Defence lawyers no longer just prepare for trial – they prepare for a trial by media

Shortly after media executive Indrani Mukerjea was arrested in connection with the murder of her daughter last year, her husband Peter Mukerjea’s lawyer advised him not to give any interviews.

It was too late.

Peter had already spoken to a few channels. “He made the fatal mistake of talking to Arnab,” said Mukerjea’s lawyer Mahesh Jethmalani. The Times Now anchor “slaughtered him” and “ripped him apart”, the senior advocate added.

Mukerjea had a simple reason for speaking to the press: he thought since he was innocent, he had nothing to hide.

But his lawyer felt differently. “Anything you say can be used against you,” said Jethmalani, who was speaking about media trials and crime reporting at a literature festival in Mumbai last December. With him on the panel was journalist Avirook Sen whose latest book Aarushi lays bare the holes in the investigation into the murders of Aarushi Talwar and Hemraj that still led to the conviction of her parents.

Media bias?

As the Aarushi case highlighted then and several others including the Sheena Bora case do now, relentless coverage even before a trial begins can subtly alter the course of justice or at any rate create public perceptions against the accused.

In a media landscape where character studies are drawn up, evidence is analysed on television, and justice is dispensed by shrill anchors during prime time news shows, it is becoming increasingly crucial for defence lawyers to craft media strategies alongside their legal work. This usually involves one key tactic: speak as little as possible.

Rebecca John, one of the lawyers for the Talwars, knows more than anyone else about the damaging effect of a trial by media. Within days of the 2008 double murders of their daughter and household help, Nupur and Rajesh Talwar were painted as debauched, promiscuous and capable of killing to preserve the honour of their family. They were convicted in 2013 despite various apparent discrepancies in the evidence.

“As a young lawyer, my seniors advised me,” said John, “on the importance of reading case files, being sure of the case law on the subject and covering legal aspects. Now, in addition to all that, I advise my juniors to stay away from the media.”

John avoids talking to the media about pending cases and advises her clients to do the same. “Other than a one-line press release, I don’t encourage my clients to speak publicly,” she said. “I have spoken in the past but it is not a winning route.”

Silence is golden

Part of this is to do with the fact that reporters tend to rely heavily on prosecuting agencies for information. The police regularly issue press releases, hold press conferences and often informally leak information off the record to reporters.

“If you are facing the might of the prosecuting agency, there is no way you can win in the media,” said John. “Reporters tend to write what the prosecution says as the gospel truth. It is not a level playing field, and you just cannot keep pace.”

Still, lawyers have to constantly be vigilant about media attention and prepare for a courtroom trial as well as a trial by media.

“Every matter has a different strategy,” said lawyer Hitesh Jain, who has represented both Sanjay Dutt and Preity Zinta. “In a criminal matter, the first piece of advice is not to give interviews. If you make one wrong statement, it can expose you to risk.”

However, remaining completely silent might be equally damaging in an environment where allegations are swirling and a narrative has been created about an accused. “In some cases we ask them to speak,” he continued. “Depending on the opportunity, we then prepare a statement after discussion and ask them to stick to that.”

Tactical statements

Sometimes, it’s also a matter of timing. For instance, when Sanjay Dutt was out on parole, there was a strong public perception that he was unduly benefitting because he was famous. His lawyers then saw no harm in his speaking to the media before he surrendered.

Similarly, when Zinta filed a molestation case against her former boyfriend, the industrialist Ness Wadia, she spoke about it on social media. “If (public figures) don’t speak, people will interpret that too,” said Jain. “So it was important to explain and let people know the facts as to why she filed the complaint. The idea is that once you officially make a statement there is no conjecture.”

But there is no easy balance in such matters. “You are damned if you speak and damned if you don’t,” said Geeta Luthra, who previously argued for journalist and novelist Tarun Tejpal during his anticipatory bail application in an alleged rape case. The case had become a massive media spectacle. “I would always advise a client to maintain a low profile rather than fan the fire. Speaking too much is bound to get you into trouble… But to some extent you have to speak when it dies down a bit,” said Luthra.

She added that when people do speak on behalf of the accused, it is crucial that they are responsible and sensible representatives.

Gagging cops

In other cases that involve terrorism or Naxalism, public opinion is already weighted against the accused. This further complicates matters for defence lawyers. “In such cases the die is already loaded against you and the state goes all out and resorts to dirty tricks to shape public perception,” said Saurav Datta, a researcher and legal correspondent.

The media is not prevented from reporting on ongoing investigations but there is growing unease that perhaps it is overstepping boundaries. A public interest litigation filed by lawyer Rahul Thakur before the Bombay High Court explicitly sought restrictions on the extent of information the police can divulge to the media.

This led to the Maharashtra state government issuing instructions to police officers to refrain from giving out details of a probe, names and details of accused persons or other information before the chargesheet has been filed. The Bombay high court had criticised the police practice of disclosing information gathered during the investigation to the media while stopping short of imposing restrictions on reporters themselves. The judges reasoned that the consequences of excessive media attention could be damaging both to the accused, who is presumed guilty before trial, and to the prosecution too.

A crucial role

Lawyer Manoj Mohite, who has previously argued for Bollywood actor Shiney Ahuja, said the new guidelines have helped to some extent. “I don’t see that much reporting any more,” he said.

However as the Sheena Bora investigation has shown, the Mumbai police hardly held themselves back while serving out a constant stream of information to reporters on motives, witness statements and murder theories. “There was a time when police hand-outs were a starting point for crime reporting. Now, it’s the end point,” said Susan Abraham, a human rights lawyer and former journalist.

Still, lawyers concede that the media does have a crucial role to play especially in matters of public interest – to prevent the rich and well-connected from getting off scot-free or to highlight shoddy investigations or other injustices. It is a question of how much to report that remains problematic.

Creeping biases

In August 2014, the Supreme Court had considered framing guidelines for the media while covering crimes and ongoing investigations. “Can a parallel process of trial by media be allowed when a trial is already going on in court?” the court asked. “We think it affects the entire trial process and rights of an accused. Media briefings by investigating officer during on-going investigations should not happen.”

Though judges are trained to be objective and to ignore the media circus, lawyers point out that judges are human too and subconscious biases can easily creep in.

In 2006, the Law Commission’s 200th report, On Trial By Media, had dealt specifically with this and issues of free speech, fair trials and criminal contempt. It further pointed out that the Supreme Court had in a 1981 judgement appeared to accept the British view that judges and jurors might be influenced subconsciously by what is published or telecast. “However independent-minded,” said Mohite, “subconsciously things may linger in the mind of a judge.”