting Back

Prosecutors and government regulators always seem to have an edge in the public arena... and, increasingly, they know how to use it. Consider this quote from famed trial lawyer Ted Wells of Paul Weiss Rifkind Wharton & Garrison, from an interview he gave for the new edition of my book In The Court of Public Opinion:

"Twenty-five years ago, an indictment was a legal document. You read an indictment these days -- that's the prosecutor's press release right there," Wells said. "It has a huge negative impact on a defendant's ability to get a fair trial."

And while government lawyers like to press their case publicly as hard as possible, they tend not to like defendants trying to do the same (as another well-known lawyer once told me: "Prosecutors don't like to see their cases in the press... unless they leaked it."). Worse, conventional wisdom is that if you put up too much of a public fight against the government, you'll pay -- even if prosecutors or regulators are out there in the media every day proclaiming your guilt. Among other tactics, they'll try to use a vigorous public defense as evidence of lack of contrition when it comes time for sentencing.

So in recent years, a common defense strategy for criminal defense lawyers has been to let the prosecutors have their day in the court of public opinion, keep their clients' mouths shut, then quietly work to see what kind of deal you can cut.

But there is increasing evidence that, if you are indeed wrongfully accused, there may be value in fighting it out publicly, matching the government's PR machine blow-by-blow.

Consider the case of prominent Miami lawyer Ben Kuehne. He had been charged by the U.S. Department of Justice with money laundering for advising another prominent defense lawyer, Roy Black, that it was o.k. to receive $5.4 million in legal fees to defend an accused Columbia drug lord, after Kuehne concluded that the money used to pay the legal fees was not, itself, tainted.

Rather than roll over, Kuehne fought back, both in court and in the court of public opinion. And
just last week, the U.S. Department of Justice dropped all charges against Kuehne (see the Miami Herald story, here).

One of the ways Kuehne won his case was to stage a very public defense against the charges, as detailed in the Herald:

His case came to symbolize the legal struggle between a defendant's right to a lawyer and the U.S. government's power to limit it. Hundreds of lawyers -- including a former chief justice of the Florida Supreme Court -- rallied behind him, donating hundreds of thousands of dollars to his legal defense.

"You have to give them a lot of credit for seeing a mistake like this and having the courage to correct it," said Kendall Coffey, a longtime colleague of Kuehne's, who served as the U.S. attorney in Miami during the 1990s.

So perhaps fighting back publicly is should be part of the defense attorney's arsenal in beating back such charges... if you are in fact innocent, that is.

For further examples of this, consider my prior posts on Mark Cuban (here and here), who successfully beat back SEC charges of insider trading by being very public about his defense. Or former AIG CEO Hank Greenberg's epic -- and very public -- battles with the SEC and the New York State Attorney General's office (another excellent WSJ Law Blog post is here). Food for thought when considering the public elements of your legal defense strategy..

PS -- As a final example of the government's skilled knowledge of the court of public opinion, consider the timing of the U.S. DOJ's dropping the Kuehne case -- the dismissal was signed by a U.S. District Court judge when prosecutors knew few would be watching: 3:30 p.m. on the day before Thanksgiving.