Sensationalism Falling Through the Cracks: Why the Legal Profession Must Broaden Ethical Standards for Legal Commentators

INTRODUCTION Whether it was O.J. Simpson, Casey Anthony, or Scott Peterson, history has shown that Americans love an exciting criminal trial. As a result, in the United States, the coverage and analysis of high-publicity criminal cases is ever-growing, creating many opportunities for attorneys to work in media as legal commentators. The term “legal commentator” has no precise definition, but generally entails attorneys making statements in the media that contain legal analysis. When attorneys speak in the media they simultaneously act in two roles: as a licensed attorney who has professional responsibilities and as a journalist who must meet viewership requirements. These two different roles can have countervailing interests and values. The legal profession may demand that an attorney’s speech educate the public and promote respect for the judicial system, while the media may demand easily digestible soundbites that boost ratings. In this media context, the legal profession must consider how to best ensure that attorneys provide ethical legal commentary regarding the criminal justice system. To better demonstrate how a legal commentator can face the temptation to provide style over substance at the expense of the legal system, consider the example of Wendy Murphy. Murphy, a former prosecutor and adjunct professor at New England School of Law, became a prolific presence on television talk shows during the prosecution of multiple Duke University lacrosse players for an alleged rape. Throughout the case, Murphy provided outrageous commentary that was strongly slanted toward the prosecution. For example, over the course of several different guest appearances, Murphy referred to the defendants as rapists; speculated, without evidence, that one or more of the defendants had been molested as a child; and dismissed evidence that the defendants had good disciplinary records at school by responding that “Hitler never beat his wife either . . . So what?” Furthermore, Murphy even questioned the presumption of innocence (one of the most important tenets of U.S. criminal law) by stating, “I’m really tired of people suggesting that you’re somehow un-American if you don’t respect the presumption of innocence because you know what that sounds like to a victim? Presumption you’re a liar.” By providing headline-worthy but legally-deficient commentary, Murphy’s behavior epitomizes why the legal profession needs to confront the ethical issues that attorneys face when speaking in the media. The American Bar Association (“ABA”) addressed the issue of legal commentary ethics in 2013 when it adopted its first-ever criminal justice ethical standards for legal commentators (the “2013 Standards”). The 2013 Standards provide ethical guidance to legal commentators by explaining how a commentator can become competent to provide commentary on a given case, what conflicts a commentator should disclose, and what types of comments a commentator should avoid making. However, the 2013 Standards do not go far enough and could benefit from certain clarifications. First, the 2013 Standards do not define “legal commentator,” leaving room for interpretation as to what types of attorneys qualify as commentators. Second, the 2013 Standards limit what statements qualify as commentary, excluding certain types of statements that could nevertheless cause harm to individuals, the public, and the legal system generally. Third, the 2013 Standards do not encourage commentators to avoid inflicting unnecessary reputational harm on individuals involved in criminal litigation (such as defendants or subjects of investigation), despite the great damage that such commentary can cause. Voluntary standards should broadly construe who qualifies as a legal commentator and what qualifies as legal commentary, and such standards should address the dangers of unnecessary reputational harm caused by legal commentary. Part I of this Note will explore the media’s impact on the criminal justice system, explain what makes legal commentators different from other journalists, and discuss the history of regulation of legal commentators. Part II will discuss how voluntary codes have, and have not, addressed who qualifies as legal commentators, what qualifies as legal commentary, and what should be done about the risks of causing unnecessary reputational harm. Part III will explain why expanding the reach of voluntary standards is important. It will propose that the ABA apply its new ethical standards for legal commentators more broadly by adding an inclusive definition of legal commentator and applying the standards to all legal analysis provided by a commentator. Part III will also suggest that voluntary standards should encourage commentators to avoid causing reputational harm when their commentary has no countervailing educational purpose, and that the ABA add such language to its standards. Part IV concludes

BAZZANA, André, & HUBERT, Étienne, dirs., Castrum 6. Maisons et espaces domestiques dans fe Monde Médiíerranéen au Moyen Áge.

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TORREMOCHA SILVA, Antonio, & DELGADO PEDRAZA, Pedro, coords., I Congreso Internacional Fortificaciones en al-Andalus.

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IBN HAYYAN, Crónica de los emires Alhakam 1 y 'Abdarrabman II entre los años 796 y 847 [Al-Muqtabis II-1].

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Ensayo de estudio histórico - arqueológico del conjunto fortificado islámico de Calatayud (Zaragoza): objetivos, metodología y primeros resultados.

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CORRIENTE, Federico, Diccionario de arabismos y voces afines en iberorromance.

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MARTÍNEZ ENAMORADO, Virgilio, Epigrafía y poder. Inscripciones árabes de la Madrasa Yadida de Ceuta.

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The Distribution of X-ray Dips with Orbital Phase in Cygnus X-1

We present results of a comprehensive study of the distribution of absorption dips with orbital phase in Cygnus X-1. Firstly, the distribution was obtained using archival data from all major X-ray observatories and corrected for the selection effect that phase zero (superior conjunction of the black hole) has been preferentially observed. Dip occurrence was seen to vary strongly with orbital phase \phi, with a peak at \phi ~ 0.95, i.e. was not symmetric about phase zero. Secondly, the RXTE ASM has provided continuous coverage of the Low State of Cygnus X-1 since Sept. 1996, and we have selected dip data based on increases in hardness ratio. The distribution, with much increased numbers of dip events, confirms that the peak is at \phi ~ 0.95, and we report the discovery of a second peak at \phi ~ 0.6. We attribute this peak to absorption in an accretion stream from the companion star HDE 226868. We have estimated the ionization parameter at different positions showing that radiative acceleration of the wind is suppressed by photoionization in particular regions in the binary system. To obtain the variation of column density with phase, we make estimates of neutral wind density for the extreme cases that acceleration of the wind is totally suppressed, or not suppressed at all. An accurate description will lie between these extremes. In each case, a strong variation of column density with orbital phase resulted, similar to the variation of dip occurrence. This provides evidence that formation of the blobs in the wind which lead to absorption dips depends on the density of the neutral component in the wind, suggesting possible mechanisms for blob growth.Comment: 9 pages, Latex, 7 ps figures. accepted by MNRA