Barry Tarlow is a nationally prominent criminal defense lawyer practicing in Los Angeles, CA. He is a frequent author
and lecturer on criminal law. He was formerly a prosecutor in the United States Attorney's Office and is a member of
The Champion Advisory Board.
The author wishes to thank Kevin Jon Heller and Blair Berk, members of his firm, for their invaluable assistance
in the preparation of this column.
Yet again, a case involving a member of the Gotti family has raised a legal issue relevant to defendants throughout the country. This time, however, the case does not involve informants, wiretapping, or allegations of in-house lawyers. Instead, the case deals with the relatively more mundane, though no less important, issue of whether RICO's forfeiture provisions allow the pre-trial restraint of substitute assets when assets directly linked to racketeering activity are unavailable for forfeiture. See RICO Report, The Champion (July 1995 and September/October 1993) (discussing previous cases involving forfeiture of substitute assets). In a well-reasoned opinion, Judge Barrington Parker of the Southern District of New York recently held that they do not. United States v. Gotti, __ F. Supp. __ 1998 WL 11631 (S.D.N.Y. 1998).
On January 20, 1998, John Gotti Jr. and 22 other defendants, including Salvatore LoCascio, son of John Gotti Sr.'s co-defendant Frank LoCascio, and the former baseball star Dennis McLain, were charged in a 60-count indictment with violations of RICO, 18 U.S.C. 1961 et seq. The indictment alleges that the defendants, as participants in a criminal enterprise known as the Gambino Crime Family, engaged in extortion, fraud, loansharking, money laundering, obstruction of justice, and illegal gambling.
The indictment seeks the forfeiture, under 18 U.S.C. 1963, of assets linked to the defendants' racketeering activities, including the cash proceeds of those activities. The indictment alleges that the racketeering activities generated as much as $20 million in cash, much of which, though directly forfeitable, is not available for forfeiture. As a result, the indictment contemplates the forfeiture, pursuant to Section 1963(m), of substitute assets possessed by the defendants if the directly forfeitable assets, including cash proceeds, are unavailable for forfeiture at the time of judgment.
The same day that Gotti Jr. and his co-defendants were indicted, Judge Charles Brieant, of the Southern District of New York, issued a post-indictment restraining order pursuant to 18 U.S.C. 1963(d)(1)(A) and 18 U.S.C. 982(b)(1)(A), prohibiting the transfer or dissipation without government approval of various assets of 19 of the defendants that would be forfeitable upon conviction, including "substitute assets" that would be forfeitable only to the extent directly forfeitable assets, such as cash proceeds, are not available. The substitute assets covered by the restraining order include parcels of real property, bank accounts, automobiles, and corporate interests held by the defendants.
The defendants challenged Judge Brieant's restraining order, arguing that neither the RICO forfeiture provision, Section 1963(a), nor the general criminal forfeiture provision, Section 982 -- both of which have the same statutory language -- permit the pre-trial restraint of substitute assets.
Judge Parker agreed. He began by noting that the issue involves the interplay of three subsections of Section 1963. The first subsection, 1963(a), provides for the forfeiture of assets that are linked, directly or indirectly, to the racketeering enterprise. The second subsection, 1963(m), provides that to the extent assets linked to a defendant's racketeering activity are unavailable for post-trial forfeiture, other assets of the defendant -- substitute assets -- may then be forfeited in an amount up to the value of the directly forfeitable assets. And the third subsection, 1963(d)(1), empowers a court to "enter a restraining order or injunction . . . to preserve the availability of property described in subsection (a) for forfeiture under this Section."
Given the unambiguous language of the three subsections, Judge Parker had no difficulty concluding that Section 1963 does not permit a court to restrain substitute assets:
Subsection 1963(d)(1), by its explicit terms, authorizes a restraining order applicable to directly forfeitable assets linked to racketeering activity (i.e., subsection (a) assets) but not substitute assets (i.e., subSection (m) assets). Thus, 1963 does not, on its face, authorize a restraint of substitute assets.
Id. at __.
Judge Parker then considered and rejected two prosecution objections to his text-based analysis. To begin with, the prosecution argued that the Second Circuit's opinion in United States v. Regan, 858 F.2d 115 (2d Cir. 1988) -- the Princeton/Newport case -- expressly authorizes pre-trial restraint of substitute assets. Judge Parker acknowledged that the Regan court stated that "restraining orders, when entered before forfeiture, should be concerned with preserving assets equivalent in value to the potentially forfeitable property, and not necessarily the precise property." Id. at 121. He pointed out, though, that the Regan court did not hold that Section 1963 authorizes pre-trial restraint of substitute assets in all situations, but held only that "where the nature of the defendants' forfeitable property makes the imposition of a restraining order burdensome on third parties, the district court should, as an alternative, restrain assets of the defendant equal in value to that of the unrestrained forfeitable property." Id. (emphasis added). In Judge Parker's view, therefore, Regan applies only when the defendants' directly forfeitable assets are commingled with the assets of unindicted third parties; it does not apply in the far more common situation, such as in Gotti, in which the defendants' directly forfeitable assets are owned solely by the defendants themselves. Gotti, __ F. Supp. at __.
Having lost its Regan argument, the prosecution then argued that the legislative history and "broad remedial purpose" of Section 1963's forfeiture provisions support pre-trial restraint of substitute assets. Judge Parker agreed that "[t]he government might be better able to preserve assets if 1963 authorized the pre-trial restraint of substitute assets." Id. at __. Nevertheless, he rejected the prosecution's argument: noting that "a plethora of decisions teaches that resort to secondary or tertiary sources is unwarranted where, as here, the plain language of the statute is unambiguous," id. at __ (citing Salinas v. United States, 118 S. Ct. 469 (1997)), The judge pointed out that allowing such pre-trial restraint "is not the policy that Congress has embraced, as evidenced by the language it chose to use." Id.
With the exception of the Fourth Circuit, every circuit that has considered the issue of whether Section 1963 and Section 982 permit pre-trial restraint of substitute assets -- the Third, the Fifth, the Eighth, and the Ninth -- has reached the same conclusion that Judge Parker reached in Gotti. See In re Assets of Martin, 1 F.3d 1351 (3d Cir. 1993); United States v. Floyd, 992 F.2d 498 (5th Cir. 1993); United States v. Riley, 78 F.3d 367 (8th Cir. 1996); United States v. Ripinsky, 20 F.3d 359 (9th Cir. 1994). Each of those decisions, moreover, relied on the unambiguous statutory language of Sections 1963 and 982 to conclude that pre-trial restraint of substitute assets is not permitted. See Martin, 1 F.3d at 1359; Floyd, 992 F.2d at 502; Riley, 78 F.3d at 371; Ripinsky, 20 F.3d at 363.
The Fourth Circuit, however, reached the opposite conclusion in In re Billman, 915 F.2d 916 (4th Cir. 1990). The Billman court held that the section must be read to permit pre-trial restraint of substitutes, because any other reading of the section would "permit a defendant to thwart the operation of forfeiture laws by absconding with RICO proceeds and then transferring his substitute assets to a third person who does not qualify as a bona fide purchaser for value." Id. at 921. The court acknowledged that its holding explicitly contradicted the unambiguous statutory language of Section 1963; it insisted, however, that "[l]iberal construction of 1963 requires reading its several subsections together, rather than in isolation, to achieve the congressional purpose of pretrial restraint." Id.
The Fourth Circuit's holding in Billman is completely unpersuasive. Even if the Billman court is right to assume that Congress' purpose in passing its various forfeiture laws was to permit pre-trial restraint, the fact remains that, as written, 18 U.S.C. 1963 and 18 U.S.C. 982 do not permit the pre-trial restraint of substitute assets. Every other circuit has correctly held that the statutory language of the sections means exactly what it says. For the Fourth Circuit to hold otherwise is judicial activism at its worst.
Latest Battles Over Lawyers' Right To Speak Out Whether, and to what extent, states and courts can limit the right of lawyers to make extrajudicial comments about the merits of their cases and about the performance of judicial officers is a continuing source of controversy in our criminal justice system. The impetus for that controversy is not difficult to understand: because lawyers are privy to a great deal of important, non-public information about cases and judicial officers, their right to disseminate that information is simultaneously both necessary to and threatening of the fair administration of justice.
On the one hand, "the knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power. . . . Without publicity, all other checks are insufficient." In re Oliver, 333 U.S. 257, 270-71 (1948). However, "trials are not like elections, to be won through the use of the meeting hall, the radio, and the newspaper," Bridges v. California, 314 U.S. 252, 271 (1941); "the theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print." Patterson v. Colorado, 205 U.S. 454, 462 (1907).
Extrajudicial Statements About Pending Cases
Almost all federal district courts have local rules prohibiting lawyers from discussing the merits of pending criminal cases with the press if doing so would interfere with a trial or the administration of justice. The United States District Court for the Eastern District of Virginia is one of those courts; its Local Rule 57 provides, in relevant part:In connection with pending or imminent criminal litigation with which a lawyer or a law firm is associated, it is the duty of that lawyer or firm not to release or authorize the release of that information or opinion (1) if a reasonable person would expect such information or opinion to be further disseminated by any means of public communication, and (2) if there is a reasonable likelihood that such dissemination would interfere with a fair trial or otherwise prejudice the due administration of justice.
The rule, moreover, specifically prohibits six categories of speech: concerning the defendant's prior criminal record; the existence or contents of any confession, admission, or statement by the defendant; the performance of any examination of or test on the defendant; the identity, testimony, or credibility of prospective witnesses; the possibility of a plea of guilty; and any opinion as to the defendant's guilt or innocence. Local Rule 57(C).
Joseph Morrissey, a Richmond, Virginia, criminal defense attorney, recently challenged the constitutionality of Local Rule 57 after he was convicted of two counts of criminal contempt for "willfully, intentionally, and contumaciously violating" the rule. In re Joseph D. Morrissey, ___ F. Supp. ___, 1998 WL 111334 (E.D. Va. 1998). His challenge failed.
In January 1997, Morrissey began representing Joel W. Harris, who had been indicted by a Virginia grand jury on drug distribution charges. Because Harris had been active in state and local politics, his indictment received substantial attention from the press, creating what the district court called a "circus-like atmosphere" around the case. Id. at __.
After the state proceedings became embroiled in a number of well-publicized accusations concerning the political motivations of the trial lawyers and local law enforcement officials, the federal government took over the investigation into Harris' activities. Morrissey, however, continued to investigate the still-pending state charges. As part of that investigation, he conducted a videotaped interview of John Buerkley, who had testified against Harris before the state grand jury. During the interview, Buerkley recanted some of his grand jury testimony. Id. at __.
Two days later, February 4, a federal grand jury indicted Harris for distributing drugs. The indictment, which contained allegations that Harris had been exchanging drugs for both heterosexual and homosexual favors, further fanned the press's interest in the case. Because Morrissey had made numerous statements to the press concerning the merits of Harris' state case, the lead federal prosecutor, James B. Comey, provided Morrissey with a copy of Local Rule 57, along with the federal indictment. Id. at __.
The next day, Morrissey learned from Buerkley's counsel, Augustus S. Hydrick, that Buerkley would be a witness in the federal case. On February 7, the state prosecutor dismissed all of the charges against Harris. Id. at __. On February 10, AUSA Comey informed Hydrick that he intended to call Buerkley despite his recent recantation of his testimony before the state grand jury. Id. at __.
On February 11, Hydrick learned that Morrissey had scheduled a press conference for later that day, during which he intended to show the videotaped interview with Buerkley. Hydrick implored Morrissey to cancel the press conference, but Morrissey refused, stating that playing the videotape was necessary to "send a message to other witnesses." Hydrick then informed AUSA Comey of Morrissey's statement; Comey responded by faxing a letter to Morrissey reminding him of Local Rule 57. Id. at __.
Undeterred, Morrissey held the press conference and played the videotape to the press. Shortly thereafter, he responded to AUSA Comey's fax with a fax of his own. Morrissey defended his actions by stating -- obviously falsely -- that the press conference concerned only the state case against Harris, and that he, Morrissey, had "not commented on any witness known to be called" in the federal trial. Id. at __.
On February 12, Judge James R. Spencer, the presiding judge in United States v. Harris, issued a Show Cause order charging Morrissey with violating Local Rule 57. Id. at __.
On April 1, two weeks prior to trial, Morrissey gave an interview to a newspaper reporter. During that interview, he said that "the charges [against Harris] never should have been filed," and that "if the charges had come up when he headed the prosecutor's office, we would have laughed it out of court." Id. at __. On April 9, Judge Spencer issued another Show Cause order charging Morrissey with violating Local Rule 57. Id. at __.
After a bench trial, Morrissey was convicted on two counts of contempt of court. Morrissey immediately appealed his convictions, arguing that Local Rule 57 violated the First Amendment. In particular, he argued that the "reasonable likelihood" standard of the rule violated Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), in which a plurality of the Supreme Court held constitutional a disciplinary rule prohibiting extrajudicial statements by lawyers that presented a "substantial likelihood" of materially prejudicing an adjudicative proceeding, but concluded that Dominic Gentile could not be punished for his statements to the press because Nevada's disciplinary rule was unconstitutionally vague. Id. at 1034.
The district court rejected this argument and held that the "reasonable likelihood" standard was constitutional. First, the court noted that, prior to Gentile, the Fourth Circuit approved a disciplinary rule substantially identical to Local Rule 57, holding that "no heavier or stiffer standard than the reasonable likelihood test is needed to protect [lawyers] from disciplinary sanctions for speech for publication without adequate notice of the consequences." Hirschkop v. Snead, 594 F.2d 356, 369 (4th Cir. 1979).
Second, the court concluded that although the plurality opinion in Gentile did specifically state that the "substantial likelihood of material prejudice standard constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State's interest in fair trials," Gentile, 501 U.S. at 1075 n.7, "when measured against the reasoning upon which Gentile was decided, Local Rule 57(C) also passes constitutional muster." Morrissey, __ F. Supp. at __. To begin with, the rule's restrictions are both "narrow and necessary," given that it only prohibits those categories of speech that the Supreme Court said in Gentile are particularly likely to materially prejudice a trial. Id. at __. Moreover, the rule only affects speech that is likely to influence the outcome of the trial or prejudice the jury venire. Id. at __. And finally, the rule is narrowly drawn, because it precisely identifies the prohibited categories of speech and only prohibits such speech where prejudice therefrom is "reasonably likely," thus ensuring that "lawyers are not sanctionable for technical violations of the rule in which there is no likelihood of prejudicial effect." Id. at __.
Third, and last, the court noted that, post-Gentile, the Second Circuit approved the Southern District of New York's Local Rule 7, which is almost identical to Local Rule 57 and also uses the "reasonable likelihood" standard, in United States v. Cutler, 58 F.3d 825 (2d Cir. 1995).
Given the facts of the case, it is difficult to quarrel with the court's conclusion that Morrissey "willfully, deliberately, and contumaciously violated" Local Rule 57. It is not difficult, however, to quarrel with the three reasons the court offered in defense of its conclusion that the "reasonable likelihood" standard passes constitutional muster.
First, as the court itself noted, Hirschkop was decided before Gentile. Thus, if Gentile disapproved the "reasonable likelihood" test, Hirschkop is no longer good law.
Second, contrary to the assertion of the Morrissey court, Gentile almost certainly does hold that the "reasonable likelihood" standard does not adequately protect lawyers' First Amendment rights. The Morrissey court concluded that "Gentile did not evaluate the constitutional adequacy of the other standards of which the court took note." Morrisey, __ F. Supp. at __. Read literally, that may be true: the Gentile Court did not specifically say that "the reasonable likelihood standard is unconstitutional." Nevertheless, after noting that the "reasonable likelihood" test "is less protective of lawyer speech" than the "substantial likelihood" test, the court almost immediately approved the use of the "substantial likelihood" test. Gentile, 501 U.S. at 1075. Rejection of the "less protective" "reasonable likelihood" standard seems implicit in that holding; had the court wanted to approve the "reasonable likelihood" standard, it almost certainly would have said so.
Third, and finally, the Morrissey court's statement that the Second Circuit approved the use of the "reasonable likelihood" standard post-Gentile in Cutler is simply incorrect. Cutler did not discuss, much less approve, the constitutional validity of the "reasonable likelihood" standard; although Cutler attempted to mount a First Amendment challenge to the standard, the Second Circuit held that he was collaterally barred from doing so because he violated the district court's order instead of seeking appellate relief. See Cutler, 58 F.2d at 832 (citing Walker v. City of Birmingham, 388 U.S. 307, 317-21 (1967) (discussing collateral bar rule)). The only issue in Cutler was whether there was sufficient evidence to convict Cutler of contempt.
Indeed, the Second Circuit's opinion in Cutler is worth exploring in detail precisely because it provides the most detailed discussion to date of what is required to convict a lawyer of contempt for violating a disciplinary or local rule concerning extrajudicial statements. See also RICO Report The Champion, (March 1993) (discussing contempt cases).
Bruce Cutler, of course, was John Gotti's long-time lawyer. Gotti -- aka the "teflon Don," now known as the "velcro Don" -- was arrested on December 11, 1990, on racketeering charges. The murder of Paul Castellano, a rival mobster, was one of many predicate acts. This was the fourth time the government had tried to prosecute Gotti, the previous three having ended in failure. The then-United States Attorney, Andrew Maloney, announced the indictment at a press conference, during which he called Gotti "a murderer, not a folk hero," and asserted that the government's evidence against Gotti was extremely strong. Id. at 828.
Cutler countered Maloney's statements by calling the prosecution "publicity-hungry" and on a vendetta to get Gotti. Those statements were reported by all of the major newspapers in New York. Cutler also appeared on Prime Time Live, where he "emphatically" denied that Gotti was a mob boss. Id.
On December 20, 1990, following Gotti's detention hearing, Judge Glasser, the presiding judge in Gotti's case, admonished the parties, including and particularly Cutler, not to violate the Southern District's rule governing extrajudicial statements, Local Rule 7. Id. at 829. (As noted above, Rule 7 is nearly identical to Local Rule 57.)
"Undeterred," Cutler held a press conference outside the courthouse, where he stated that the government had "thrown the Constitution out the window," described the government's witnesses as "bums," and mischaracterized the government's wiretap evidence as the same evidence used before against Gotti. Id.
On January 9, 1991, Judge Glasser, displeased with the continuing publicity in Gotti's case, again instructed both parties to abide by Local Rule 7. Nevertheless, the very next day a major New York newspaper quoted Cutler as saying that the wiretap tapes contained denials by Gotti that he was involved in the murder of Paul Castellano. Id. at 829-30.
A week later, the government moved to disqualify Cutler and his co-counsel from Gotti's case. Judge Glasser reserved decision on the motion, and during the next four months Cutler was repeatedly quoted about the case by the New York papers, gave an interview to Interview magazine, appeared on 60 Minutes to deny the existence of the mob and to compare the prosecutors to Senator Joseph McCarthy, and appeared on a local news program, Thirteen Live, where he accused the government of persecuting Gotti. Id. at 830. On July 22, the Judge once again ordered the parties to abide by Local Rule 7, and a few days later he granted the government's motion to disqualify Cutler and his co-counsel. Cutler countered with a "media barrage of his own," culminating on August 13, one month before trial, with an appearance on a live television show, 9 Broadcast Plaza. During that appearance Cutler described Gotti as a "good man" and an "honorable man," and accused the prosecutors of trying to frame Gotti. Id. Indeed, at the same time Cutler was making his public statements, the public was exposed to a continuous barrage of prejudicial information "leaked" by "anonymous prosecution sources."
Judge Glasser had had enough. He issued a Show Cause order charging Cutler with violating Local Rule 7, then appointed a special prosecutor and recused himself from the trial. Chief Judge Platt was assigned the Gotti case and the contempt trial -- hardly a fortunate selection for Cutler.
Judge Platt convicted Cutler of criminal contempt after a five-day trial in which he was vigorously defended by Fred Hafetz. United States v. Cutler, 840 F. Supp. 959 (E.D.N.Y. 1994). At sentencing, the district court imposed three years of probation on Cutler, 90 days house arrest, and a 180-day suspension from practicing within the Eastern District of New York.
The sole issue on appeal after the court held that Cutler was collaterally barred from challenging the constitutionality of Local Rule 7 was whether the evidence was sufficient to support Cutler's contempt conviction. To hold Cutler in criminal contempt, the government had to prove beyond a reasonable doubt that (1) the court entered a reasonably specific order; (2) Cutler knew of that order; (3) Cutler violated that order; and (4) Cutler's violation was willful. See Rojas v. United States, 55 F.3d 61 (2d Cir. 1995); see also 1 Leonard B. Sand et al., Modern Federal Jury Instructions: Criminal, 20.02, at 20-26.1 (1994). The Second Circuit had little trouble concluding that the evidence was sufficient with regard to all four elements.
Specific Order and Notice
A defendant cannot be held in contempt absent a "definite and specific" order of which he had notice. United States v. Charmer Indus., Inc., 722 F.2d 1073, 1079 (2d Cir. 1983). The clarity of an order is evaluated by an objective standard of reasonableness, taking into account both the audience to which it was addressed and the context in which it was entered. See United States v. Turner, 812 F.2d 1552, 1556 (11th Cir. 1987). The court easily concluded that the orders were definite and specific, given that "Judge Glasser repeatedly mentioned Local Rule 7 every time he met with counsel to discuss pre-trial publicity," Cutler, 58 F.3d at 835, and that "courts can expect lawyers to comply with less specific orders than laymen." Id. (citing Turner, 812 F.2d at 1556). Moreover, for the same reason, Cutler obviously had notice of Judge Glasser's orders.
Violations of the Order
Hafetz argued that Cutler's statements did not violate Local Rule 7 because they were not reasonably likely to prejudice Gotti's trial. The court disagreed. First, the court noted that there is a rebuttable presumption that speech, falling within the six categories, violates Local Rule 7, because those categories "furnish the context in which the 'reasonable likelihood' standard is intended to operate." Cutler, 815 F. Supp. at 612. Second, the court asserted that Cutler vastly underestimated the effect defense lawyers can have on prospective jurors, given that "lawyers' statements are likely to be received as especially authoritative," because "lawyers have special access to information through discovery and client communications." Gentile, 501 U.S. at 1074. (Given the low level of esteem with which the public regards lawyers, it is questionable whether it believes much of what lawyers say about their clients' cases.) Finally, the court concluded that Cutler timed his statements "to have a maximum impact, when public interest in the case was at its height." Cutler, 58 F.3d at 837.
Willfullness
Criminal contempt generally requires "a specific intent to consciously disregard an order of the court." United States v. Berardelli, 565 F.2d 24, 30 (2d Cir. 1977). Because lawyers are held to a higher standard than lay persons, however, a lawyer's willfulness may be inferred from his "reckless disregard for his professional duty." In re Levine, 27 F.3d 594, 596 (D.C. Cir. 1994). The court found that Cutler was clearly guilty of such recklessness, as indicated by his "persistent attempts to try Gotti's case in the media, despite Judge Glasser's repeated warnings." Cutler, 58 F.3d at 837.Putting aside the question of whether his actions were justified, Cutler's contempt conviction raises an important question: to what extent are defense lawyers entitled to respond to prosecutors' public statements or anonymous leaks from "a source close to the prosecution" about their clients through public statements of their own? In almost all complex cases, particularly high-profile ones like Gotti's, damaging information "leaks" to the press from the grand jury, the prosecution, or the police. Indeed, it is undeniable that the first public statement about Gotti's case came from the then-United States Attorney, not from Cutler; as the Second Circuit itself noted, "Cutler did not singlehandedly generate the media circus that threatened the fairness of the final Gotti trial; federal prosecutors and law enforcement officials deserve their fair share of the blame." Id. at 840. Moreover, most state ethical codes expressly permit lawyers, in the words of the California rule, to "make a statement that a reasonable member 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." California Rule of Professional Conduct 5-120(C).
Despite these countervailing considerations, the Cutler court failed to provide defense lawyers with any guidance concerning their right to respond to prejudicial statements by prosecutors, police, or "anonymous prosecution sources," other than to say -- tautologically -- that those comments cannot be "reasonably likely" to materially prejudice a trial. Given that what is "reasonably likely" is in the eye of the beholder -- and given that, in the eyes of courts, extrajudicial statements by defense attorneys somehow always turn out to be more prejudicial than the speech of prosecutors -- Cutler will have a regrettable, chilling effect on the speech of defense lawyers everywhere.
Gag Orders and Pending Cases
In addition to punishing a lawyer after the fact for making extrajudicial statements that are "reasonably likely" to interfere with a fair trial or the fair administration of justice, courts also occasionally attempt to silence a lawyer's extrajudicial statements before they are made, through a gag order prohibiting the lawyer from making certain statements to the press. Fortunately, such gag orders rarely survive constitutional scrutiny, as demonstrated by the Ninth Circuit's decision in Braun v. United States Dist. Court for the Central Dist. of California, No. 93-70097 (9th Cir. Feb. 22, 1993).On August 5, 1992, Stacey E. Koon, Laurence M. Powell, Timothy E. Wind, and Theodore J. Briseno were indicted on charges of violating federal civil rights laws in connection with the March 3, 1991, beating of Rodney King. Briseno hired Harold Braun, a well-known and controversial Los Angeles lawyer, to represent him at the federal trial.
On February 4, 1993, the prosecution complained to the district court that Braun had been publicly stating his belief that the federal prosecution of the four officers was politically motivated and would not have been brought in the absence of the extraordinary political pressure surrounding the case. (Certainly not a difficult conclusion for an objective observer to have reached.) Later that day, without holding an evidentiary hearing or allowing either party to brief the First Amendment principles involved, the district court issued a gag order directed solely at Braun, ordering him to "refrain from publicly impugning the motives of the government and the prosecutors as they related to this case." Braun immediately appealed, arguing that the gag order was an unconstitutional prior restraint on speech protected by the First Amendment.
In a one-paragraph opinion -- its brevity reflecting the overwhelming force of Braun's position -- the Ninth Circuit agreed. The court began by noting that, as a prior restraint, the district court's order was invalid unless Braun's speech posed "either a clear and present danger or a serious and imminent threat" to the fairness of Briseno's trial. See, e.g., Levine v. United States Dist. Court for the Central Dist. of California, 765 F.2d 590, 595 (9th Cir. 1985). The court then concluded that Braun's speech did not pose either danger and vacated the challenged part of the district court's order. Braun, No. 93-70097.
Braun indicates that there is a fundamental difference between punishing a lawyer for making statements about an upcoming trial and preventing the lawyer from making those statements in the first place: whereas a lawyer can be punished for making statements that are "reasonably likely" to interfere with a trial, a lawyer can be prohibited from making statements only if those statements pose "either a clear and present danger or a serious and imminent threat" to the fairness of the trial - a much more exacting standard.
Defense lawyers need to be aware, however, that the difference between punishment and prohibition is a two-way street. The fact that a lawyer cannot normally be prohibited from making statements about an upcoming trial does not mean that a lawyer cannot be punished for making such statements. If the lawyer's statements satisfy the "reasonable likelihood" test, the First Amendment does not prevent a court or a state bar from disciplining the lawyer. Indeed, in Braun, the Ninth Circuit explicitly stated that "nothing in this order shall prevent the district court from initiating disciplinary proceedings against [Braun] for any breach of the standards of professional behavior." Id. (citing Gentile).
Extrajudicial Statements About Judicial Officers
Although rules prohibiting lawyers from discussing pending cases with the press are not always wisely enforced, such rules are certainly necessary to ensure that all defendants receive a fair trial. Rules prohibiting lawyers from publicly criticizing judicial officers, however, are a different story: except in the most extreme cases, such rules do little more than chill protected speech and insulate judges from -- often well-deserved -- criticism.Fortunately, some courts value the First Amendment more than their professional self-interest in avoiding criticism. Exemplary in this regard is Judge Kozinski's majority opinion in Standing Committee on Discipline in the United States District Court for the Central District of California v. Yagman, 55 F.3d 1430 (9th Cir. 1995), in which the Ninth Circuit reversed a district court's decision to suspend a lawyer from practice for two years for "impugning the integrity of the court and interfering with the random selection of judges by making disparaging remarks about a judge of that court." Id. at 1433.
The case began in 1991, when Stephen Yagman, a controversial and colorful Los Angeles civil rights attorney who can charitably be described as "outspoken," filed a pro se lawsuit against a number of insurance companies. The case was assigned to Judge Manuel Real, the then-Chief Judge of the Central District. Yagman promptly sought to disqualify Judge Real on grounds of bias -- in an earlier case Judge Real had directed a verdict against Yagman's clients and sanctioned Yagman himself $250,000, a sanction that the Ninth Circuit reversed on appeal. In re Yagman, 796 F.2d 1165, 1168 (9th Cir. 1986). As in the Cutler case, Yagman was also not particularly fortunate in the selection process for determining who would rule on the disqualification motion -- the motion was assigned to Judge William Keller, who denied it, Yagman v. Republic Ins., 136 F.R.D. 652, 657-58 (C.D. Cal. 1991), and sanctioned Yagman for pursuing the matter in an "improper and frivolous manner." Yagman v. Republic Ins., 137 F.R.D. 310, 312 (C.D. Cal. 1992).
A few days after Judge Keller imposed sanctions, Yagman was quoted as saying that Judge Keller "has a penchant for sanctioning Jewish lawyers: me, David Kenner, and Hugh Manes. I find this to be evidence of anti-Semitism." The district court also later found that Yagman said that Judge Keller was "drunk on the bench," though that allegation was not published. Yagman, 55 F.3d at 1434.
Around the same time, Yagman received a request from the Almanac of the Federal Judiciary to comment on Judge Keller. As Judge Kozinski put it, "Yagman's response was less than complimentary. Indeed, Yagman described the judge as 'ignorant, dishonest, ill-tempered, and a bully, and probably . . . one of the worst judges in the United States.'" Id.
Soon after these events, Yagman allegedly told Robert Steinberg that he was publically criticizing Judge Keller in order to get the judge to recuse himself in future cases. Steinberg then reported his conversation with Yagman in a letter to the Standing Committee on Discipline. Id. (Steinberg's credibility is rather dubious, given that he had previously admitted fabricating a widely publicized story that he possessed explicit tapes of President Reagan's friends engaged in extramarital frolics.
After investigating Steinberg's letter and Yagman's comments to the press, the Standing Committee issued an Order to Show Cause why Yagman should not be suspended from practice or otherwise disciplined for violating Local Rule 2.5.2. That rule enjoins attorneys from engaging in any conduct that "degrades or impugns the integrity of the Court" or "interferes with the administration of justice." Both sides requested an opportunity to brief the First Amendment questions raised by the rule, but the district court ignored those requests.
Once again, Yagman appeared to be particularly unlucky in the selection process for the three-judge district court panel assigned to his case: after a two-day hearing, the panel concluded that Yagman had committed sanctionable misconduct and suspended him from practice in the Central District for two years. Id. at 1435. Yagman appealed.
Integrity of the Court
Yagman's fortunes seemed to change for the better, however, when Judge Alex Kozinski was selected to sit on the appellate panel that would decide his fate. Although Judge Kozinski is often characterized as a conservative, his philosophy can best be described as libertarian. He is a courageous judge and a man of towering intellect, even though like many bright people he may not be quite as smart as he thinks he is.Judge Kozinski began the majority opinion by analyzing the "integrity of the court" provision of the Local Rule 2.5.2. The district court recognized that, as written, the provision was substantially overbroad, so it had read into it an "objective" version of the malice standard enunciated in New York Times Co. v. Sullivan, 376 U.S. 686 (1964). Relying on United States District Court v. Sandlin, 12 F.3d 861 (9th Cir. 1993), the court limited Local Rule 2.5.2 to prohibit only false statements made with either knowledge of their falsity or with reckless disregard for their falsity, such disregard being judged from the standpoint of a "reasonable attorney." Yagman, 856 F. Supp. at 1389-90.
Judge Kozinski agreed with the district court's interpretation of Local Rule 2.5.2, but disagreed with its conclusion that Yagman's comments satisfied the Sandlin test. As the judge noted, a lawyer may only be sanctioned for impugning the integrity of a court if his statements are false, see Garrison v. Louisiana, 379 U.S. 64, 74 (1964), and the burden of proving falsity is always on the disciplinary body. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986). Moreover, statements of opinion are protected by the First Amendment unless they "imply a false assertion of fact," Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990); neither statements of "rhetorical hyperbole" nor statements that use language in a "loose, figurative sense" are actionable. See National Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 284 (1974) (holding that use of word "traitor" could not be construed as a factual assertion).
Judged according to those standards, Judge Kozinski concluded, none of Yagman's comments were actionable. First, although Yagman's comment about Judge Keller's penchant for sanctioning Jewish lawyers was a factual assertion, the Standing Committee did not argue that the assertion was false.
Second, Yagman's statement that Judge Keller is anti-Semitic was an opinion based on expressly stated facts, and is thus actionable "only if the stated facts are themselves false and demeaning." Yagman, 55 F.3d at 1439 (citing Lewis v. Time, Inc, 710 F.2d 549, 555-56 (9th Cir. 1983)). Here, the expressly stated facts -- Judge Keller's penchant for sanctioning Jewish lawyers -- were not themselves false or demeaning; thus "[r]eaders were free to form another, perhaps contradictory, opinion from the same facts, as no doubt they did." Id. at 1440. Morever, even if Yagman's statement could be construed as a "bare allegation" of anti-Semitism, it still would probably be protected by the First Amendment as mere "name-calling." See, e.g., Stevens v. Tillman, 855 F.2d 394, 401 (7th Cir. 1988) (holding nonactionable allegation that plaintiff was a "racist"); Ward v. Zelikovsky, 643 A.2d 972, 983 (N.J. 1994) (holding nonactionable allegation that plaintiffs "hate Jews").
Third, Yagman's assertion that Judge Keller was "dishonest" was nothing more than a "statement of rhetorical hyperbole, incapable of being proved true or false." Id. Had Yagman accused Judge Keller of "taking bribes," his statements could reasonably be understood as accusing Judge Keller of criminal conduct; simply using the term "dishonest," however, cannot be so understood. Id.
Fourth, and finally, although Yagman's statement that Judge Keller was "drunk on the bench" does imply actual facts capable of objective verification, and was thus potentially actionable, the Standing Committee failed to introduce any evidence indicating that the statement was false. As a result, "[b]y presuming falsity, the district court unconstitutionally relieved the standing committee of its duty to produce evidence on an element of its case." Id.
Administration of Justice
Having concluded that Yagman had not violated the "integrity of the court" component of Local Rule 2.5.2, Judge Kozinski then turned to the rule's "interferes with the administration of justice" component. The district court had concluded that Yagman violated that component because he made his statements in order to force Judge Keller to recuse himself in cases in which Yagman appeared as counsel.Judge Kozinski did not quarrel with the district court's view of Yagman's intent. He did, however, disagree with the court's conclusion that Yagman's statements violated Local Rule 2.5.2. Relying on Craig v. Harney, 331 U.S. 367 (1947), Judge Kozinski held that, like press statements, statements made by lawyers that do not relate to a pending case may not be restricted unless they pose a "clear and present danger" to the administration of justice. Yagman, 55 F.3d at 1442; see Craig, 331 U.S. at 372 (applying "clear and present danger" standard to press statements); but cf. Gentile, 501 U.S. at 1075 (holding that "clear and present danger" standard does not apply to lawyer statements relating to a pending case). In light of that standard, Yagman's comments were not actionable under Local Rule 2.5.2, no matter how "harsh and intemperate," because "it has long been established . . . that a party cannot force a judge to recuse himself by engaging on personal attack on the judge. Id. (citing Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 326 (Pa. 1788)).
Proposed Central District Disciplinary Rule
Judge Kozinski's excellent majority opinion in Yagman is a victory both for the First Amendment and for lawyers who have to appear in front of hostile and biased judges. Unfortunately, a number of judges are more concerned with defending their reputations than defending the First Amendment: a committee of federal judges in Southern California is currently attempting to enact a new disciplinary rule that would disbar, suspend, or fine lawyers who make remarks that "impugn the character or integrity of any judicial officer." Under the proposal, any lawyer who accuses a federal judge of dishonesty, illegal activity, or discrimination could be called before a disciplinary committee and sanctioned. Moreover, unlike non-lawyers, lawyers charged with violating the rule would not be allowed to claim that they were merely expressing an opinion and would have the burden of proving the truth of their statements. See Davan Maharaj, Judges Seek to Curb Criticism By Lawyers, L.A. Times, Mon. April 20, 1998, at A3.Not surprisingly, the judges' proposal has been roundly criticized by lawyers, ethics professors, and even other judges -- and rightly so. To begin with, the proposal is almost certainly unconstitutional. First, as noted above, the Supreme Court has explicitly held that statements of opinion are protected by the First Amendment unless they imply facts that are objectively capable of being proved false. See Milkovich, 497 U.S. at 19. And second, because judges are public figures, the First Amendment requires that the disciplinary body have the burden of proving that a lawyer's statements are false. See, e.g., Philadelphia Newspapers, Inc., 475 U.S. at 776-77; Yagman, 55 F.3d at 1438. The judges behind the proposal have yet to offer any rationale for why these long-accepted principles of First Amendment jurisprudence apply to all forms of speech except speech by lawyers that criticizes judges. It is indeed troubling that some federal judges with lifetime tenure are so insecure that they feel the need to insulate themselves from public criticism.
Moreover -- and perhaps most importantly -- the proposed rule is a terrible idea. As Justice Black said more than 50 years ago in Bridges:
The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.
314 U.S. at 270-71. n
Readers are a vital source of information without which this column could not be supplied with current information on RICO developments. Information regarding developments in pending cases, decisions and interesting briefs and motions should be sent to:
RICO Report
Barry Tarlow
9119 Sunset Boulevard
Los Angeles CA 90069
Phone (310) 278-2111
Fax (310) 550-7055