"No comment" sounds insidious, like you've got something to hide. The public perceives "no comment" in a negative way. It's better not to return the reporter's call than to say 'no comment,'" said Dan Abrams, MSNBC Anchor of "The Abrams Report" and NBC News Chief Legal Correspondent for "NBC Nightly News with Tom Brokaw," "Today" and "Dateline NBC."
He spoke this morning at the Marketing Partner Forum in Florida on "How Law Firms Should (and Should Not) Present Themselves and their Clients to the Media."
"There is no presumption of innocence -- it's a legal fiction. The police don't presume the defendant is innocent and the media doesn't presume innocence. Instead the media will say what evidence the police found, what they've charged him with and what the defense attorney says," Abrams said.
"It's a big mistake to ignore the media. If you do, you are a fool. You may choose to avoid the media, but it should be a concerted decision, not a decision to ignore the media," he said. "For example, defense attorney Alan Dershowitz only will talk to the media when it will help his case, and only when the prosecution has talked to the press," he said.
He gave examples of how lawyers prevailed and bungled in high profile cases.
He said the Scott Peterson case was an example of a disaster. Peterson, over the objection of his lawyer, spoke to the media and the videotapes were used against him in his trial. "He got caught lying about the relationship with the person he killed," Abrams said. "He also didn't have sympathetic stories to tell - Peterson was having an affair when his wife went missing - that's a tough position to defend. As a result it was far more detrimental than it was helpful to him."
In the Peterson case, Los Angeles attorney Mark Geragos overpromised and underdelivered, according to Abrams. When Peterson was arrested, Geragos said Peterson was factually innocent and that he was going to find out who actually killed Laci Peterson and her son. "He didn't do anything close to proving that Peterson was stone cold innocent; he relied on showing a reasonable doubt and the presumption of innocence," Abrams said. Peterson was convicted.
On the other hand, in the Michael Jackson case, lawyer Thomas Mesereau had everyone talking about the accuser's family, that the mother was a scam artist. "He was very effective about getting information out about his accusers. Jackson went into the trial with a presumption of innocence," Abrams said, and was acquitted.
In Bush v. Gore, which decided the 2000 presidential election, the Bush administration framed the issue publicly that "it's time for us to move ahead," Abrams said. The Democrats had to rely on the courts, saying we need to assure one man, on vote. "By the time the Supreme Court rendered decision, the public wanted it to be over, was general acceptance of the decision, even though the country was still divided. Republicans made the Democrats in rely on legal definitions and the courts,"
The Martha Stewart represents all the issues that come up, according to Abrams. Her livelihood depends on her public image," Abrams said. She initially went after the prosecutors and got indicted for the statements she made publicly, as an effort to boost her stock price," Abrams said.
"It's a lesson, when you go after the prosecutors; you have to consider the ramifications. For example Texas lawyer Dick DeGuerin has gone on TV asserting that the DA Ronald Earle is going after politician Tom DeLay for political reasons and is minimizing criminal case. There are risks of going after the prosecutors.
"The worst thing Martha Stewart did was saying she didn't lie; when you heard the evidence it was a no brainer that she lied." A better issue was that the government wouldn't have gone after her if she weren't Martha Stewart. It's not an argument you make in court, but can make outside court. Her legal team should have had statistics ready, that when person worth is more than $500,000 have been only x number of prosecutions. But instead they decided to use the bunker mentality: we need to avoid speaking about this case," Abrams said.
"It's always a mistake in high profile cases to ignore the media," Abrams said, but don't go overboard. "Don't 'do a Bill Ginsburg,''' Abrams said. Ginsburg was the first attorney for Monica Lewinsky. He went on 5 TV talk shows in one weekend - he became a joke, his appearances became the story."
Abrams said that one of best examples a lawyer helping a client in terms of public perception is what libel lawyer Lin Wood of Atlanta did for parents of John Benet Ramsey. "For years was a cloud of suspicion over the parents. The parents became public figures and were perceived as parents who probably killed their daughter. When attorney Wood took over the case, a lawyer who's filed cases against the press. He decided to rehabilitate their image, to go public and arranged private meetings with parents. "They weren't' concerned what was said about them. Took position that they were innocent and had nothing to hide."
Importantly, Wood started holding reporters accountable for what they're saying about the Ramseys - "calling reporters and screaming at them, threatening to sue them - when they thought the Ramseys being treated unfairly." Reporters were successful intimidated and now the iinvestigation is focusing away from the Ramseys.
The rules are different for politicians. Perception is everything. Lawyer Theodore V. Wells, Jr. of New York, who is representing Scooter Libby, made two mistakes, according to Abrams:
--- A broken promise - he said wouldn't speak to the press. But he did when there was favorable information released about the case from Bob Woodward.
--- He made a public statement without vouching for his statement. "We're not going to try this case in the press. Mr Libby has declared that he wants to clear his good name and wants a fair trial," Abrams said, quoting Wells. "I liked the language because it was tough, but it wasn't vouching for the client, it was saying what client was saying."
Libby was indicted for lying to the grand jury in the Valerie Plaine CIA outing case.