THE COURT OF PUBLIC OPINION

THE COURT OF PUBLIC OPINION

By: Mark Fierro

“An attorney’s duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.

— Justice Anthony Kennedy

U.S. Supreme Court, Gentile v. State Bar of Nevada, June 27, 1991

One of the most important areas that an attorney can consider is defending their client when they have been attacked or demeaned in the media: “the court of public opinion.”

Next month, June 27 marks the 25th anniversary of a landmark decision in the U.S. Supreme Court, where the court of public opinion was at the heart of the case Gentile v. State Bar of Nevada.

In 1987, Dominic Gentile was a rising star in Nevada’s legal community. He was known as a resourceful criminal defense attorney who had authored several articles about criminal law and procedure, and had served as an associate dean of the National College for Criminal Defense Lawyers and Public Defenders. Gentile would later become a professor at UNLV’s Boyd School of Law.

In the 1987 case, Gentile found himself in the unenviable position of having to defend his client against a multiple-felony indictment in the case of Western Vault. And in doing so, he had to point a finger at the only other possible culprits: undercover detectives in the elite intelligence division of the Las Vegas Metropolitan Police Department.

Soon, Gentile found himself swimming against the tide of 17 articles in the Las Vegas Sun and Las Vegas Review-Journal, and a number of TV news stories. One of those TV reporters was me, when I was covering the courts for KLAS TV Channel 8, the CBS affiliate in Las Vegas.

As a result of the U.S. Supreme Court decision, the functions of the courts and public relations were officially wed and put into perspective in a landmark ruling that would recognize and guide that grey area known as “The Court of Public Opinion.” The case involved the Jan. 31, 1987 burglary of Western Vault, a private, independent, 24-hour access vault that allowed customers to lock up valuables with minimal paperwork…a factor that appeared to be a genuine business advantage for local drug dealers. At the other end of the spectrum of Western’s Vault’s clients were the Las Vegas Metropolitan Police Department’s undercover detectives, who stashed roughly $300,000 in travelers checks for a “flash roll,” and four kilograms of cocaine. The drugs and money had been used as part of an undercover operation.

When the case went to trial six months later, Gentile prevailed on all 11 felony charges after a two-week jury trial. That high-profile win guaranteed Gentile star status among the criminal defense bar. But that star looked like it would soon tarnish when the state bar of Nevada filed a complaint against Gentile, alleging violation of Nevada Supreme Court Rule 177, which governs pre-trial publicity.

After a hearing, the Southern Nevada discovery board of the state bar concluded that Gentile had violated the rule and recommended a private reprimand.

Ouch.

Gentile lost.  Then, he appealed to the Nevada Supreme Court. And he lost again…that time, in a public hearing. Now, what would have been a private reprimand had turned into a full-blown public nightmare.

But this is where it gets interesting: Gentile took the matter to the United States Supreme Court. And he won.

The case became a landmark First Amendment decision and Dominic Gentile became a nationally recognized First Amendment expert defending media outlets and individuals on First Amendment cases all over the country.

In his landmark writing, Justice Kennedy penned one of the more memorable, succinct remarks the court had ever issued: “Nevada’s application of Rule 177 in this case violates the First Amendment.” Not much gray area there.

In a recent interview, Gentile outlined some pretty solid rules for entering the fray when members of the media pursue a client. I’m reprinting a portion of his words, verbatim:

“Whenever you’re dealing with a public figure, whether it be an elected official, or a business person who has a high profile, or a well-known business person who is not ordinarily in the media but is at the moment, you have many things to protect besides the individual from an adverse decision in a courtroom.

“You have to, No. 1, protect the business that is associated with that person or vice versa. You have to protect that person’s family from the moral negative impact of this kind of adverse publicity, because in the face of such publicity, children’s playmates’ parents will tell their kids, ‘Don’t play with them anymore.’ People are ostracized. Turn their back to people. Not necessarily because they believe that the allegations are true, but they simply just don’t have room in their lives for such controversy. So in those instances, you do have to push back in order to be able to minimize that kind of damage…not just to a person’s reputation, but to the moral capacity that the person is going to need to fight the allegations.

To view much more of this interview with Gentile, please visit:

www.youtube.com/watch?v=10XzFO7Lx-4

Mark Fierro began his career as a reporter/anchor at KLAS-TV, the CBS television station in Las Vegas. He worked at the U.S. House of Representatives in Washington, D.C. He served as communications consultant on IPO road shows on Wall Street. He provided litigation support for the Michael Jackson death trial. He is president of Fierro Communications, Inc., and author of several books including Road Rage: The Senseless Murder of Tammy Meyers. He has made numerous appearances on national TV news programs.