Pre-Trial Publicity, the First Amendment, and "The Fugitive" - Part Two, Gagging the Lawyers

Judge Walton's gag order in the Rogers Clemens perjury case directed the lawyers for the "parties and witnesses" to "refrain from making any further statements about this case to the media or in public settings outside the courtroom that are 'substantially likely to have a materially prejudicial effect' on this case. Gentile v. State Bar Nev., 501 U.S. 1030,1076 (1991)." By citing Gentile, Judge Walton raises the question of whether the lawyers needed to be covered by the gag order, because if they are licensed in a jurisdiction that has adopted ABA Model Rule of Professional Conduct 3.6, they already have an ethical obligation not to make any out of court statement that will have a "substantial likelihood of materially prejudicing an adjudicative proceeding."

I am very familiar with the Gentile case, as it was one of the cases where the ABA submitted an amicus brief while I was its General Counsel. Dominic Gentile was a Nevada lawyer who held a press conference the day after his client, Grady Sanders, was indicted for the theft of cocaine and money that was being used in an undercover operation. Mr. Gentile read from a prepared statement, and then responded to questions. The gist of Mr. Gentile's statements were that his client was being used as a scapegoat to try to cover up for police misconduct, since the person who most likely stole the drugs and money was a Las Vegas police detective.

Six months after his indictment, a jury acquitted Mr. Sanders of all charges. Subsequently, the State Bar of Nevada filed a complaint against Mr. Gentile, alleging that the statements he made during the press conference violated Nevada Supreme Court Rule 177, which prohibited Mr. Gentile from making out of court statements to the media that he knew or reasonably should have known would have a "substantial likelihood of materially prejudicing" Mr. Sanders' trial. The Southern Nevada Disciplinary Board found that Mr. Gentile violated Rule 177 and recommended that he be privately reprimanded. The Nevada Supreme Court affirmed, rejecting Mr. Gentile's argument that Rule 177 violated his right to free speech.

Nevada Supreme Court Rule 177 was identical to ABA Model Rule of Professional Conduct 3.6, which, at the time Gentile was decided, had been adopted - either verbatim or with insignificant variations, by 32 States. Therefore, when the case reached the United States Supreme Court, the ABA filed an amicus brief arguing that Rule 177 did not unconstitutionally infringe on Mr. Gentile's right to freedom of speech. Although a fractured Supreme Court reversed the judgment that Mr. Gentile had violated Rule 177, the Court did hold that the "substantial likelihood of material prejudice" standard did not violate the First Amendment:

The restraint on speech is narrowly tailored to achieve [the State's] objectives. The regulation of attorneys' speech is limited - it applies only to speech that is substantially likely to have a materially prejudicial effect; it is neutral as to points of view, applying equally to all attorneys participating in a pending case; and it merely postpones the attorneys' comments until after the trial. While supported by the substantial state interest in preventing prejudice to an adjudicative proceeding by those who have a duty to protect its integrity, the Rule is limited on its face to preventing only speech having a substantial likelihood of materially prejudicing that proceeding.

Gentile, 501 U.S. at 1076. Since the Supreme Court decided that lawyers can be disciplined for making out of court statements that are "substantially likely to have a materially prejudicial effect," one wonders whether it was necessary for Judge Walton to cover the lawyers in his gag order. Considering that Judge Walton's order provides that "[f]urther action in violation of this admonition will be confronted with the full authority of the Court," it appears that he wanted to make the lawyers subject to the court's contempt powers in addition to any possible disciplinary proceeding.

Notwithstanding the Supreme Court's decision on the First Amendment issue, a majority of the Justices agreed with the following statement of Justice Kennedy, wherein he concluded that sometimes a lawyer is obligated to advocate for the 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.

Gentile, 501 U.S. at 1043. In consideration of Justice Kennedy's statement, the ABA amended Model Rule 3.6 to add the following provision:

(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

Pre-Trial Publicity, the First Amendment, and "The Fugitive" - Part One, Gagging the Parties and Controlling the Media

In this post from last week, I wrote about the order entered by U.S. District Court Judge Reggie Walton in the Rogers Clemens perjury case prohibiting Clemens, potential witnesses and lawyers "from making any future statements about this case to the media or in a public setting outside the courtroom." An order prohibiting participants in a case from commenting to reporters or the public infringes on the First Amendment rights of the individuals gagged. Gag orders also interfere with the media's efforts to gather and disseminate news, again implicating the First Amendment. What interests are being served by this use of judicial power to curtail First Amendment rights?

Judges justify gag orders as necessary to protect a person's right to a fair trial, the fair administration of justice, or the sanctity of jury deliberations. The power to gag trial participants comes from the Fifth and Sixth Amendments as interpreted by the Supreme Court in the case of Sheppard v. Maxwell, 384 U.S. 333 (1966), otherwise known as the Sam Sheppard murder case.

It has long been surmised that the television drama "The Fugitive" was loosely based on the Sam Sheppard murder case. Dr. Sheppard's pregnant wife, Marilyn, was bludgeoned to death in the upstairs bedroom of their Ohio home in the early morning hours of July 4, 1954. Dr. Sheppard testified that he had fallen asleep downstairs, and was awaken by a cry from his wife. He rushed upstairs and encountered "a bushy-haired man" standing over his wife's bed. Sheppard struggled with the intruder, who knocked him unconscious. When he regained consciousness, he went downstairs to investigate a noise, and again encountered the intruder. Dr. Sheppard chased the intruder out of the house, struggled with him again, and was again knocked unconscious.

After an investigation, indictment, and nine week trial that ended in December 1954, Dr. Sheppard was convicted of murdering his wife. His case came before the Supreme Court on a federal habeas petition raising the issue of whether Dr. Sheppard had been deprived of a fair trial because of the trial judge's failure to protect him sufficiently from the "massive, pervasive and prejudicial publicity that attended his prosecution."

The Court's decision in Sheppard v. Maxwell is fascinating reading, describing in detail not only the extent of the pre-trial publicity, but how at trial the courtroom was taken over by the media and the jurors turned into media stars. In addition, the trial was apparently the first time that a helicopter was used to gather news. The jury visited the Sheppard house on the first day of trial. The time of the visit was revealed so far in advance that one of the newspapers was able to rent a helicopter and fly over the house taking pictures of the jurors on their tour.

Not surprisingly, the Supreme Court granted Dr. Sheppard's habeas petition, concluding that he did not receive a fair trial consistent with due process. The Court admonished the trial judge for not responding forcefully to the pre-trial publicity about the case:

[T]he court should have made some effort to control the release of leads, information, and gossip to the press by police officers, witnesses, and the counsel for both sides. Much of the information thus disclosed was inaccurate, leading to groundless rumors and confusion. . . . Under such circumstances, the judge should have at least warned the newspapers to check the accuracy of their accounts. And it is obvious that the judge should have further sought to alleviate this problem by imposing control over the statements made to the news media by counsel, witnesses, and especially the Coroner and police officers. The prosecution repeatedly made evidence available to the news media which was never offered in the trial. Much of the "evidence" disseminated in this fashion was clearly inadmissible. The exclusion of such evidence in court is rendered meaningless when news media make it available to the public. . . . The fact that many of the prejudicial news items can be traced to the prosecution, as well as the defense, aggravates the judge's failure to take any action. . . . Effective control of these sources—concededly within the court's power—might well have prevented the divulgence of inaccurate information, rumors, and accusations that made up much of the inflammatory publicity, at least after Sheppard's indictment.

Having concluded that "the court's fundamental error is compounded by the holding that it lacked power to control the publicity about the trial," the Court specifically set forth the ways in which the trial court could have controlled potentially prejudicial publicity:

More specifically, the trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters, such as the refusal of Sheppard to submit to interrogation or take any lie detector tests; any statement made by Sheppard to officials; the identity of prospective witnesses or their probable testimony; any belief in guilt or innocence; or like statements concerning the merits of the case. . . . Being advised of the great public interest in the case, the mass coverage of the press, and the potential prejudicial impact of publicity, the court could also have requested the appropriate city and county officials to promulgate a regulation with respect to dissemination of information about the case by their employees. In addition, reporters who wrote or broadcast prejudicial stories, could have been warned as to the impropriety of publishing material not introduced in the proceedings. . . . Had the judge, the other officers of the court, and the police placed the interest of justice first, the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom—not pieced together from extrajudicial statements.

There is an old legal adage that "hard cases make bad law." The "carnival atmosphere" that surrounded the Sam Sheppard murder case, and the fact that the trial court judge not only did little to curb it, but in some instances facilitated it, may have led to the Supreme Court's conclusion that trial court judges must use "strong measures" to ensure that the accused receives a trial "free from outside influences." Absent the circumstances in this case, it is difficult to reconcile the Supreme Court's statements that the judge "should have at least warned the newspapers to check the accuracy of their accounts," that "reporters who wrote or broadcast prejudicial stories could have been warned as to the impropriety of publishing material not introduced in the proceedings," and that "the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom" with the freedom of the press guaranteed by the First Amendment.