For the Defense - Vol. 4, Issue 2 - 44

of Chicago and the Chicago police department also
expressed dismay at the outcome. Chicago Police
Superintendent Eddie Johnson stated: "Do I think
justice was served? No. What do I think justice is?
I think this city is still owed an apology."17 While
it is still unclear exactly how the defense brokered
dismissal of all charges in this controversial case
that captured national headlines for weeks, it
is apparent that the extrajudicial statements of
law enforcement played a role. The Smollet case
demonstrates that both sides of the aisle take risks
if they choose to speak publicly without careful
consideration, coordination and forethought.
Turning to the risk to defendants who engage
with the media during the course of a criminal
case, the prosecution referred to as "Kids for Cash"
brought by the United States Attorney's Office for
the Middle District of Pennsylvania, is a good case
study. In 2008, then state judges Mark Ciavarella
and Michel Conahan were accused of receiving
millions of dollars in exchange for helping
to facilitate the construction of new juvenile
detention facilities. For several years thereafter,
"Ciavarella committed hundreds of juveniles to
detention centers co-owned by [Robert] Powell
(a government cooperator and co-conspirator),
including many who were not represented by
counsel, without informing the juveniles or their
families of his conflict of interest."18
The defendants, facing what would ultimately
amount to life sentences given their respective
ages, entered plea agreements proposing
87-month sentence for both judges, no cakewalk
but at least presenting the possibility of release.
Id. The District Court rejected the pleas. In doing
so, United States District Court Judge Edwin Kosik
explained that his decision, in part, was based on
the fact that both judges demonstrated a denial
of responsibility outside of the courtroom-
Ciavarella, publicly and Conahan, in connection
with the Pre-Sentence Report.19 After the court
rejected the plea agreements, both defendants
withdrew their guilty pleas. Conahan worked
out a separate plea agreement allowing up to 20
years in prison and Ciavarella proceeded to trial
and was ultimately convicted of the majority of
counts against him. Ultimately, the District Court
sentenced Ciavarella to 28 years and Conahan
to 17.5 years in prison.20 The Third Circuit has
affirmed the convictions and sentences of

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Vol. 4, Issue 2

these defendants. The roughly 10- and 20-year
differences in the sentences of these defendants
between the original plea deal and sentencing is
a frightening, cautionary tale about inflammatory
extrajudicial statements by defendants.
No matter your opinion of the Smollet or "Kids
for Cash" cases or the publicity surrounding them,
we strongly recommend that individuals on both
sides of the aisle, as a rule of thumb, remain
(largely) silent in the press and advise their staff
to do so as well, in all but the most exceptional
instances.21 Any extrajudicial statement, even
in the most intensely publicized cases, should
be an exception to the rule and the product of
serious deliberation, wordsmithing, and analysis.
At a minimum, defense counsel must review the
ethical and local rules, interpretative decisions and
become familiar with the local practice and the
temperament of the assigned trial judge (if one
has been assigned) with respect to case publicity or
dealings with the press.22
Convincing the client's entourage to remain
silent in response to media and public attention
can be challenging. Defense counsel should set
forth that expectation from the very beginning
of the representation and communicate it to all
potential sources of extrajudicial comment on
the case. To the extent necessary, coordinate with
the client's business colleagues, public relations
agent and employees. If you feel comfortable,
this task may be best delegated to in-house or
personal counsel and, if trusted, a public relations
agent. Taking the time and effort to get the
client and all other individuals involved in the
representation on the same page with respect to
public statements or third party communications
may feel like a somewhat ancillary task, but, the
higher profile the case, and the more crowded the
client's entourage-the greater risk of extrajudicial
statements spiraling out of control to the
detriment of the case. 23
If or when the exceptional case or circumstance
does present itself, we reiterate our strong
recommendation that you assert yourself as lead
counsel, and as the unequivocal final say on the
content, timing, and source of any extrajudicial
statement. In these situations, the client may
benefit from the expertise of a public relations
professional, but in a criminal case, lead counsel
must nevertheless be the final decision maker on
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