THE BLOG

Will Media Coverage Matter in Baltimore Trials?

05/06/2015 01:22 pm ET | Updated May 06, 2016

When someone is charged for a crime, they rarely throw up their arms and harrumph, "Well, you got me, I guess. You can lock me up for 25 years now..."

We can expect, therefore, that despite the temporary calming of nerves in Baltimore, the saga of Freddie Gray and the police officers charged in his death has just begun.

Our legal system demands an aggressive defense, and we will surely see one from the Baltimore police officers whose freedom is on the line following being charged by Baltimore State's Attorney Marilyn Mosby.

Over the years, I have advised clients on navigating media coverage of their explosive cases. And one thing is for certain: The first version of events we heard about Baltimore will not be the same as the second, third or seventeenth. These future versions may be better or worse for the accused officers.

We are living in the "Age of Instant Closure" where resolutions to messy situations are expected to happen in the time it takes for a tweet to scroll off the screen of our smart phones. The charges of the Baltimore cops came down very fast, and, from a purely communications perspective, Mosby executed them flawlessly. In her press conference, she was forceful, crisp and thorough, and the charges defused tensions and generated goodwill for a city seeking justice from the authorities.

The problem is that justice is not about quelling riots or getting revenge, it is about determining guilt or innocence and punishing or vindicating the key players as the law demands.

And this is where things get tricky.

Representatives for the charged police officers have already weighed in on the speed, recklessness and lack of merit of the charges. This is their job in addition, perhaps, to their true beliefs.

What we will see next are news reports outlining a different version of events, not unlike what we saw after the Ferguson protests following the shooting death of Michael Brown by a police officer. The original story was that Brown had been shot by officer Darren Wilson as Brown was fleeing. Then news coverage, with the help of alleged witnesses, reported that Brown held his hands up in surrender when Wilson shot him. After a turbulent summer and fall, a consensus, aided by forensic evidence, began to form that Brown had not been shot fleeing or surrendering, but after a struggle with Wilson where he had attempted to grab the officer's handgun.

The point here is simply that stories change as time passes and new evidence surfaces.

In the "Age of Instant Closure" we can expect new twists to the Baltimore narrative in the weeks and months ahead, as we saw with Ferguson and the Rolling Stone/UVA rape case.

The ripest flashpoints include questions surrounding what actually happened inside that police van and the extent to which those events qualify as murder (or manslaughter, as some of the officers have been charged with).

In the PR battle, prosecutors have an advantage because they own the story that the media wants to report: There's a new sheriff in town hunting bad guys. With the exception of blatantly exculpatory evidence, the defense teams of the Baltimore officers will have an uphill media battle because the journalists covering the case will be predisposed to be skeptical of anything that contradicts the Alpha Story: Those responsible for the avoidable death of Freddie Gray were caught and will be punished.

Does what is reported in the media affect what happens in court? It can, to a point. Media coverage can influence, but not decide cases.

One of the first things that happens when a judge instructs jurors not to read the news on a case is they Google the defendant. They're not supposed to, but they do it, and prosecutors and defense lawyers know it and plan accordingly. Contrary to what we see on TV police procedurals, juries don't necessarily consist of people who swear that they never heard a single word about a given case. Besides, jurors aren't always honest about what they've seen and heard.

Despite a judge's demand to not speak publicly about a case (a "gag order"), prosecutors and defense attorneys try to get their versions of events into the media bloodstream anyway for reasons ranging from potential jury influence and plea bargaining negotiations (yes, prosecutors read newspapers and blogs) to personal career advancement.

Right now, the charged Baltimore cops are trying to build their own cases. They are looking for any morsel of data to demonstrate that they were wrongly charged. Once discovered, such a counter-narrative will find its way into the media, and the cops hope that it helps their cases.

At this writing, we don't know what those arguments will be, if they exist at all, or how compelling they will be in discrediting the current version of the story. My experience has been that defendants overestimate the vindicating power of helpful facts, which must compete with the more powerful emotional hunger to punish any player associated with a tragic story.

My sense is that it will be easier to convict these officers in the Media Court of Instant Closure than it will be to convict them in a court of law. Murder and manslaughter charges require specific legal thresholds, and defense counsel will surely lay these out both in court and in the media that may inform the juries.

Regardless of the plea bargains or jury verdicts that lie ahead, Mosby can claim that she did her job: She charged those who the evidence suggested at the time were responsible for the death of Freddie Gray. But as we wait for trial, we should keep an eye on old and new media. The courtroom has the potential to reach a different conclusion than an instant tweet.