Happy Veteran’s Day to all who have served past and present! You are appreciated not just today but every day.
With the release yesterday of Kirk Nurmi’s first of a three-book series about representing Jodi Arias, many have been talking about the propriety of an attorney writing a book about his former client, and a prosecutor writing a book about a case that is on appeal. I’ve seen plenty of the former but I recall no book of the latter (though I’m not saying it hasn’t occurred—I just don’t know of any such books).
Defense attorneys are bound by attorney-client privilege not to disclose private communications. The privilege continues even after representation ends. That doesn’t mean, however, that the attorney is precluded from sharing his personal experiences and interpretation of conduct that occurred in public, such as the courtroom. A client can also consent to the disclosure of privileged communications. The privilege is held by the client, Jodi Arias, not the lawyer.
I have no idea, as I write this, what Nurmi’s first book in the series includes but, at some point, in one of the books I assume he’ll give his take on dealing with negative social media, HLN, and the regular crowd at the courthouse who supported Juan Martinez. I don’t expect him to divulge the content of his conversations with Arias at the Estrella jail or courthouse though, perhaps, he’ll give his take on her testimony that spanned a record 18 days. (It’s a record in my experience of trying and reporting on cases.)
Read the State Bar of Arizona Rules of Professional Conduct, Duties to Former Clients here.
Some defense attorneys who wrote books are F. Lee Bailey, Roy Black, and Mark Geragos. They wrote about numerous cases and their trial strategies, but they also wrote the books, as I recall, long after the cases discussed within them ended.
Juan Martinez’s book is scheduled for release in late January 2016. His situation is stickier, in my opinion, in part because he continues to work as a deputy county attorney and because the case is on appeal. At some point, he may be asked to disclose the contract with the publisher to determine whether he entered into it while still on trial. (I doubt that happened.) Were there, however, email exchanges or conversations with a literary agent and/or the publisher during the trial that show he was contemplating a book? I don’t know that we’ll ever get that answer.
A prosecutor is held to a high ethical standard and must, at all times, maintain the integrity of the office, the investigation, the evidence, and his reputation.
The State Bar of Arizona Rule 3.8 deals with the Special Responsibilities of the Prosecutor. (Click on the rule number to read it.) You’ll see that the language is focused primarily on cases that are proceeding to trial or are in trial. The Rule does not specifically address whether making extrajudicial statements regarding a case on appeal is permitted but it does appear general enough to cover appeals.
While it may be unusual for a prosecutor to author a book about a case that is still on appeal, it may not be against the Bar Rules. However, I haven’t spoken to any attorney, yet, who’s comfortable with the publication of a book about Arias by her prosecutor. In fact, it may not be prudent to publish before the appeal is completed. What if Arias wins a new trial? The book would then arguably violate the Rules.
Martinez is a smart attorney so I assume he has not stepped over the ethical line but you and I are not the final judges of that.