For the past several years my colleague Jeff Haney and I have been writing a column for Vegas Legal Magazine entitled “The Court of Public Opinion.”

It’s based on high-profile legal cases that get media attention, sometimes from the insider’s perspective because our team is working on the issue.

The court of public opinion comes into play as soon as an issue blows up into the public consciousness or one side or the other in a trial makes comment.

One of the singular, nationally famous cases involving this dynamic had its genesis right here in Las Vegas. 

My friend and attorney Dominic Gentile took his case to the media after police pointed the finger at Gentile’s client in the 1987 Western Vault case. It was almost like an LSAT test. Only Gentile’s client, Grady Sanders, the owner of the private vault and Las Vegas Metropolitan police narcotics detectives, who rented a safe deposit box at the facility, had access. 

Police officials said they rented the deposit box, which was open 24 hours as day, as part of a sting operation. They stored hundreds of thousands of dollars in American Express Travelers Checks and kilos of cocaine at the facility. Then the drugs and the travelers checks went missing.

The narcotics officers were early suspects. When the cops were cleared by polygraph testing, police went on the record with the media saying it wasn’t their guys. Their suspicions turned to Gentile’s client Sanders. 

When Gentile fired back, police filed a complaint with the Disciplinary Committee of the Nevada State Bar. The committee upheld the complaint. Gentile appealed to the Nevada Supreme Court which upheld the complaint against Gentile. Attorney Stan Hunterton, who would go on to serve on the Las Vegas Strike Force, the team of prosecutors who investigated organized crime in Southern Nevada, funded an appeal to the U.S. Supreme Court — where Dominic Gentile prevailed in the landmark case Gentile v. State Bar of Nevada. 

It was Justice Anthony Kennedy who famously stated that among the “duties” of defense attorneys is defending their client in the court of public opinion: 

“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

“For me, the rule of go or no-go as far as media attention may depend on whether your case already has attracted public attention,” Gentile told Vegas Legal Magazine in a recent interview. “If your case does not already have public attention, and if it’s a criminal case, then in my mind you have a duty to keep it out of the public’s attention because your duty is to your client. 

“However, if your case already has public attention, then you have a duty to weigh in on it, to engage with the media. Because that duty is to your client, if he’s taking a beating in the media, then you owe it to your client to correct that, and there is no way to correct that other than to come forth with additional information and perspective.”

Gentile also draws distinctions between civil litigation and criminal cases, and between defendants who are public figures versus those who have no public persona.

“In a civil litigation, insurance companies spend enormous amounts of money doing issue-related or issue-focused propaganda — and that is the word I want to use,” Gentile said. “They try to shape the public’s minds because jurors are members of the public, and that’s the term public opinion in this context. They try to shape jurors’ minds and establish prejudices and biases in a broad manner so that it is not with regard to a specific case, so that if litigation comes along, they’ve got that advantage already. In that instance, the lawyer’s concern with public opinion doesn’t mean that he or she has to go speak to the media, because there may be no attention to that case as yet. 

“Now if that case is a civil rights case and there is no attention paid to that case as yet, then in my mind the lawyer has a duty to bring it to the attention of the media because that is core speech that goes right to the behavior of government, and the citizenry needs to know about government misbehaviors.”

Gentile added: “On the other hand, a criminal case may require a different approach. At least since Ronald Reagan, there has been a constant flow of media attention paid to what is described as rising criminals, and politicians have preyed upon the public’s fear of crime, which is constantly fed by public officials. So in the criminal case context, if you’re representing somebody who doesn’t have a public profile, and there is no attention paid to the case, then your best bet is to leave it alone. But it’s different if you’re representing a public figure — you can bet that lots of adverse consequences have already occurred even prior to a possible conviction. They’re going to have people turn their back on them, people that they thought were their friends.”

Finally, Gentile noted that the historic U.S. Supreme Court decision bearing his name — which is still studied in law schools today — gives defense attorneys a good deal of leeway in responding to the opposition in the court of public opinion.

“It really does not tie your hands in terms of what that response can contain, so long as it doesn’t appear to be something that is evidentiary and not admissible,” Gentile said. “So if you have any kind of a good faith belief that this is something that’s going to come out in the case at the trial, if the trial happens, then you could go with it and you could also tell a story.”

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 24 nine figure IPO global road shows on Wall Street. He provided litigation support for the Michael Jackson death trial.

He is president of Fierro Communications, Inc., which conducts mock juries and focus groups in addition to public relations and marketing. Fierro is the author of several books including “Road Rage: The Senseless Murder of Tammy Meyers.” He has made numerous appearances on national TV news programs.