Free Speech v. Fair Trial
By
William J. Wernz, Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (October
1991)
For over 25 years bar
groups and various courts have attempted to balance the rights of free speech
and fair trial. In the wake of recent
criminal cases that have become media events, particularly that involving
William Kennedy Smith, the issues have been debated again. Looking particularly at the conduct of
defense counsel, the United States Supreme Court recently struggled to
illuminate these issues.
Gentile v. State
Bar of Nevada, decided June 27 by the
U.S. Supreme Court, reversed a disciplinary reprimand given for prejudicial
pretrial statements. However, the 5-4
reversal was on narrow grounds; and the justice who sided with four others on
the decision joined with the other four judges on most of the legal principles
involved. The Court was deeply divided
on both the case before it and on the general approach it should take to questions
of attorney free speech.
Before attorney
Dominic Gentile’s client Grady Sanders was indicted, there was a good deal of
publicity in Las Vegas about how four kilograms of cocaine and $300,000 came to
be missing from a vault used by police in undercover operations. Sanders owned the vault company. The sheriff publicly reporting the theft
named police and vault company employees as suspects. At least 17 articles in the local papers followed, including a
story that the police suspects had passed lie detector tests.
When Sanders was
indicted, the prosecutor was quoted as saying that the indictment was
legitimate. Gentile called a news
conference. He read a prepared
statement, including:
When this case goes to trial, … you’re going to see
that the evidence will prove not only that Grady Sanders is an innocent person
… but that the person that was in the most direct position to have stolen the
drugs and money … is Detective Steve Scholl.
I
feel that Grady Sanders is being used as a scapegoat.
With
respect to these other charges … the so-called other victims … four of them are
known drug dealers and convicted money launderers … .
Citing ethics
restrictions, Gentile then answered only a few press questions. He did manage to say, “I know I represent an
innocent man.” Gentile also referred to
a previous charge,” … and I told you that the case would be dismissed and it
was.”
Six months later
Sanders was acquitted by a jury. The
State Bar of Nevada then alleged that Gentile had violated its discipline rule.
The Nevada rule is almost identical to
ABA Model Rule of Professional Conduct 3.6, and similar rules are used in most
states. Gentile was privately
reprimanded, with findings that several of his statements violated the
Nevada/ABA rule by having “a substantial likelihood of materially prejudicing
an adjudicative proceeding.”Ftn 1 The offending statements were to the effect
that:
•
The evidence demonstrated the client’s innocence;
•
The likely thief was a police detective;
•
The other alleged victims were not credible.
The Nevada Supreme
Court affirmed the reprimand, but on a 5-4 vote the U.S. Supreme Court
reversed.
The Court’s opinion is
a patchwork stitched together by Justice O’Connor’s joining portions of the
decisional opinion of Justice Kennedy and three others, and joining the opinion
of Chief Justice Rehnquist and three others for general statements about
lawyers and free speech. Left in limbo
were the portions of the Kennedy opinion which O’Connor neither joined nor rejected.
The Kennedy portion of
the majority opinion reversed the reprimand, on the grounds that a portion of
the Nevada/ABA disciplinary rule is unconstitutionally void for vagueness. The unconstitutional provision was that
“notwithstanding” the section of the rule that prohibited statements which were
likely to prejudice a trial, “a lawyer involved in the matter may state without
elaboration: (a) the general nature of the claim or defense;” [and certain
other matters]. The majority held that
this language “creates a trap for the wary as well as the unwary.” The Court worried that such regulation of
speech would risk discriminatory enforcement, particularly against “the
criminal defense bar, which has the professional mission to challenge actions
of the State.”
Justice O’Connor
joined the Rehnquist foursome in stating general principles of First Amendment
law as applied to attorneys in legal proceedings. This majority concluded that:
The speech of lawyers representing clients in pending
cases may be regulated under a less demanding standard than that established
for regulation of the press . . . .
The Kennedy four
argued that the majority too greatly restricted First Amendment liberties of
attorneys, particularly of criminal defense attorneys. Since Gentile’s reprimand was reversed on
other grounds, and because Justice Kennedy believed Gentile’s remarks clearly
were not prejudicial, he concluded that “the outer limits under the
Constitution of a court’s ability to regulate an attorney’s statements” should
not be explored further in Gentile.
Justice Kennedy also argued that Gentile was unlike the attorney
advertising/free speech line of cases because “one central point must dominate
the analysis: this case involved classic political speech … At issue here is
the constitutionality of a ban on political speech critical of the government
and its officials.”
Were Gentile’s
comments apt to have prejudiced the proceeding against his client? Four justices said “yes,” four said “no,”
and Justice O’Connor did not say.
Those who found prejudice unlikely from Gentile’s remarks emphasized the
lengthy time before the scheduled trial, the population of the area, and a
legitimate need to protect the client’s business reputation. The justices who found prejudice emphasized
deference to the Nevada findings and Gentile’s admission that he called a press
conference for the express purpose of influencing the venire. The Kennedy Four countered that influencing
the venire was not illegitimate when the purpose was not to prejudice but only
“to counter [pro-prosecution] publicity already deemed prejudicial.”
The rule would have
been found constitutional if ― as in Minnesota ― it had merely
prohibited public statements that would be apt to materially prejudice a
proceeding.Ftn 2 The whole Court rejected the argument that a
“clear and present danger” test was required, rather than a “substantial
likelihood of material prejudice” standard, as embodied in Rule 3.6 of the ABA,
Nevada (and Minnesota) Rules of Professional Conduct.
Minnesota has been
more successful than the ABA and some other states in fitting its disciplinary
rules and cases to the demands of the First Amendment. In a few recent Minnesota discipline cases,
including First Amendment challenges and one case involving speech critical of
government officials, the U.S. Supreme Court has declined review.
What may a criminal
defense attorney say about a client’s alleged innocence? The Nevada discipline guideline was that
statements likely to materially prejudice a trial included “any opinion as to
the guilt or innocence of a defendant . …”
Former Minnesota DR 7-107(B)(6) made such a statement subject to
discipline in Minnesota until 1985. The
lineage of the rule traces at least to Sheppard v. Maxwell, 384 U.S. at
333 (1966), the case that first brought fair trial vs. free expression issues
to a head. The Rehnquist dissent in Gentile
indicated that this rule did not violate the First Amendment. The Kennedy opinion did not explicitly
address the issue, but clearly enough hinted “that blanket rules restricting
speech of defense attorneys should not be accepted without careful First
Amendment scrutiny.” Justice O’Connor
did not address the issue.
Gentile did not state clearly whether a defendant’s attorney
may proclaim the client’s innocence to the media without acting
unprofessionally. If the accused is
presumed innocent, counsel should be able to proclaim that innocence. The maxim that cases should be tried in the
courts and not in the press is a good general principle, but would not be a
sufficient argument against freedom to declare to the public a client’s
innocence.
It may well be that Gentile
did not discuss this issue more because it was not clearly before the
Court. Gentile’s reprimand was based in
part on his stating his client’s innocence; but the Nevada Supreme Court’s
affirmance of the reprimand made no mention of this rule violation. It may also be that Gentile’s claiming, “I
know” of the client’s innocence was the statement of opinion that was seen as a
rule violation. A Minnesota attorney
who claimed of his “certain knowledge” of a judicial conspiracy against him,
was also disciplined. In re Graham, 453
N.W.2d 313, 318 (Minn. 1990).
Gentile was debated in broad terms and decided on narrow
grounds. The decision was made on what
appears to have been a quirk in the disciplinary rule. The majority’s statement of general
principles suggests that under a more tightly drawn rule, discipline for
prejudicial pretrial speech would be upheld in the future. The majority also clearly indicated that the
free speech rights of attorneys participating in litigation may
constitutionally be circumscribed somewhat more closely than those of the press
and the public generally.
NOTES