Publicity: Lawyers hate it -- when they can't control it. But whenever the publicity is in their hands, lawyers love it, and there perhaps will be no better example of this than the upcoming murder trail of Bernard C. Welch Jr.
Welch, accused of shooting physician Michael C. Halberstam in December, is expected to go on trail Wednesday in D.C. Superior Court. But Welch's lawyer Sol Z. Rosen has asked Chief Judge H. Carl Moultrie to transfer the case to the Caribbean because of adverse pretrail publicity.
Now remember the interview Welch gave to Life magazine?
Okay, now watch the left hand and the right hand very carefully:
Left Hand: Last Tuesday, Welch gave the Associated Press a two-hour interview.
Right Hand: On Wednesday, Rosen asked that all pretrail hearings in the Welch case be closed to the press because of publicity surrounding the case.
Left Hand: That same day, it was announced that Welch had sold the literary rights to his life to crime to a New York newspaperman.
Right Hand: Thursday, Rosen subpoenaed reporters from The Washington Post and The Washington Star, demanding that they bring to the trial all newspaper clippings relating to the case to prove how excessive the publicity has been.
Left Hand: Later that same day: Welch gave a two-hour tape-recorded interview to The Post.
And so it goes.
Publicity can be the bane or the blessing for lawyers and defendants in every criminal trial in the courthouse.
It can hurt a case, or help a case. But it must be used carefully. The reason publicity is such a concern here is that the District's law on change of venue is unique. Consider this:
If, for example, defendants in Prince George's County Circuit Court think they are getting adverse publicity that might taint their trials, they can ask that their cases be moved, say, to Baltimore County Circuit Court.
And if defendants in a federal case here feel the same way, they, too, can ask for transfers. To wit, the 1979 retrial in U.S. District Court of former D.C. Department of Human Resources director Joseph P. Yeldell and developer Dominic F. Antonelli, which was moved to Philadelphia.
But there is no statutory provision for transferring cases in Superior Court because the District of Columbia is, in effect, a one-courthouse state.
As a result, many defense lawyers feel defendants in highly publicized cases are left in a swirl of publicity, and more importantly, their fates rest in the hands of biased jurors.
Short of passing a law to establish change of venue, the only answer may be to delay the trial until potential jurors have forgotten about the initial incident.
But even that option disappears when defendants are held in jail prior to trial under the District's rarely used preventive detention law.
Under that law, if a judge grants a government request that a defendant be held without bond before trial, the U.S. Attorney's Office must bring the case to trial within 60 days.
This provision certainly ensures a speedy trial. But some defense attorneys contend that since preventive detention often is requested in cases which have received a great deal of publicity, the defendant is forced to trial when the case is still fresh in the minds of potential jurors.
That is the case with Welch, and he is hardly reluctant to blow hiw own horn about that -- in the media, of course.
"I think they [the press] have already found me guilty," Welch said in an interview with The Washington Post last Thursday."I just don't believe I'll ever get a fair trial in the Washington area. It's going to be a farce. . . .
"I don't think there's anybody who has not seen my picture or read about the trial in their newspapers or magazines. I just can't picture any juror from this area getting up there and saying, 'I can use fair judgment in this case.'"
However, at least one leading criminal defense attorney, Christopher G. Hoge, thinks Welch is bringing on his own problems. Hoge was one of the defense attorneys in the 1977 Hanafi Muslim case, possibly the most highly publicized trial in recent years here. (It took place in Superior Court.) Hoge also defended David Garris, who recently was convicted in a highly publicized trial of murdering a WMAL-AM advertising employe.
"Any time Welch or Rosen give interviews in public, they're basically jeopardizing any valid motion he [Welch] might have," said Hoge. "Publicity is detrimental in a situation like that unless you've got a clearly sympathetic defendant, and you can portray those sympathetic qualities to the media and get those messages through to jurors.
"Any time you seek publicity," Hoge said, "You're jeopardizing the whole spirit of what a trial is supposed to be -- 12 people who have been insulated from those kinds of factors."
Rosen was not available to discuss his strategy. It should be noted that there may be at least one possible explanation for some of the publicity-seeking. Welch has represented himself as indigent to the court. Rosen presently is defending Welch with public funds. The Life photo deal was supposed to net Welch $8,000 for personal photographs -- if the Internal Revenue Service doesn't take it away.
The book deal with New York writer Paul Sann is set up to benefit Welch's children, and not Welch, to avoid further problems with the IRS. But, according to Welch in his interview with The Post, Rosen also will benefit from the proceeds of the contract, from which he will take his legal fees.
Publicity: Lawyers hate it when they can't control it, but love it when they can.