The Lure Of Cameras And The Hot Mike

If Kim Kardashian can become a star by dint of being idiosyncratically callipygian, and Michael Avennatti can become a progressive icon by representing a porn star between his personal bankruptcy hearings and sleeping on the couch in Rachel Maddow’s green room, why not you? After all, doesn’t every lawyer dream of having his mug on the tube and becoming important?

But there can be a price for fame.

The makers of a docu-series about Meek Mill’s experience with Philadelphia justice officials were hit with a federal complaint Wednesday from a lawyer who says his off-the-record remarks were secretly recorded.

It’s one thing to be forced to fight one’s way through a phalanx of reporters and paparazzi to make it to the courthouse door. It’s another to do a “docu-series.” If one is engaged in a newsworthy case, the former can’t be avoided, but nobody forces you to hop in the black car in your spare time to be a willing participant in entertainment.

In the scheme of journalism, the “no means no” expression of “off the record” is a critical mantra, generally respected as a matter of course. What would happen if someone reports “off the record” statements, or names the person to whom “not for attribution” statements were provided, isn’t exactly clear. These are journalistic tenets, not law.

This show, however, wasn’t journalism at all. It may seem to the viewer like journalism, as its subject matter is newsworthy, but it’s totally for entertainment. No doubt the producers will fight this fact with all their might, because it’s a “documentary” in serial form, but it’s substantively no different than if they used go-go dancers to get their audience. Their lofty purposes don’t change what they’re doing. They’re making a show they want tons of people to watch.

Poor Charles Peruto agreed to be a cast member. It’s unmentioned, but likely that he got nothing more than a bagel for his efforts, if that. What he would get, in exchange for his being there, was prominence. his face on TV, maybe even (dare I say it) celebrity. Instead, he got notoriety.

Some months earlier, Judge Genece Brinkley with the Philadelphia Court of Common Pleas Court had hired Peruto to help her fight criticism in connection to Mill, a rapper whom she sentenced to two to four years in prison for violating probation on a roughly decade-old gun and drug case.

Peruto had agreed to talk on-the-record for the 2019 docu-series, which is being produced for Amazon and Roc Nation, but says he asked filmmakers after the interview to turn cameras off.

It’s odd that a judge would retain counsel to “fight criticism,” but then, the judge was ripped to shreds for violating Meek Mill, even if for the wrong reasons. But appearing on a docu-series isn’t exactly “on the record,” as that phrase is understood by lawyers. The record is something we make in court. This was on the television, the record of the Court of Public Opinion.

“Unbeknownst to Peruto, the defendants’ personnel lied, and continued to use a device to intercept record the audio (and perhaps video) of the off the record conversation,” the complaint states.

They lied? In real court, lies might form the basis of perjury, or perhaps serve as the basis for a grievance for violating the Code of Professional Conduct. In the court of public opinion, lies are the stock in trade and there is no code and no professional conduct.

Though the complaint does not disclose what Peruto said off the record, the Philadelphia Inquirer reported on the audio this past July after it was leaked by an advocate for Mill.

The article quotes Peruto as saying that Brinkley should have immediately granted Mill a new trial after prosecutors requested it.

“She looks fucking awful,” Peruto said, according to the leaked audio.

This probably wasn’t a wise thing to say by someone engaged for the purpose of defending the judge against criticism. But then, he said it, they caught it on a hot mike and, shockingly, an “advocate for Mill” leaked it.

Pennsylvania, unlike some other states like New York, is a two-party wiretape state, meaning that both sides to a recording must consent. By capturing his words after he expressly withdrew consent for further recording, he may well have a cause of action against the production company, although that too is problematic.

Usually, the producers are a shell company, and the backers of the series, here Amazon Alternative and Roc Nation, have nothing to do with the actual production and may well not be liable for what these rotten, deceptive producers did by continuing to record after the interview was over. You can’t get blood from a rock, if not a Roc. And once the words are out, there’s no taking them back.

Should Peruto have taken the gig? Should he have exercised far greater circumspection in his “off the record” utterances about his client? The former question is a call shot. I’ve been asked to be a “cast member” in a plethora of criminal law docu-series, after the huge success of “Making A Murderer,” and generally declined. The one time I agreed turned out poorly.

But the idea that it was acceptable for him to spill his guts about his client, Judge Brinkley, whether on the record or off is a different matter. Client confidentiality isn’t a game we play for the cameras. Nor is our single-minded dedication to serve our client’s cause. Just because Peruto went “off the record” doesn’t mean it was acceptable to rat out his client. He burned his client.

That they lied and captured his words is a problem. That he compromised his client at all, however, can’t be blamed on anyone except himself. Was this because he wanted to be a star, as it certainly wasn’t to further his client’s interest by demeaning her to others, on air or off?

8 thoughts on “The Lure Of Cameras And The Hot Mike

      1. Hal

        Don’t blame you at all. I loved it. Reminded me of Roger Ebert’s description of an actress in B movies (blanking on her name) with very large natural breasts. He referred to her, IIRC, as “improbably constructed”.

  1. B. McLeod

    Lawyering in the press is probably a weasely business. It wouldn’t surprise me if he discussed this with Judge Brinkley, and told her, “Look, to establish credibility, I’m gonna have to acknowledge that your ruling sucked and you looked fucking awful, but I’ll do that ‘off the record.'”

    I have been told by some media acquaintances that “off the record” means different things to different “journalists.” Their “ethics” are not like our “ethics” in a number of respects, first among which is the utter absence of binding effect or enforcement. If a “journalist” can score with a viral scandal by disregarding “journalistic ethics,” expect it to occur. The real consequences (if any) will lie in the willingness of future sources to interact with that “journalist.” Anyone who reaches a point of zero trust with any source(s) can still hope to get a post writing columns for the NYT based on “anonymous” sources, or an “editorial” post at ABA Journal.

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