Defense Articles

Fourteen years after its release, My Cousin Vinny retains a devoted audience in the criminal defense legal community.

This spring, two presenters at a National Association of Criminal Defense Lawyers conference used clips from the movie to teach young lawyers the finer points of voir dire, cross-examination and trial strategy. Several other criminal defense lawyers told Lawyers USA they routinely cite scenes from the movie to illustrate key legal points - both with other attorneys and their clients.

Even Arthur Miller, the world famous Harvard Law School professor, advises his first-year students to check out the film.

Most movies don’t really get into trial procedure, but ‘My Cousin Vinny’ does, Miller said. Movies are great because they dramatize and bring a reality - even when fictional or funny - to law in action in a way that the classroom does not. Even a sensationalized scene like the Cruise-Nicholson confrontation in ‘A Few Good Men,’ tells the student that courtroom drama plays out in real life, although admittedly rarely in the stark form that Hollywood offers.

Miller lists My Cousin Vinny among a handful of great law movies including Twelve Angry Men, Anatomy of a Murder and Judgment at Nuremberg.

But among trial lawyers - especially those who specialize in criminal defense - My Cousin Vinny is the one movie they never tire of watching.

Directed by Jonathan Lynn, the courtroom comedy stars Joe Pesci as Vincent Gambino - a New York attorney who took six tries to pass the bar exam and who has never tried a case. Vinny is summoned to rural Alabama to defend his cousin and a college friend who have been mistakenly identified in the murder of a convenience store clerk.

Although Vinny and his brassy fiance, Mona Lisa Vito (Marisa Tomei), initially repel the judge (Fred Gwynne) with their flashy attire and thick New York accents, they eventually decimate the prosecutor’s case and win over the jury.

Cited by Court TV as the best trial movie of all time, My Cousin Vinny is actually an insightful look at courtroom procedure and trial strategy.

Anthony Natale

Federal defenders’ office, Miami

During his presentation on cross-examination at a NACDL seminar in Philadelphia this spring, Natale showed several clips from the movie, including Vinny’s pre-trial research and witness interviews.

The reason I like using it is he’s interviewing people, Natale said. It’s not like he’s shooting from the hip.

Before the trial, Vinny interviews key witnesses in person and tries to envision how each one saw the crime.

Natale also showed Gambini’s cross-examination of several eyewitnesses: one who saw the crime through his grime-covered window; a combative witness whose time estimates are skewered by Gambini’s research on cooking grits; and an elderly woman whose eyes have gotten more and more out of whack.

The scenes, Natale said, really do illustrate how you can create that dissonance between the jury and the eyewitness.

Charles Daniels

Criminal defense, Albuquerque, N.M.

Daniels, who has been practicing and teaching criminal defense for 37 years, has used My Cousin Vinny as a teaching tool for his class in Evidence-Trial Practice at the University of New Mexico School of Law.

Besides being a well-written, well-acted and laugh-out-loud funny movie, this trial movie is one of the best in providing realistic lessons and good and bad trial techniques, he said. [It provides] vivid examples of important points that [students] need to learn.

Like Natale, Daniels uses clips from the movie to emphasize the importance of cross-examination and thorough investigation and preparation.

Other trial tips Daniels extracts from the movie include:

The importance of never going fishing at trial by asking questions on cross when you don’t know what the answer will be.

Look at the pathetic co-counsel’s smugly wading into areas that kept giving the adverse witnesses more opportunities to sink his client, at Vinny’s early floundering on cross, and at the prosecutor’s uninformed attempts to cross Vinny’s girlfriend on her qualifications as an automotive expert, Daniels said.

Proper and improper techniques in presenting and challenging expert testimony, including both expert qualifications and dealing with the opinion itself.

The climactic part of the movie comes with the destruction of the supposed ’smoking gun’ expert testimony of the FBI tire expert by Vinny’s better-informed girlfriend, Daniels noted.

How to dress and not dress for trial. Vinny appears at the arraignment in a leather jacket and without a tie, and is jailed for contempt of court for behaving disrespectfully and failing to enter a plea for his client. When the trial opens, Vinny shows up in an outlandish, vintage Southern suit because his suit fell in the mud.

How not to conduct voir dire. During Vinny’s voir dire of his fiance as an automotive expert, the prosecutor trips himself up by asking her a trick question that ends up - much to his chagrin - proving her automotive knowledge.

I used to love to go to parties. Sadly, that all changed once I became a criminal defense attorney. Below is the conversation that I have at every shindig that I’ve attended over the last 10 or so years.

“So what do you for a living?”

“I’m an attorney.”

(Invariably dollar signs flash in my new acquaintance’s eyes despite the fact that I’m clearly wearing a suit unfit for a rack in a fancy law firm.)

“Really. What type of law do you practice?”

“Criminal defense.”

(It’s always at that point that I wished I had employed that quintessential lawyering skill - lying. All I have to say is “bankruptcy law” and the topic changes.)

“Huh. So do you try to put people in jail or keep them out?”

“I try to keep them out.”

“Have you ever represented someone who you thought might be guilty?”

“I honestly can’t remember the last time I represented someone who I thought was innocent.”

“What?”

(Here we go.)

“You represent people even though you know they are guilty?”

“Every day.”

“You try to get them off?”

“Well, not sexually.”

“What if you win and your client goes out and committed the same crime again? Wouldn’t you feel awful?”

“Hey, recidivism pays the bills.”

“You kidding?”

“Yes, I’m kidding. I actually represent only poor people.”

“Why?”

“A number of reasons. My father claims I discriminate against the rich.”

“So you’re a public defender?”

“Sort of. My actual title is ‘bar advocate.’”

“Huh?”

“Actually, it’s a ridiculous title - it basically means I’m court- appointed.”

“Oh, I thought those were the worst attorneys.”

(And then I wait for the inevitable … )

“No offense.”

“Trust me, you’re not the only one who has that misconception. But the fact is, some of the best attorneys in the state are court- appointed.”

“Have you ever represented anyone charged with murder?”

“A couple times.”

“You actually try to convince a jury that a guy who has killed is innocent?”

“Well, now I do appeals, so a jury has already found my client guilty. I then try to convince a higher court to overturn the conviction based on something that happened during the trial that shouldn’t have.”

“So you try to get them off on technicalities?”

“Otherwise known as constitutional protections.”

“Tomato; to-mah-to.”

“More like tomato; garbanzo.”

“Wait a minute. Tomatoes aren’t the same as garbanzos.”

“Exactly.”

“I just don’t see how you can represent these people. I mean what if someone killed one of your relatives? How would you feel about that?”

“That depends. Are you throwing in-laws in the mix?”

“I mean if ….”

“Hang on a second. How about I ask a question here? What if you committed a crime? Wouldn’t you want to be represented as best as possible?”

“I’m not a criminal so that would never happen.”

“Ever get pulled over for speeding?”

“Sure, but that doesn’t make me a criminal.”

“Well, if you were going really fast, that could have been reckless endangerment. And if you hit someone, that could have been vehicular homicide.”

“But I didn’t.”

“So, it’s not that you’re not a criminal; it’s that you’re lucky.”

“What?”

“Now, did you pay those speeding tickets that you got?”

“Didn’t have to. I got them thrown out. A buddy of mine knows someone.”

“But you were actually guilty of speeding.”

“Yeah, but that’s not a big deal. Your clients do horrible things.”

Don’t you think representing them is immoral?”

(Pause.)

“Sorry, I was just waiting for you to follow that up with ‘no offense.’ To answer your question: No, I don’t find it immoral. In fact, I think representing indigent criminal defendants is paradoxically the most moral thing an attorney can do.”

“Wait a minute, you’re trying to say that representing these scumballs is moral?”

“Unquestionably. There’s a number of sociological reasons and there’s the need to keep power in check. There’s also the principle that for every guilty person not defended properly, precedent can be set that might lead to an innocent person going to jail. But the reason that I represent these ’scumballs,’ as you say, is simply because everyone’s a scumball _ some people just have nicer clothes.”

“Huh?”

(Wait for it … )

“Hey. I have nice clothes.”

“Exactly.”

David Barend is a criminal defense lawyer in North Attleboro, Mass. This column originally appeared in Massachusetts Lawyers Weekly, another Dolan Media publication.

ON MAY 17, 2004, the left-wing lawyer Lynne Stewart will go on trial in New York for allegedly helping a convicted terrorist leader direct jihad operations from inside a federal prison.

Stewart has admitted in interviews since her indictment that in June 2000 she broke an agreement with the Justice Department and violated Bureau of Prisons restrictions to help her imprisoned client, the “blind sheikh” Omar Abdel Rahman, issue a press release to the Reuters news service recommending that his followers in the Islamic Group in Egypt abandon a two-year-old “cease-fire.” The Islamic Group was responsible for the 1997 gun-and-knife massacre of 58 foreign tourists and four Egyptians at Luxor as well as other attacks.

Stewart claims that in issuing Abdel Rahman’s press release, she did “nothing more than any other lawyer would ever do,” helping her client communicate with the outside world and exercising her own right to free speech. She says she is being singled out for representing a reviled client.

Casual observers may be forgiven for dismissing the Stewart prosecution as an anomalous case of a reckless lawyer facing repercussions for irresponsible conduct, with no broader implications for the justice system. It’s true that Lynne Stewart makes an implausible civil liberties heroine. She has expressed admiration for Abdel Rahman’s decidedly illiberal vision of “positive social change,” arguing that the radical Islamic revolution he seeks is “the only hope” for various oppressed peoples in the Middle East. She maintains that American criticism of the Taliban’s treatment of women is a case of “the pot calling the kettle black” because of supposedly comparable discrimination against women here. And by her own admission, Stewart concluded for herself that the Bureau of Prison restrictions on Abdel Rahman’s communications with the outside world were unreasonable and, instead of challenging the restrictions in court, deliberately helped the sheikh circumvent them.

Yet Stewart’s prosecution has revealed a broad and troubling Justice Department strategy. This strategy goes far beyond the need to make sure lawyers abide by restrictions on prisoner communications–restrictions motivated by the legitimate security concerns that cases like this raise. For that purpose, it would be sufficient to criminalize attorney violations of the restrictions known as “special administrative measures” (SAMs), which have been used since the Clinton administration to prevent Abdel Rahman and other imprisoned terrorists from communicating (directly or indirectly) with their supporters on the outside. Instead, the Justice Department is pursuing a course that threatens the Sixth Amendment right to legal representation by exposing just about any attorney who represents a suspected terrorist to the risk of prosecution, thereby discouraging lawyers from taking such cases or, if they do, from representing their clients zealously.

The conduct for which Stewart was charged occurred before September 11 and before Congress passed the USA PATRIOT Act, a statute aimed at enhancing federal power to fight terrorism. Stewart could not be prosecuted under the PATRIOT Act because of the Constitution’s Ex Post Facto Clause, which forbids the application of criminal laws to conduct that occurred before they were passed. That was a lucky break for Stewart, who is instead charged under a predecessor law with providing “personnel” to a terrorist group (by helping Abdel Rahman maintain his leadership role from prison) and with committing “fraud” and uttering “false statements” by promising to abide by the SAMS when she allegedly had no intention of doing so–a state of mind that may be difficult to prove.

Had the timing of her actions been different, Stewart could have been charged with violating a little-noticed provision of the PATRIOT Act that makes it a crime to provide “expert advice or assistance” to a terrorist group. Although the Justice Department cannot use that provision against Stewart–and a California federal judge recently limited its reach–the department’s court submissions in her case take the position that legal representation of alleged terrorists is a crime under the PATRIOT Act if the lawyer can be portrayed as acting under “the direction and control” of a foreign terrorist organization. The law does not require any intent to further illegal activities, and the Justice Department contends that there is no exception for “good faith” or “bona fide” legal representation.

All lawyers work “under the direction and control” of their clients, within the limits of the rules of ethics. If the Justice Department’s interpretation of the PATRIOT Act is accepted by the courts, any lawyer who represents a terrorism suspect can be charged with a crime if the government claims his client’s directives also represent the directives of the terrorist organization the client is accused of serving. In virtually any terrorism case that does not involve a “lone wolf” defendant, it could be alleged that the defendant is acting on behalf of his organization as well as himself in directing his lawyer (as the government alleges in Stewart’s case). Defense lawyers who represent accused terrorists may have to depend on the self-restraint of federal prosecutors to avoid facing criminal charges themselves.

HARLAND Braun, the Century City attorney hired by actor Robert Blake to defend him against charges he murdered his wife, resigned from the case on Oct. 28 after Blake agreed to an on-camera interview with ABC’S Diane Sawyer. Braun, who says he believes Blake is innocent, maintains that setting up the interview was the “straw that broke the camel’s back” in his efforts to keep Blake out of the press. A former prosecutor who has been a criminal defense attorney for the bulk of his career, Braun is known for his openness with the media. He has spoken bluntly about the Blake case since Bonny Lee Bakley’s May 2001 murder Braun, whose past clients include police officers embroiled in the Rodney King and Rampart scandals, said he is already working on new cases in his three-person office.

Question: You resigned from Robert Blake’s defense because you didn’t want him to do an on-camera interview. What difference would the interview have made?

Answer: To tell the story, it would take about a day to a day and a half in court. There’s no way Diane Sawyer is going to put him on for 24 hours and unedited. You’ll have a 15-minute interview that’s done for entertainment. We’re talking about entertainment, not news. So they’ll take the facts out of context and make him look guilty just because that’s better entertainment. I’ve put people on television before. I don’t object to it. But in this case, it wouldn’t make any sense to do it.

Q: It was thought unlikely that the sheriff’s department would allow the interview — and it didn’t — so why resign over something that was unlikely to happen?

A: Scheduling the interview was the straw that broke the camel’s back. I had had ongoing discussions with him on the necessity of waiting until trial. We had been working on this for months. I allowed him to talk to a few people in the press, not on camera, just to satisfy his need to speak out. All of a sudden, I was presented with a fait accompli. I thought I could persuade him not to, but he’s an actor. He has in his mind to have a connection with the public. And it’s important to him that the public out there knows his side of the story. To me, I’m only concerned about 12 people in a jury box.

Q: Why is a media strategy so important?

A: To get a fair trial, ultimately you have to do a lot of press stuff. You have to stay on top of the press and speak for your client and get his side of the story out there. If someone makes an accusation and you don’t give a response, it’s assumed to be true. What’s the point of representing him if you’re not representing him in the court of public opinion that will make or break a jury trial? That would be like not showing up at the first day of trial.

Q: Doesn’t your resignation affect public opinion negatively?

A: I doubt it. In all the interviews, I said I still have faith in his case and innocence. But that was a choice he and his civil lawyer made when they decided to schedule an interview. (His civil attorney is helping pick a new criminal attorney.)

Q: You took some heat at the beginning of this case when you questioned Bakley’s character, days after her death. Why did you do it?

A: If you didn’t understand who Bonny Bakley was, you wouldn’t understand the fact that maybe Robert didn’t kill her. You have to get out who she was. When you do that, you initially look like the bad guy because you’re dealing with a dead woman and you’re calling her a criminal.

Q: Your legal tactics have been described as “outrageous” by many of your colleagues and opponents.

A: People are not used to the truth. Everyone is mealy mouthed. If I think a judge is not doing a good job, I’ll say, “Yeah, he’s got bigcaseitis.” I tell the truth. I’m not running for public office, so I’m not worried about that. I’m not a member of a firm, so I don’t have to worry about what my partners think.

Q: Were you ever part of a firm?

A: Never. I did one year in Washington D.C. in ‘67 and ‘68. Then I entered the DA’s office for five years until ‘73.

Q: Why did you switch to defense?

A: I don’t want to spend my whole life in a bureaucracy. So I went into civil practice, thinking I’d be a civil lawyer. I found criminal to be more interesting. Many cases that are boring from a DA’s point of view are interesting from a defense point of view because there’s a person attached to them. That’s the reason I left. Plus, the money. You top out at the DA’s office. You have to live so your kids can go to college.

Q: What’s your workload?

A: I’m probably handling 20 to 30 cases at a time. Usually about five to six are substantial and the others are smaller. I probably try a half-dozen cases a year. I probably put in about 70 hours a week.

Q: What was one of your first criminal cases?

A: It was of a mother accused of trying to suffocate a child. That was a very serious and difficult case. Her son had a health condition. She called the police and said, “I think I killed my son” because he went unconscious. The police wrote down, “I tried to kill my son.” It was a mistake, but she was tried for attempted murder. She was acquitted. She later killed herself by drinking Drano because she lost custody of this child. You can see the consequences of the police coming in and misinterpreting what happens. She was acquitted, but she lost her life. About a year ago, her son came in and asked me the story of his mother because he’d never really heard the true story. His mother was always portrayed as this evil person who tried to kill him. I told him the real story.

Last year, former McKesson Corp. CFO Richard Hawkins faced criminal charges after a $20 million accounting error was discovered at HBO & Co., a subsidiary McKesson had acquired in 1999. Together, the charges, including securities fraud and conspiracy, carried a maximum sentence of 25 years in prison. With executives from Tyco, WorldCom, and HealthSouth also on trial, and with public outrage at corporate scandals mounting, Hawkins decided to take a gamble: he waived his right to a jury trial.

“We didn’t have a lot of comfort that a jury would take the time to wade through the accounting rules–particularly in this climate, with so many other executives going to trial at the same time” explains Walter F. Brown Jr., a partner at Orrick, Herrington & Sutcliffe LLP in San Francisco and a co-leader of Hawkins’s defense team. The gamble paid off. The defense convinced the judge that the former CFO had made accounting judgments in good faith, after consulting with outside auditors. Hawkins was found not guilty on all counts, one of the few recent victories for a CFO on trial.

The verdict solidified Brown’s status as a member of a legal elite: the 50 or so white-collar defense attorneys who are regularly tapped to represent top executives of America’s largest companies. They include such stars as John Keker of Keker & Van Nest LLP in San Francisco, attorney for former Enron CFO Andrew Fastow; Reid Weingarten of Steptoe & Johnson LLP in Washington, D.C., who defended former WorldCom CEO Bernard Ebbers and is currently representing former Enron chief accountant Richard Causey; and Charles Stillman of Stillman & Friedman PC in New York, who defended former Tyco finance chief Mark Swartz.

This cream of the white-collar defense bar has been busy the past few years, as regulators and prosecutors have stepped up their pursuit of corporate wrongdoers. Civil and criminal investigations have focused on aggressive financial and accounting tactics, making finance executives inevitable targets of litigation. Companies are quick to distance themselves from accused CFOs, who are often pressured to cooperate with prosecutors or face the possibility of stiff penalties and prison sentences.

In this high-pressure, high-stakes environment, a finance executive needs the best legal help he or she can find–and afford.

The Howling Mob

Many top white-collar defense attorneys got their start on the other side of the aisle, as prosecutors. Many know one another, personally or by reputation; some worked in the same U.S. Attorney’s office. As a result, it’s clubby at the top, with attorneys regularly referring business to one another when schedules fill up or conflicts arise.

Those schedules have been filling rapidly with finance-related cases as the government has cracked down on corporate crime. For instance, Brown says 25 to 35 percent of his work involves finance executives, as defendants in civil or criminal investigations. Weingarten of Steptoe & Johnson says about half of his practice is devoted to defending finance executives, compared with 10 to 20 percent prior to 2001.

The surge in finance-related cases, often involving many millions of dollars of shareholder value, has been accompanied by increased public interest–and anger. “We’re living in this environment where it’s like you’re defending a nobleman in the French Revolution, and the guillotine is outside and the mob is howling,” says Weingarten. Keker agrees: “Since Enron, there’s been a huge amount of hatred directed at CEOs and CFOs.”

Accounting maneuvers that were once praised in the financial press as earnings management are now attacked in the courtroom as fraud. “We’re seeing cases of accounting improprieties that are being prosecuted criminally today that would not have been prosecuted that way 10 years ago” says David Schertler, a founding partner at Washington, D.C.-based Schertler & Onorato LLP. In 2002, Schertler defended WorldCom’s former director of accounting, Buford Yates, against securities-fraud charges. Agreeing to cooperate with investigators, Yates pleaded guilty and received a prison sentence of one year and one day.

It could have been worse for Yates, as prosecutors are seeking tougher plea agreements and longer jail sentences for white-collar defendants. “Suddenly, all people want to do is put chief financial officers in prison” says Charles Stillman, who defended Tyco’s Swartz against fraud and larceny charges. “That’s the game du jour.”

Cram Sessions

To have a shot at winning this game, defense attorneys have to digest complicated financial matters in a hurry. “Often these cases rise and fall on complex accounting issues and your ability to understand them,” says Brown, who studied the fine points of revenue recognition and the accounting rules regarding reciprocal transfer, or rights of return, for the McKesson case. “There is no substitute for immersing yourself in the GAAP literature and mastering it.” Brown has taken classes designed for lawyers who practice in finance-related areas, and says his firm has brought in representatives from the Big Four accounting firms to conduct seminars.

Think the cops are having a tough time cracking the Chandra Levy case? Try this one on for size.

Samiya Haqiqi, a 24-year-old law student at Quinnipiac College in Connecticut, drove to New York City on a Friday night in November 1999 to meet her boyfriend for dinner. She intended to break up with him. The next day her car was found abandoned in a Grand Union supermarket parking lot. She has not been seen since.

Suspicion quickly fell on the boyfriend. He claimed she never made the dinner engagement. When police asked further questions, he hired an attorney and invoked his Fifth Amendment rights. Although Haqiqi’s relatives urged the Queens district attorney to issue a search warrant for the boyfriend’s apartment, the D.A. refused, saying there was no “probable cause.” Shortly afterward, the boyfriend moved to Canada.

A year later, the Queens detective bureau announced that Haqiqi was the victim of a “violent crime” and that the boyfriend was the suspect; but nothing happened. Last week, Detective Steven Brown of the 109th Precinct said the boyfriend still remains the principal suspect-but no arrest is imminent. “It’s generally more helpful when the suspect cooperates during an investigation,” he said. Any physical evidence that would tie the boyfriend to the disappearance is, of course, long gone.

At the heart of the Chandra Levy case is a grim fact of life: We are living in the post-Columbo era. Many traditional aspects of detective work have been abandoned; in fact, much of what detectives once did is now illegal. The only thing that keeps the wheels of justice turning is that most people don’t know this. “People only talk to the police because they think it will look suspicious if they don’t,” says an experienced Manhattan assistant district attorney. “What they don’t realize is that the police aren’t allowed to draw that negative inference.”

Defense attorneys, of course, know it all by heart. That’s why you’ll always hear them holler that a defendant “wasn’t properly represented” when someone is convicted of a crime, particularly a death-penalty case. It’s true: If all Americans knew their rights, very few people would ever be arrested for anything.

This situation is the outcome of the 1960s Supreme Court reforms, particularly Mapp v. Ohio (1961) and Miranda v. Arizona (1966). Mapp extended the Fourth Amendment’s search-and-seizure protections and search-warrant requirements to the states. Miranda extended the Fifth Amendment’s protections against self-incrimination all the way back to the police station, establishing the “right to remain silent.” Both decisions were reinforced by an “exclusionary rule,” which said that if a defendant’s rights were violated in the course of an investigation, the resulting evidence must be excluded from court.

Since that moment, the main strategy of every defense attorney has become to “put the state on trial” by challenging investigative procedures. As a result, absurdities have prevailed. Warrants were voided because of misspellings and typographical errors. Purely voluntary confessions recorded on videotape were thrown out when defense attorneys said their client “couldn’t have possibly understood his rights or else he wouldn’t have admitted to this crime.”

Now something even worse has happened. District attorneys and police departments have become very good at abiding by the new rules; procedural mistakes are rare, and D.A.’s are very circumspect in asking for search warrants. There’s only one problem: Now that the police are abiding by the letter of the Supreme Court directives, there are more and more unsolved crimes.

This is the clear and disastrous consequence of the Court’s misinterpretation of the Fourth and Fifth Amendments. As the Fifth Amendment now stands, no one has to cooperate with the police. You don’t even have to give the police your first and last names. If you are caught in a compromising situation or even standing over a bloody corpse, all you have to say is, “Talk to my lawyer.” Your lawyer, of course, will tell you to keep quiet.

But that’s not the difficult part. The real problem is that the police are not allowed to draw any negative inference from this refusal to answer questions. In other words, the police aren’t allowed to think- and that makes a crucial difference when it comes to asking for search warrants. The Fourth Amendment says that “no warrants shall issue, but upon probable cause.” What constitutes probable cause? It can’t be a hunch. It can’t be just circumstantial evidence: The fact that someone is standing over a bloody corpse doesn’t mean he’s done anything wrong; he could have just happened by. If the suspect declines to give any explanation of the circumstances, there may be no grounds for initiating an investigation. Detective work quickly hits a stone wall.

Here’s how it works in practice. On November 7, 1997, Michael Sullivan, a 54-year-old actor and art-gallery clerk, and Camden Sylvia, a 36- year-old artist and real-estate agent, who shared a Lower Manhattan apartment, mysteriously disappeared. Suspicion quickly fell on their landlord, Robert Rodriguez, who ran a locksmith shop on the building’s first floor. Sullivan and Sylvia had long been at odds with Rodriguez over their $300-a-month rent-stabilized apartment. The couple claimed he was not providing them with heat, and had told him that day that they would be withholding their rent.

REPORTS about Lynne Stewart will tell you how sweet and warm and cuddly she is. And it’s true: She’s sweet and warm and cuddly. Heavyset and endearingly disheveled, Stewart comes to court in a faded cotton housedress and likes to refer to people, even relative strangers, as “dear.” You’d never think this charming, grandmotherly figure–someone who refuses to defend childabusers because she believes children are true innocents–would be accused of helping Islamist terrorists. But appearances can be deceiving.

On February 26, 1993, Muslim terrorists set off a powerful bomb in the World Trade Center, killing six people and injuring a thousand. The man widely recognized as the terrorists’ “spiritual leader,” the Egyptian sheikh Omar Abdel Rahman, had previously claimed credit on behalf of his group for the murder of Egyptian president Anwar Sadat and was revered by Osama bin Laden. In July 1993 the “blind sheikh” was arrested on immigration charges. In January 1996 he was convicted and sentenced to life in prison for conspiring to wage a war of urban terror against the United States that included the World Trade Center attack and a foiled plan to simultaneously bomb the U.N. complex and the Lincoln and Holland Tunnels.

Lynne Stewart is the radical leftist lawyer who defended Rahman in 1995 and continued to serve as one of his attorneys thereafter. During the trial she argued the sheikh was not a terrorist but a venerable Islamic scholar who was not responsible for the actions of his followers and shouldn’t be punished “for his outspoken ideas.” Clearly, those responsible for deciding his case didn’t buy it. As Andrew McCarthy, who led the prosecution, documented in the Middle East Quarterly after the trial, Rahman had long incited violence against those he considered “enemies of Islam,” America foremost among them. “Every conspiracy against Islam,” he once said, “its source is America.” He had even issued a warning to this country just a month before the attack: “We must be terrorists and we must terrorize the enemies of Islam and frighten them and disturb them and shake the earth under their feet.” His organization, Gama’a al-Islamiyya, or the Islamic Group, which he had led for over two decades before his imprisonment, was designated a foreign terrorist organization by the State Department in 1997.

The 64-year-old Stewart has now been indicted for helping relay messages between the imprisoned sheikh and members of the Islamic Group in violation of government-imposed security measures. The official charges against her are conspiring to defraud the United States, conspiring to provide and conceal material support to terrorist activity, actually providing and concealing that support, and making false statements (two counts). In just a couple of months, a New York jury will decide whether she’s guilty; if convicted, she could spend over 30 years in prison. Regardless of the verdict, her story is a powerful illustration of how easily radical leftist dissatisfaction with America becomes cheerful support for America’s enemies–even the most destructive of them–and how a so-called defender of the public becomes a defender of the public’s enemies.

A GIRL FROM QUEENS

Stewart’s defense is that she was just doing her job as an attorney –”nothing more than what any lawyer would ever do under any circumstances.” But she also admits that her notion of good lawyering goes beyond the traditional lawyer’s role. She is a self-described “political” or “movement” lawyer, in the mold of William Kunstler and Ron Kuby. Stewart proudly acknowledges that she goes the “extra yard” for her clients–which means being an activist, sometimes breaking the rules, making a client’s cause her own.

To anyone unaware of the alliance between the radical Left and fundamentalist Islam, it may be hard to believe that a ’60s radical would go out of her way to help an Islamist sheikh. Stewart, a Protestant girl from Queens, turned political in the 1960s while working as a public-school librarian in Harlem. There she met her second and current husband, Ralph Poynter, a black militant and then schoolteacher who would later lose his job and serve six months on Rikers Island for assaulting a police officer. Stewart went to law school angry at America for its racial and economic injustices, and after graduating started a criminal practice defending underground groups such as the Ohio Seven and the Black Liberation Army. As those movements dwindled, she moved on to defending individual cop killers and drug dealers, all of whom, according to her worldview, had been in some way betrayed by “the system.”

Having spent her life defending homegrown miscreants, Stewart didn’t know much about the Egyptian sheikh in 1994. But famed radical Ramsey Clark persuaded her to take his case. As George Packer told it in the New York Times Magazine, Clark said that the Arab world would feel betrayed by the American Left if Stewart didn’t step up. And for her, Rahman is a natural fit. Like many of her previous clients, he is a public enemy and a revolutionary: anti-liberal, anti-bourgeois, and most of all anti-American. Stewart has always seen violence as the unavoidable result of the struggle of the oppressed against their oppressors, and though she might not say it explicitly these days, “Amerika” is Oppressor No. 1.

Trial publicity has been an issue since the early days of the Republic.l The concern at its core involves a balancing between protecting the right to a fair trial and safeguarding the right of free expression.2 Trial publicity also implicates important societal interests such as the free dissemination of information, especially concerning the public interests in knowing of threats to safety and information generally concerning judicial proceedings and the public policy involved.3

In adopting the Model Rules of Professional Conduct (”Model Rules”), the American Bar Association (”ABA”) has sought to balance those interests.4 To that end, Model Rule 3.6 limits the public communications of attorneys during an investigation or litigation.5 High-profile cases are most likely to involve concerns under Rule 3.6.6 One such case is that of David Hicks of Australia, who was captured in December 2001, in Afghanistan by the Northern Alliance.7 Hicks was among the first detainees transferred to Guantanamo Bay, Cuba.8 He was the first such detainee to be assigned a military defense attorney,9 and the third detainee to be charged.10 Soon after being appointed as defense counsel for Hicks, United States Marine Corps Major Michael Mori called a press conference at which he denounced the military commission as incapable of granting his client a fair and impartial trial.11

This Note will focus on two extrajudicial statements made by Major Mori. Specifically, this Note will analyze the sources and scope of his ethical responsibilities and whether or not those two extra-judicial statements violated these responsibilities. Part I provides a description of Model Rule 3.6 and its competing purposes, as well as a description of the military trial publicity rules.12 Part II provides a brief history of the military commissions for the Guantanamo detainees and discusses the military commission of David Hicks. Part III analyzes Major Mori’s extrajudicial statements under Model Rule 3.6, Navy Rule 3.6, and the various rules specific to practice in military commissions.13 Part IV concludes that Major Mori’s statements did not violate Model Rule 3.6 and that sanctions against Major Mori for any potential violation under Navy Rule 3.6 or the military commission rules may run afoul of the Constitution.14

I. TRIAL PUBLICITY RULES

Every military attorney is required to be admitted to a state bar, and military attorneys are subject to both the ethical requirements of their respective state bars and their respective military services.15 The following discussion considers these rules as they relate to trial publicity.

A. MODEL RULE 3.616

Model Rule 3.6 includes a general rule against trial publicity, but strives to strike a balance among the interests of the defendant, the attorney, and the public. According to Model Rule 3.6(a):

A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.17

The Rule governs the conduct of lawyers who are involved or have been involved in an investigation or litigation, and includes in this group lawyers in the same firm or government agency.18 Model Rule 3.6 only prohibits extrajudicial statements when the lawyer “knows or reasonably should know”19 that (1) the information will be publicly communicated and (2) “will have a substantial20 likelihood of materially prejudicing an adjudicative proceeding in the matter.”21 Model Rule 3.6 provides three different factors to aid in determining whether this “substantial likelihood test” is implicated. First, part (b) of the Rule provides a list of types of information that a lawyer may publicly communicate, with six types of information that are generally applicable and four additional types applicable only to criminal trials.22 second, Comment 5 to Model Rule 3.6 provides a list of six improper types of extrajudicial statements.23 Finally, Comment 6 considers the importance of the nature of the proceeding in determining whether extrajudicial statements will prejudice the proceeding, finding criminal jury trials to be the most sensitive to extrajudicial statements.24

Model Rule 3.6 does contain an exception for extrajudicial statements made to protect a client from undue prejudicial effect of adverse publicity.25 This exception requires that: (1) the adverse publicity was not initiated by the lawyer or client; (2) a “reasonable lawyer” would believe a statement is required to protect the client from “substantial undue prejudicial effect;” and (3) the statement is limited to the information necessary to mitigate the recent adverse publicity.26

Rule 3.6 addresses a number of competing interests, most notably a balance between a defendant’s right to a fair trial and an attorney’s right to free expression.27 The rule is based on the following three grounds.

INTRODUCTION

In the spring of 2004, federal prosecutors sought the cooperation of Matthew Cooper of Time magazine and Judith Miller of the New York Times in revealing the name of their confidential source who disclosed that Valerie Plame was a Central Intelligence Agency operative.1 Plame’s name was leaked to the press by senior government administration officials, in apparent retaliation for an article Flame’s husband wrote criticizing the administration.2 Cooper and Time eventually cooperated with investigators, but Miller refused to divulge her source and spent eighty-five days in jail for contempt.3

The subpoena of such high-profile journalists comes during a time of low public confidence in the media as well as uncertainty regarding exactly what type of legal protection is afforded to journalists seeking to protect confidential sources.4 This Note advocates the formation of a stronger and broader reaching reporter’s privilege so as to better protect confidential sources. The technicalities of creating the privilege and determining exactly what should lie within the privilege’s scope falls outside the reach of this Note, however. Rather, this Note looks to the well-established and well-maintained attorney-client privilege as a basis for advocating for the strengthening and broadening of the reporter’s privilege-during a time in which it has come under fire-because of the public policy benefits it provides to society.

This Note is divided into three parts. Part I traces the origins and developments of the two privileges, noting the contrast between the attorney-client privilege’s deep roots in notions of a contractual and ethical relationship between attorneys and their clients, and the lack of such a foundation in the reporter’s privilege. Part II summarizes the current state of each privilege, noting that the attorney-client privilege receives broad and uniform treatment in courts, whereas the state of the reporter’s privilege is much more unsettled. Part III points out the problems that arise from application of both privileges and argues that just as the benefits derived from the attorney-client privilege are deemed to outweigh its downsides, so too do the benefits of the reporter’s privilege outweigh the problems that may surface in its application. This section concludes by noting that although the reporter’s privilege may lack strong historical foundations, today it enjoys constitutional, legislative, and judicial support, each of which are strong factors favoring broad recognition.

I. HISTORY AND DEVELOPMENT OF THE PRIVILEGES

A. ATTORNEY-CLIENT PRIVILEGE

The attorney-client privilege precludes disclosure to third parties of communications between attorneys and their clients.5 The privilege’s foundation lies in the contractual and ethical relationship between lawyers and their clients. The concept of the privilege, however, first arose in Roman law, which stated that slaves could not reveal their masters’ secrets.6 Perhaps somewhat unceremoniously grouped with slaves and servants, attorneys too, were not permitted to testify against their “masters,” so as to avoid corruption and promote notions of confidence and trust within a master’s family.7 Elizabetheans in fifteenth century England narrowed the scope of the privilege to protect only communications made in the course of an attorney-client relationship; an attorney, it was reasoned, took a “code of honor” and refused to turn “informer” against a client.8

The rationale underlying the privilege changed in eighteenth century England, as notions of oath and honor to the client were supplemented by the goal of promoting an attorney’s fact-finding process.9 American jurisprudence espoused a similar rationale when it adopted the attorney-client privilege, for its purpose was to “promote freedom of consultation of legal advisers by the clients” and “remove the apprehension of compelled disclosure by the legal advisers.”10 Thus, this aspect of the privilege honors the sanctity of the contractual relationship, based on the theory that the quality of attorney representation relies upon open and frank communication with a client. Additionally, the privilege retains the traditional belief that an attorney takes on an ethical obligation-an “oath”-not to violate a client’s trust and confidence.

B. REPORTER’S PRIVILEGE

The reporter’s privilege protects both the source of information and the information that is provided in confidence to reporters. Unlike the attorney-client privilege, however, the reporter’s privilege lacks the ethical and contractual foundations of the attorney-client privilege. Journalists have sought to protect confidential sources since at least 1848, when a reporter refused to reveal the identity of a source who gave him a draft of a secret treaty.11 Various motivations spurred these early claims for recognizing a reporter’s privilege. First, journalists hoped to elevate the status of their profession. As Stephen Bates argues, the issue of reporter’s privilege first arose during the “dawn of the nation’s age of professionalism,” and journalists who sought a privilege were “equating their work, and its social value” to that of more established professions with certain protections, such as attorneys.12 second, and more persuasively, journalists argued that protecting a promise of confidentiality to a source ensured a greater flow of information to the press; no protection for confidential sources, they reasoned, would result in a chilling effect, causing sources to be afraid to speak with reporters.13 Third, some reporters opted for a more ethical route, claiming that the “norms of their profession” and “personal codes of honor” mandated that they not reveal confidential sources.14 Although early court decisions generally did not recognize a reporter’s privilege, state legislatures began enacting statutory shield laws granting reporters protection of confidential sources as early as 1896.15

Technology and Internet jobs are rebounding with a vengeance in Southern California following a four-year downturn.

The Bureau of Labor Statistics released preliminary data last week showing that Internet services employment in Los Angeles rose 5 percent in the first six months of the year and could rise as much as 9 percent by year-end. Technology employment is seeing a similar increase in the engineering and computer systems design sectors, both up 5 percent.

The dot.com economy that was left for dead in 2001 and caused a severe economic downturn in Silicon Valley appears to be migrating south. Los Angeles is becoming known as a digital media hub and may soon overtake Northern California in the number of tech-related jobs.

Southern California, which includes Orange County and San Diego, employs 418,000 technology workers just trailing the 439,000 technology jobs in Northern California, according to a recent report by the AeA, formerly known as the American Electronics Association, a technology industry trade group.

“Everything we’re seeing shows growth and an upward trend in hiring for the first time since the technology bubble of 2001,” said Matthew Kazmierczak, vice president for research and analysis at AeA.

Ten percent of technology jobs in Los Angeles and Silicon Valley disappeared from 2002 to 2003 after the dot.com bubble burst, the AeA estimates. In 2004, technology employment in California fell 1 percent and has been flat for the past year.

Daniel Gossels, a principal in the media and entertainment practice at Montgomery & Co., said a major sea change is underway because advertising dollars are shifting from TV networks, newspapers and magazines to the Internet, which is changing traditional patterns of media consumption. That, in turn, has prodded many large companies to snap up entrepreneurial firms rather than build their own Web properties from scratch.

“It’s a fundamentally different environment,” said Gossels, who worked as an advisor last year on the sale of teen online hangout MySpace.com to News Corp.’s Fox Interactive Media. “We’re still really early in the cycle.”

Broad range

Rafat Ali, publisher and editor of PaidContent.org, a Santa Monica-based Web site that covers digital media, said there’s a much broader range in the terms of the types of Internet jobs being created now compared with five years ago.

“Money is finally coming back into the industry after the first wave of the dot.com boom,” he said. “We’re seeing all of these business models morphing, and that means companies need people with expertise and are hiring from a wide range of industries.”

The current Internet economy is creating jobs with a creative list of new titles: podcast producer, search engine optimization analyst, digital media manager and email content producer, to name just a few. The jobs are being created by a plethora of companies, from search engine Yahoo! Inc. to phone giant AT&T Corp., which are creating their own original content to attract advertisers and viewers to their Web sites.

Tracking Internet employment is particularly difficult because government data often lags the market by 18 months.

In an effort to determine if Internet and technology employment is really on the rise, Kazmierczak, the researcher with AeA, began trolling the Web sites of Microsoft Corp., Intel Corp. and others, tracking the number of job postings online. He said hundreds of technology and Internet companies are in hiring mode and not all of the jobs are being captured by government statistics. Many tech or Internet jobs–a Web manager at an auto dealer, for example–don’t show up in the figures, but are instead listed as part of the employer’s sector.

On the tech side, several sectors appear to be in high demand including consumer electronics testing and design, engineering services, defense electronics and electro-medical equipment manufacturing. Only telecommunications, once a hot industry in Los Angeles, continues to lag.

Double bubble?

Michael Leigh, founder of Technology MarketForce Inc., in Malibu, and a former chief operating officer of network switching company Tekelec, said he sees some signs of potential trouble ahead, however. Too many companies are once again chasing too few deals, he said, and paying exorbitant prices for firms that many not be tested in the marketplace.

“It’s still a bit patchy in certain segments because there are too many companies being funded in IDTV (integrated digital television) content and mobile entertainment content,” he said. “So the question being raised is whether we’re headed into another bubble economy.”

Dan Rohn, a former copy editor with the Washington Post who created the web site JournalismJobs.com, said in his segment of the industry only one out of every seven job postings online are for Internet-related jobs and that online content is still predominantly controlled by newspaper publishing. The general perception is that online media is slowly gaining on, and will someday overtake traditional media, but Rohn said it hasn’t happened yet.