Podcast - Understanding the Media

Dan Small: Welcome to another episode of "The Trial Lawyer's Handbook." In this episode, we move to the corruption case of United States v. Rendle, based in part on my ABA book "Lessons Learned from a Life on Trial."

Corruption can damage important government programs. The Department of Housing and Urban Development, or HUD, 518(b) program, was designed to provide assistance for needed renovations for low-income housing. It was a good program if it was done right. But in Massachusetts, some of the folks who ran the program were doing it wrong, taking bribes from building contractors in exchange for giving out 518(b) contracts. Not just cash bribes, but roofs, siding, renovations, all kinds of work on the homes of the HUD officials and their families. You name it, they demanded it.

In the Public Corruption Unit of the United States Attorney's Office in Boston, where I was a prosecutor, HUD investigators complained that the program was corrupt. So we called in a large number of the contractors. And one by one, I gave them what we call my "train speech." The train speech is: "The train is leaving the station, and you can either be on it or under it. It makes no difference to me." Mostly it was a bluff. We believed they were making payoffs, but we didn't have enough hard evidence yet. Nevertheless, the bluff worked. One of the contractors, plagued by guilt and fear, gave in, confessed and agreed to plead guilty and cooperate. Once he did, other dominoes started to fall, and we obtained solid testimony against several HUD officials, which we then did everything we could to corroborate with documents and other evidence. 

Ultimately, we were able to bring an indictment against 10 people, including six present or former HUD officials. The case moved forward toward trial.

Many lawyers aren't comfortable with the media, so they ignore the press and hide behind the old saying, "Well, we don't try our cases in the media." That's fine for many cases, but for many others it misses the point. All kinds of cases, criminal and civil alike, are brought for reasons that go far beyond just winning or losing in court. In all kinds of cases, our clients, whether an individual, a company or the government, have interests beyond the verdict itself. Deterrence, reputation, profits, sending a message, educating the public — there are many reasons why the megaphone of the media can help reach broader goals.

In a high-profile case, we often don't have to seek out or generate media interest because it's already there. Our job as trial lawyers is to inform and shape that interest. Many reporters don't have the background knowledge or experience to fully understand what a case is about or what's happening in court. I was fortunate in this respect. I had a variety of jobs before, during and after law school that brought me into contact with the media. I knew reporters personally, was friends with some and had some understanding of both the challenges they face in reporting legal cases and the opportunities they present to trial lawyers.

All of this is exponentially true in corruption cases. They are naturally of interest to the media. From the prosecution's perspective, the government is never going to uncover and prosecute all corruption, so it's very important that the cases that are brought be reported positively and widely, both to deter those who might be tempted by corruption and to reassure the public that something is being done. From the defense's perspective, if the client is a public official, how the public sees them through the lens of the media may be particularly important. A lifetime of building a public image or reputation may be at stake. 

One of the things that lawyers don't understand is that reporters and their bosses are competing with each other. Competing to be the first, competing to be the best or competing to get the scoop. It can be a tough business.

Boston before the internet was a good example. There were two major newspapers, The Globe and The Herald. Everyone read the paper, just like we all look at our devices now. And as a result, the two papers competed intensely for stories. The 518(b) case was an attractive one for the media. After all, these HUD officials were supposed to be running a program to help low-income families whose houses were falling apart. Instead, they were using it to line their pockets. The renovations on the officials' homes were usually much nicer than anything the contractors were doing for those they were supposed to be helping. 

We understood the attractiveness of the case and the value of using it to get the word out about our efforts to fight corruption. Some indictments are just bare bones legal documents. The indictment in this case was much more. We used the evidence we had to try to explain the program and its abuse, and to tell the story clearly and dramatically. Same with the initial hearing. When the indictment was made public, we used the public event to tell the story. It worked. The media was intrigued, but I forgot about the competition part.

Both major newspapers, The Boston Globe and The Boston Herald, had reporters assigned to cover the federal court in Boston. I knew them both from prior cases. Like all the media, both reporters were interested in the case and attended the hearing. When it was done, as I was walking out of the courtroom, The Herald reporter was walking with me and chatting about what a great case this was. After a long day, I agreed and commented that it was sort of like "Robin Hood in reverse." They were taking from the poor to give to the rich. We said goodnight and went our separate ways, and I thought nothing of it.

Until the next morning. Both papers featured the story and the case on the front page. But in The Herald, above the banner headline, was the quote, "Robin Hood in Reverse." And the article below noted me as the source for the quote. My first reaction was delight. "Hey, look at the cool quote on the front page." But when I got to the office that morning, the reporter for The Globe had already called several times. He was furious. And his editor had called my boss, the United States Attorney, equally angry. "How could you do that me?" The Globe reporter asked angrily when I returned his call. "You didn't say that in the open hearing? Why would you feed such a great line only to The Herald? That's not fair. You're not playing by the rules." And you know what, he was right.

Our job as lawyers is to speak to the court. And their job as reporters is to report on what is said and written in open court or in another environment that gives equal access. We shouldn't be favoring one media outlet over another by feeding them an exclusive quote. Sure, that wasn't my intent. After a long day in court, I thought I was just chatting with a friend. But I didn't make that clear, and it dramatically demonstrated the need for clarity and caution in dealing with the media. The next time I saw The Globe reporter at the bar where the courthouse regulars hung out, I bought the first couple rounds. Lessons learned.