Spinning Wheels: The Television Interview

Posted on Jul 27, 2017 in Blog Entry: Spinning the Law

Attorney at law, legal analyst, high stakes litigator, and former U.S. Attorney Kendall Coffey discusses the importance of the television interview for law spinners. Television interviews can be a great forum for getting a message to the public. But they sometimes offer pain as well as gain because, in many ways, the broadcast venue is less forgiving than a judge and jury. During the Elián [González] case, I appeared in dozens of national news interviews over a four-month period in 2000. As I discovered immediately, each interview required the same intense level of preparation that lawyers require for a closing argument, except that closing arguments rarely occur between 7:00 and 7:30 a.m. – that is, when network morning shows were starting their day with Elián. The time of day was manageable – no one on our team was sleeping much. As I soon learned, however, there were other factors that made television interviews and court appearances about as similar as Oz and Kansas. Superficially, a reporter’s interview consists of questioning lawyers about the client’s case. Just as judges question them in a regular courtroom. And, like good judges, good reporters typically ask thoughtful questions that intellectually challenge the attorney’s position, especially in high-profile cases where reporters can take the time to study the issues. Judges and juries, though, while holding the actual power of decision, are almost always a more hospitable venue than the networks. In a courtroom, judges and juries actually want lawyers to do their best and are often uncomfortable, even frustrated, over courtroom stumbles. As judges and jurors watch a lawyer walk across the legal tightrope, they want to see him or her safely reach the other side, even if they do not agree with that lawyer’s perspective of the case. In high-profile cases, on the other hand, television interviews might just as soon see the attorney stumble precariously on the tightrope with arms flailing, perhaps hanging on by a finger or maybe even falling. Legal missteps, like other unexpected twists, are simply more newsworthy. And the court of law is more forgiving of mistakes than the court of public opinion. When attorneys misspeak during court proceedings, their corrections are routinely accepted. Regarding damage control for televised mistakes, however, there is usually more damage and less control. In contrast to ongoing court proceedings, there is no second chance for correction after the interview is concluded. And while all judges know that smart lawyers are capable of saying dumb things, neither the media nor the public seem sympathetic when ill-advised mouthings come from professional mouthpieces. Also crucially different is the appetite for conflict. Judges and jurors rarely enjoy contentiousness between opposing attorneys. To the contrary, when judges ask questions, they often look for areas of agreement between lawyers and are usually gratified when opposing lawyers seem to agree on significant issues. Talk shows, however, do not stage...

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Entrapment: Stuck in the Trap or Beating the Rap?

Posted on Jul 17, 2017 in Blog Entry: Criminal Cases

When the police place the bait and defendants take the cheese, can they get out of the trap? Learn more about Kendall Coffey on his profile on Super Lawyers. The term entrapment is a favorite of the television law shows. It is frequently understood to mean that when a defendant takes the bait dangled by police, the entrapped defendant can count on an acquittal. The scenarios for setting up defendants are known as “stings” and are a common tool of law enforcement in cases ranging from public corruption to drug deals. Thus, the Department of Justice has long recognized that undercover operations have been “especially effective in public corruption investigations.” In one of the most famous of sting operations, the FBI during the late 1970s provided a fake Arab sheik who approached various members of Congress to lure them into accepting a bribe on videotape. By 1981, the “ABSCAM” investigation had netted convictions of six members of the House of Representatives and one US senator. Unsurprisingly, there was little applause from Congress, which criticized the FBI’s tactics, finding that the “use of undercover techniques creates serious risks to citizens’ property, privacy, and civil liberties.” Responding to such concerns, the attorney general imposed a broad array of preconditions limiting future attempts to use a sting operation to “set up” a public official. There were, of course, completely fictitious bribery shams, and there was neither a real sheik nor a real transaction to be purchased with bribe money. Even though a sting operation does not present a real-life deal and rests entirely upon a fiction, courts nevertheless hold that the conduct of the defendant is as criminal as if the participants were real. The cry of entrapment is frequently heard outside the courtroom when defendants are strung. In the actual trial, though, entrapment is a difficult defense to win. As the US Supreme Court explained, rather than the government’s conduct, “the entrapment defense focuses upon the intent or predisposition of the defendant to commit the crime.” The absence of a defendant’s preexisting criminal tendency must be clear. Most basically, a defendant has to show that he was actually turned into a criminal by the enticements of the police. If the defendant was simply repeating an already-existing practice of similar misconduct, he was not entrapped – he was just finally caught. An entrapment defense is a high-risk strategy. Presenting entrapment requires acknowledging that the defendant perpetrated the acts alleged by the prosecution. Instead of rolling the dice and taking this huge gamble, defendants may prefer to argue that their words and actions had meanings that were innocent rather than criminal. Because sting operations are planned in advanced, they typically have audio and video recordings to capture every memorable moment. After the arrest, the defense listens carefully to such tapes to decide whether to argue that the defendant’s conduct was arguably innocent (deny,...

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A Media Primer for Spinners: Silence is Golden, Especially When Required

Posted on Jun 29, 2017 in Blog Entry: Spinning the Law

Kendall Coffey is a former U.S. Attorney for the Southern District of Florida and founding member of Coffey Burlington, PL. Learn more about his expertise in law on his personal website: http://kendallcoffey.com/ With legal news, as with diets, some of the most delicious tidbits are off-limits. In fact, some laws make it a federal crime to disclose confidential information about especially sensitive subjects. In cases with national security implications governed by the Classified Information Procedures Act (CIPA), a leakster could potentially face criminal prosecution. Grand jury proceedings are also confidential, and prosecutors and government agents could be prosecuted themselves for disclosing those secrets. Significantly, witnesses are under no such restraints, and some are surprisingly talkative. In ordinary circumstances, the rules prohibit attorneys from creating publicity that they know or should know will have a “substantial likelihood of materially prejudicing” the judicial proceedings. Publicity hounding early in a case is more tolerable, but as the trail draws near, the risk skyrockets that publicity reaching future jurors will influence their later decisions. Judges understandable perceive that the likelihood of prejudice is great with publicity that is near the time of trial as opposed to negative stories much earlier that are mostly forgotten by the average juror. Moreover, for prosecutors at least, extensive chest thumping about their case is rarely a good idea. Especially if defense attorneys are seeking to move the case to a different city, they will pounce upon press-happy prosecutors as purveyors of excessive pretrial publicity that prejudices potential jurors. An even greater restriction on press communication is, of course, the gag order. Although the term gag order is often used loosely to describe an assortment of limitations, in its extreme form, a true gag order prohibits virtually any communication about a pending case by the litigation team or courthouse personnel. Ordinarily disfavored due to concerns for rights of the press and public, gag orders were imposed in the Scott Peterson and Michael Jackson trials because nothing else could adequately protect the defendants from barrages of relentless news coverage. Some confidentiality orders are less drastic, even routine. For example, in cases about business trade secrets, courts frequently prohibit the disclosure of confidential processes, patents, or formulas. Perhaps because these restrict access to technical tedium rather than to courtroom dramas, they are often agreed upon by all parities and raise fewer objections from the...

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Selective Prosecution: Illegal or Just Unfair?

Posted on Jun 1, 2017 in Blog Entry: Criminal Cases, Blog Entry: Spinning the Law

This is an excerpt from Spinning the Law by Kendall Coffey. The full book is available for purchase on Amazon here. So-called selective prosecution is only illegal if a defendant is singled out for a purpose that is itself wrongful, such as discrimination based on race, gender, or political or religious affiliation. Like claims of a prosecutor’s vendetta, allegations of selective prosecution may get some press play but are almost never heard by juries. Actually, there is nothing illegal about prosecutors being selective. Law enforcement has every right to allocate limited human and financial resources and pursue some but not all perpetrators. No matter how many people are traveling 72 mph in a 55-mph zone, the two who are pulled over have no right to complain about the hundreds who continued to speed on down the highway. Nor is there anything illegal about targeting high-profile wrongdoers. In fact, in the federal system, where only a small fraction of potential crimes are actually the subject of federal indictments, prioritizing high impact cases is the name of the game. From the prosecutor’s standpoint, a defendant loaded with publicity value creates plenty of free advertising for the message of law enforcement about crimes and punishment. Prosecuting Winona Ryder for shoplifting at Saks Fifth Avenue made a more potent warning to prospective thieves than the conviction of an unknown. Similarly, bringing tax evasion cases against actor Wesley Snipes and businesswoman Leona Helmsley was a powerful message to potential tax cheats. What makes selective prosecution illegal is an improper purpose. A prosecution mainly motivation by vindictiveness, if provable, would qualify. So would targeting particular political leaders or members of a racial or ethnic minority. But the last time the Supreme Court validated a selective prosecution defense was during the nineteenth century. In the famous case of Yick Wo v. Hopkins, the court found that a San Francisco ordinance imposing stricter requirements on laundries was only enforced if the operators happened to be Chinese. Unless a discriminatory effect as well as a discriminatory purpose can be proven, no claim will be sustained. Such selectivity could also be a constitutional violation if, say, a prosecutor targeted only defendants of a particular faith or political affiliation. In such instances, it is not the mere act of selecting some defendants rather than others. It is instead selecting them on grounds that violate their First Amendment or equal protection rights. Much of what is claimed to be discrimination results from efforts to target prominent people. Perhaps celebrities and politicians are indeed discriminated against in this sense, but such extra scrutiny is an occupational hazard. As long as neither political ideology nor demographics are the motivation, it is not illegal discrimination. It is the price of fame. For the latest news and updates for Kendall Coffey, be sure to follow him on...

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The Lars Larson Show: Director James Comey Fired: An Interview With U.S. Attorney Kendall Coffey – May 10th, 2017

Posted on May 26, 2017 in Media Appearance: Spinning the Law with Kendall Coffey

Kendall Coffey, one of the top rated business litigation attorneys in Miami, FL, made an appearance on the Lars Larson Show to offer his insight in the recent firing of FBI Director James Comey. Learn more about Mr. Coffey’s law background here: http://www.law.miami.edu/faculty/kendall-coffey Lars Larson: Welcome back to the Lars Larson show. It is Tuesday night, and the biggest news of the night is that the Director of the FBI of the United States has been fired from his job by President Donald Trump on the recommendation of the Attorney General and the Assistant Attorney General. I want to get a perspective on this and what this means, and whether or not it was the right thing to do. I think it was the right thing to do. I thought Comey should have been fired a long time ago, but it’s a pleasure to welcome back to the program former U.S. Attorney and prominent South Florida lawyer Kendall Coffey, who has worked with Democrats, and you are a Democrat. Mr. Coffey thank you very much. Listen, I think it’s fantastic, I don’t get that many Democrats on the program. Kendall Coffey: Well, I confess to the allegation. Thanks for having me on anyway. And it’s not a joyous occasion, in the sense that James Comey is a dedicated guy. I think he was a well-intentioned guy, and he served this country long and very well. On the other hand, you know, maybe the FBI needs a fresh start because the controversies continued, and he made, I think, a mistake that he never really got away from when he injected himself back in July of 2016 as the decider on the Hillary Clinton email investigation. He should have gone by the book. Once you sort of start writing a new book, it’s not in the existing law enforcement protocols. You know, all of a sudden you get into some crazy chapters, and of course we all know where it went from there. So I have to say, it may end up being the best thing. I know there are going to be all kinds of accusations about politics and [that] the president didn’t want investigat[ion into] Russia and stuff like that. I don’t think that’s it at all. I just think [it] became this accumulation of concerns and complications and, frankly, some mistakes, [and it’s] time for a fresh start. The critical thing is of course going to be who is selected next because it is one of the most important government positions outside of the United States Cabinet in the Supreme Court, in the country. So all eyes will be watching the president as he finds a replacement for James Comey. LL: Well, Mr. Coffey, I hope I didn’t put you off with the glee in my voice, but I want you to understand it this way. It’s the same kind of...

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