Unlevel Playing Field For High Profile Defendants In Pretrial Publicity Game

Prosecutors may have an advantage (perhaps an unfair one) in the public relations battle in high profile criminal cases. When a defendant of notoriety is charged with a crime, the release of an indictment and government press releases announcing the charges send the media into a frenzy, and despite our system’s often-touted “presumption of innocence,” the publicized announcement of criminal charges almost always results in the public having a negative view of the defendant and can have a devastating impact on a defendant’s life and business associations. That may even be the situation in prosecutors’ cases against Donald Trump and Samuel Bankman-Fried. Especially in the case of Trump, media headlines have captured notable individuals, including respected politicians and pundits, opining on his guilt. No one doubts that these reports, often fueled by prosecution media releases and press conferences, affect the public’s perception (and thereby witnesses’ and potential jurors’ perception) of high-profile criminal defendants. For example, days following the announcement of insider trading charges, Martha Stewart’s company’s market value dropped more than 50%.

So how can a high-profile defendant level the playing field? Historically some, including Ms. Stewart, have attempted to push back against the negative publicity their indictments and accompanying government press releases generated. Bankman-Fried has had over 1,000 calls with journalists, and Trump notoriously has posted to social media criticizing potential witnesses, prosecutors, and even the judges presiding over his cases. Prosecutors and the courts have responded. Judge Lewis Kaplan imposed an interim gag order preventing Bankman-Fried from making public comments on the case, and eventually revoked his bail for witness tampering, and Magistrate Judge Moxila A. Upadhyaya issued Trump a stern warning during his arraignment in the D.C. election interference case that “it is a crime to try to influence a juror, or to threaten or attempt to bribe a witness or any other person who may have information about your case, or to retaliate against anyone for providing information about your case to the prosecution, or to otherwise obstruct the administration of justice.” These recent cases involving controversial defendants may cause us to lose sight of the fact that under the due process clauses of the Fifth and Fourteenth Amendments and the Sixth Amendment’s fair trial provision, a criminal defendant has a constitutional right to a level playing field.