TCDLA Texas Criminal Law Short Course - Voice For The Defense ...

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persons other than trial participants, such as members of the news media, may be brought under the court's power to help the eourt determine who has violated a gag order.26S If those persons decline to COOperate, they may be held in contempt of court, finrd, andeven sentenced to jail. 2. Prejudicial Extrajudicial Statements in the Absence of a Gag Order. Another question which arises is, what steps may be taken against the attorney who makes prejudicial statements to the media in a criminal investigation or a criminal trial when there is no gag order? The answer lies in bringing disciplinary proceedings under DR 7-107. A number of such proceedings have been brought against attorneys for their extrajudicial comments; however, most of the major cases brought under DR 7-107 or its predecessor, Canon 20, were reversed on appeaI. Nonetheless, disciplinary proceedings do remain an option when an attorney involved in a criminal case makes prejudicial statements to the news media. In the two New Jersey cases discussed earlier, In re Hinds27o and In re R~chrniel,~7' the New Jersey Supreme Court declined to find the attorneys in violation of DR 7-107, because that court had never decided that attorneys "associated with the case" could be held in vioiation of the rule, and because the court had never announced its guidelines for when there is a reasonable likelihood that an extrajndicial statement will interfere with a fair triaL2" However, both decisions indicated that in the future, similar violations would properly invoke the disciplinary rule.273 In In re Keller,274 the Montana Supreme Court reviewed disciplinary proceedings brought against an attorney representing a dentist charged with sexual assault. While the case was pending, the attorney had written a letter to thedentist's patients and friends, attacking the credibility of the State's case and presenting the merits of the defen~e.2'~ An excerpt from the letter reads as follows: The media has been merciless to Jim Paisley . . . in fact, 'xivage' would be a more accurate description. This is not uncommon, but whether I like it or not, I'm accustomed to it. Jim is not. He penned a press release, to give his side of the story, hut I advised e m that it would he an exercise in futility. I told him that if he wanted to do anything, an explanation should be given to his friends and patients, for they've stood by him, and there are too many to explain the situation to individually. The purpose of this letter is to help keep open the minds of the people whom he cares about amidst the flurry of onesided reporting and rumors. As such, I'm writing this letter to you, with the intention of reproducing it, and having Jim put in the addresses and names.276 The rest of the letter gave a detailed description of the weaknesses in the State's case and the merits of the defense. The Commission on practice, an arm of the Montana Supreme Court charged with investigating and hearing ethical complaints against lawyers practicing in Montana, filed a complaint against Keller, charging him with violating, among other things, DR 7-107(B).277 Keller defended on the ground that the rule was unconstitutionally broad and that it violated his rights to free speech. In considering Keller's case, the Montana Supreme Court held that, because DR 7-l07(B) does not expressly include a "clear standard by which attorneys can gauge their conduct," it is an unconstitutional abridgement of free speech.278 The court noted that other courts have recognized three different standards by which First Amendment rights may be abrogated under these circumstances: the reasonable likelihood standard, the clear and present danger standard, and the serious and imminent threat ~tandard.~7~ The Montana court declined to read into DR7-107 an implied standard, and accordingly held the rule was void, and dismissed the complaint against Keller.280 However, even though the Keller case did not result in disciplinary action, it does illustrateaction that can be taken against an attorney who makes extrajudicial, prejudicial statements about a criminal trial in the absence of a gag order. Other courts which recognize the validity of DR 7-107(B) and include an implicit constitutional standard within the role would probably have disciplined Keller for his conduct. 1V. CONCLUSION. From a review of the case law in this area, it becomes clear that an attorney or a court faced with a great deal of prejudicial publicity in a criminal trial need not stand by and watch the opportunity for a fair trial disappear. Gag orders may be obtained when the attorney makes a proper and professional showing of the threatening publicity and narrowly tailors the order so that it does not infringe upon the First Amendment rights of trial participants. When gag orders are violated, the trial court has the power to punish the offenders, and the power to find out who the offenders were. Even in the absence of a gag order, disciplinary proceedings may be brought against attorneys who violate DR7-107 by making prejudicial statements to the media. With these tools available, persons charged with even the most sensational crimes may be able to receive a fair trial, untainted by rampant and uncontrollable publicity. DR 7-107 APPENDIX A Trial Publicity (A) A lawyer participating in or associated with the investigation of a criminal matter shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that doesmore than state without elaboration: (1) Information contained in a public record. (2) That the investigation is in progress. (3) The general scope of the investigation including a description of the offense and, if permitted by law, the identity of the victim. (4) A request for assistance in apprehending a suspect or assistance in other matters and the information necessary thereto. (5) A warning to the public of any dangers. (B) A lawyer or law firm associated with the prosecution or defense of a criminal matter shall not, from the time of the filing of a complaint, information, or in- 16 VOICE for the Defense ! September 1988
dictment, the issuance of an arrest warrant, or arrest until the connnencement of the trial or disposition without trial, make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to: (1) The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the accused. (2) The possibility of a plea of guilty to the offense charged or to a lesser offense. (3) The existence or contents of any confession, admission, or statement given by the accused or his refusal or failure to make a statement. (4) The performance or results of any examinations or tests or the refnsal or failure of the accused to submit to examinations or tests. (5) The identity, testimony, or credibility of a prospective witness. (6) Any opinion as to the guilt or innocence of the accused, the ev~dence, or the merits of the case. (C) DR 7-107(B) does not preclude a lawyer during such period from announcing: (I) The name, age, residence, occupation, and family status of the accused. (2) If the accused has not been apprehended, any information necessary to aid in his apprehension or to warn the public of any dangers he may present. (3) A request for assistance in obtaining evidence. (4) The identity of the victim of the crime. (3) The fact, time, and place of arrest, resistance, pursuit, and use of weapons. (6) The identity of investigating and arresting officers or agencies and the length of the investigation. (7) At the time of seizure, a description of the physical evidence seized, other than a confession, admission, or statement. @) The nature, substance, or text of the charge. (9) Quotat~ons from or references to public records of the court in the case. (10) The scheduling or result of any step in the judicial proceedings. (1 1) That the accused denies the charges made against him. (D) After the completion of a trial or disposition without trial of a criminal matter and prior to the imposition of sentence, a lawyer or law firm associated with the prosecution or defense shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by public communication and that is reasonably likely to affect the imposition of sentence. APPENDIX B Gag Order From Pwple v. Dupree, 388 N.Y.S.2d 203 (N.Y.S. Ct. 1976). It is the order of this Court that no party to this action, nor any attorney connected with this case as defense counsel or prosecutor, nor any other attorney, nor any judicial officer or employee, nor any member of the Police Department, nor any agent, deputy or employee of such person, nor any grand juror or juror, nor any witness having appeared before the Grand Jury or before the trial jury, nor any person subpoenaed to appear at the trial of this action, shall release or authorize the release for public dissemination of any purported extrajudicial statement of the defendant or of witnesses relating to this case, nor shall any such person release or authorize the release of any documents, exhibits or any other evidence which has not been received in evidence in this case, nor shall any such person express, except as reauired to do so in Court. anv ooinion or mike any comment for p"blk dkussion as to the weight, value, effect or comparison of evidence; nor shall any such person make any statements unless re quired to in Court as to the nature, substance, or effect of any testimony that has been given. Nor shall any such person make any statement as to the identity of any prospective witness, or his probable testimony, or the effect thereof. Nor shall any person make any out-of-court statement as to the nature, source or effect of any purported evidence alleged to have been accumulated as the result of the investigation of this matter. Nor shall any such person make any statement as to the content, nature, substance, or effect of any testimony which may be given in any proceeding related to this case except that a witness may discuss any matter with an attorney of record or agent thereof. This order does not limit any such persons from stating the following: 1. A factual statement of the defendant's name or names, age or residence. 2. The time and place of the arrest, the identity of the arresting and investigating officers and agencies and the length of the investigation. 3. The text of the charges, including a brief description of the offenses charged. 4. Exact quotations from or reference to, without comment, any evidence given to the trial jury in this case. 5. The scheduling and result of any stage of the judicial proceeding held in open court before the jury or in a public session. 6. A request for assistance in obtaining evidence, or the names of possible witnesses. 7. Any information as to any person not in custody who is sought as a possible suspect or witness, or any statement aimed at warning to the public of any possible danger either to, or from such person not in custody. This order does not prohibit any such person from showing to anyone else any exhibit which has been unconditionally received in evidence in this case, hut does not require that person show that exhibit upon any request. This order does not preclude any such person from discussing any matter in this case with any other such person, or with Classified Ads Classified Adverlising MUST: Be typed. Be worded as it should appear. Include the number of consecutive issues it is to appear. Be prepaid. Wake checks payable to Artforms, 1°C) Be received by the 15th of the month preceding date of publication. Classified ads areSt5.00 far thefint 25 words and 5OC lor every word over 25. Advertising copy should be submitted to ARTFORMS, 6201 Ouadalupe. Auslin, TX 78752. Tel. (512) 451-3588. Acceptance of classified advertising for publicatron in the VOICEfor the Dejwedoes not imply approval or endorwnent of any product, servlce, or representation by either the VOICEflr the De/pwre or the TCDLA No refunds od cancelled ads. September 1988 / VOICE for the Defense 17
Page 1 and 2: UPCOMING TCDLA Texas Criminal Law S
Page 3 and 4: SEPTEMBER 1988 CONTGNTS VOL. 18, NO
Page 5 and 6: Editor's Column District Court Rule
Page 7: Assistant U.S. Attorney, came over
Page 10 and 11: The Top Ten Most Common Areas of Im
Page 12 and 13: 7. ALLUDING TO THE LAW OF PAROLE Ev
Page 14 and 15: Gag Orders: Controlling Publicity i
Page 18 and 19: . ~ ~~~~~~~.~ ~ , any potential wit
Page 20 and 21: pellate finding of insufficiency of
Page 22 and 23: App. 1986) and Ex pane Bracelet, 70
Page 24 and 25: View from the Bench Indigent Repres
Page 26 and 27: White Collar Defense The Money Laun
Page 28 and 29: Reporting has drastically improved
Page 30 and 31: c. The value of the criminally deri
Page 32: Violations of the Money Jiundering
Page 35 and 36: now is the time to lease rather tha
Page 37 and 38: New Publications by Don Adurns 1987
Page 39 and 40: DWI Practice Gems Correction by J.
Page 41 and 42: appellate court determines beyond a
Page 43 and 44: TCDLA Committee Update by Jeffrey H

TCDLA Texas Criminal Law Short Course - Voice For The Defense ...

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