Litigation Publicity: Courtroom Drama or Headline News?

Article excerpt

When the parents of one of the students killed in the April 20, 1999 shooting in Littleton, Colorado filed a $250 million lawsuit on May 27, 1999[1] against the parents of the two gunmen, once again courtroom drama shaped media headlines and vice versa. Similarly, the matters involving Aaron Burr, Bruno Hauptmann, Sam Sheppard, and Shirley Egan are other key examples of cases representing reciprocal influences of courtroom drama and headline news.

This article examines the long history of interaction between the public, news media, and the U.S. legal system, highlighting various ways in which their contrasting interests and perspectives have influenced each other and suggesting particular strategies that attorneys might employ to protect and advance their clients' interests through informed and effective use of media coverage.

THE MEDIA AND UNITED STATES LEGAL SYSTEM: 1800-2000

By way of significant historical background, the links between law, the media, and the public date back as early as the 1800s. The 1807 treason trial of Aaron Burr was the first major case to confront the matter of media influence in a legal proceeding, more recently termed litigation public relations.(2) The case became a public feud between Burr, the past Vice President of the United States, and President Thomas Jefferson.

Contemporary newspapers reported on the arguments asserted by both the plaintiff and the defense in accordance with the First Amendment right of freedom of the press. As a result, Burr's counsel contended that because of the media coverage it would be extremely difficult to locate citizens to serve as jurors who were not familiar with the parties, thus jeopardizing the defendant's Sixth Amendment right to a fair trial.

The indictment charging Aaron Burr with treason contained two counts: levying war against the United States at the mouth of the Cumberland river in Kentucky, and beginning and providing the means for a military expedition against a nation with which the United States was at peace.(3) To these charges, Burr pleaded not guilty and the jury subsequently found in his favor. The case provides an interesting framework of the interrelationship of the media and the law.

The Burr case provides one of the first documented examples in U.S. history where the court of jurisdiction and the court of public opinion forged a relationship. Michael Sopronyi Jr. of the Harrisburg Patriot recently has observed that the publicity surrounding the Burr case fueled public opinion about Burr's guilt.(4) In fact, research suggests that the newspapers covering the Burr case took sides and included editorial commentary to support their positions before the trial began. Both Federalist newspapers, the Virginia Gazette and The Daily Advertiser, supported the defense and advocated ardently for the accused, while the National Intelligencer in Washington, D.C. supported the state and tried to use its influence to establish Burr's guilt.(5) It seems no coincidence that the publishers of the National Intelligencer were good friends with President Jefferson, who believed Burr was guilty "beyond question."(6)

Burr himself went so far as to blame the media for contributing to his struggle. In replying to the accusation that he had tried to raise an army against the United States, Burr said that the government "proclaimed that there was a civil war. And yet for six months they have been hunting for it, and still can not find one spot where it existed. There was, to be sure, a most terrible war in the newspapers; but nowhere else."(7)

Burr also experienced hostile media coverage in his fatal duel with Alexander Hamilton. The Commercial Advertiser attributed Hamilton's death to Burr's "cold-blooded, deliberate malice." At the same time, no newspaper mentioned that Burr, out of regret for shooting Hamilton, had attempted to go to his fallen antagonist.(8) During the days immediately following Hamilton's death, editorials, articles, and letters compared Hamilton to many other fallen heroes, such as Alexander the Great. …