Defense Articles

THE IMAGES, DEFENSE Secretary Donald Rumsfeld told Congress, depict “acts that can only be described as blatantly sadistic, cruel, and inhuman.” After Sen. Saxby Chambliss (R-Ga.) viewed some of them in a classified briefing, he testified that his “stomach gave out.” NBC News reported that they show “American soldiers beating one prisoner almost to death, apparently raping a female prisoner, acting inappropriately with a dead body, and taping Iraqi guards raping young boys.” Everyone who saw the photographs and videos seemed to shudder openly when contemplating what the reaction would be when they eventually were made public.
But they never were. After the first batch of Abu Ghraib images shocked the world on April 28, 2004, becoming instantly iconic–a hooded prisoner standing atop a box with electrodes attatched to his hands, Pfc. Lynndie England dragging a naked prisoner by a leash, England and Spc. Charles Graner giving a grinning thumbs-up behind a stack of human meat–no substantial second round ever came, either from Abu Ghraib or any of the other locations in Iraq, Afghanistan, and Guantanamo Bay where abuses have been alleged. ABC News broadcast two new photos from the notorious Iraq prison on May 19, The Washington Post printed a half-dozen on May 20 and three more on June 10, and that was it.
“It refutes the glib claim that everything leaks sooner or later,” says the Federation of American Scientists’ Steven Aftergood, who makes his living finding and publishing little-known government information and fighting against state secrecy. “While there may be classified information in the papers almost every day, there’s a lot more classified information that never makes it into the public domain.”

It’s not for lack of trying, at least from outside the government. Aftergood, for example, sent a Freedom of Information Act request to the Defense Department on May 12, asking generally for “photographic and video images of abuses committed against Iraqi prisoners” and specifically for the material contained on three compact discs mentioned by Rumsfeld in his testimony. The Defense Department told him to ask the U.S. Central Command, which sent him back to Defense, which said on second thought try the Army’s Freedom of Information Department, which forwarded him to the Army’s Crime Records Center, which hasn’t yet responded. “It’s not as if this is somehow an obscure matter that no one’s quite ever heard of,” Aftergood notes.

Officials have given two legal reasons for suppressing images of prisoner abuse: “unwarranted invasion of privacy” and the potential impact on law enforcement. The Freedom of Information Act’s exemptions 6 and 7 (as these justifications are known, respectively) have been used repeatedly to rebuff the American Civil Liberties Union (ACLU), which since October 2003 has unearthed more than 600 torture-related government documents but zero images.

The privacy objection is easily answered: Why not just obscure any identifying features? The law enforcement question, which has a firmer legal footing, is whether distribution of the images could “deprive a person of a fair trial or an impartial adjudication.” Yet even there, the globally publicized photographs of Charles Granet, for instance, were ruled by a military judge to be insufficient grounds to declare his trial unfair. And Graner, sentenced to 10 years for his crimes, is the only one of the eight charged Abu Ghraib soldiers to contest his case in court.

“We’ve seen virtually no criminal investigations or criminal prosecutions,” says ACLU staff attorney Jameel Jaffer, who plans to challenge the nondisclosure in court. “The vast majority of those photographs and videotapes don’t relate to ongoing criminal investigations; on the contrary they depict things that the government approved of at the time and maybe approves of now.”

Legalities are one thing, but the real motivation for choking off access is obvious: Torture photos undermine support for the Iraq war. In the words of Donald Rumsfeld, “If these are released to the public, obviously it’s going to make matters worse.”

The Abu Ghraib photos did more to kneecap right-wing support for the Iraq war, and put a dent in George Bush’s approval ratings, than any other single event in 2004. Conservative New York Times columnist David Brooks wrote two glum pieces about “the failure to understand the consequences of American power”; The Washington Post’s George Will called for Rumsfeld’s head; blogger Andrew Sullivan turned decisively against the president he once championed; and Sen. John McCain (R-Ariz.) warned: “We risk losing public support for this conflict. As Americans turned away from the Vietnam War, they may turn away from this one”

News analyses about the war coalition’s crackup competed for front-page space with the Abu Ghraib reports for nearly two weeks, until a videotape emerged showing American civilian Nick Berg getting his head sawed off in Iraq. Suddenly, editorialists were urging us to “keep perspective” about “who we’re fighting against.”

Defamation laws allow people to sue for statements that damage their reputations and expose them to hatred, ridicule or contempt.1 However, some courts have ruled people can have such poor reputations they cannot sue for libel. Courts have contended that because the best result these “libel-proof plaintiffs” could obtain would be nominal-damage judgments, it would be unfair to require media outlets to go through trials. Consequently, Hemphill, Stevens and Youm noted that the libel-proof-plaintiff doctrine rests on the common-law principle that without damage to reputation, there is no defamation.2 Nearly all people classified by courts as libel-proof plaintiffs were convicted of multiple felonies. In Jackson v. Longcope, a convicted murderer sued the Boston Globe for reporting he had raped and strangled all his victims, and a shoot-out with police occurred during a stolen-car chase.3 Jackson contended he had raped and strangled only some victims, and the car was not stolen. The Supreme Judicial Court of Massachusetts, Suffolk, dismissed the case.4However, most courts won’t apply the doctrine to people with minor convictions. Frank J. Marcone sued Penthouse for calling him “an attorney criminal” and narcotics dealer.5 Penthouse argued Marcone was libel-proof because he was fined $200 for assault and battery on an officer and was indicted on drug and tax-evasion charges. The drug charges were dropped, and there was a hung jury on the tax-evasion charge. Thus, the court did not consider him libel proof.6 In addition, most efforts to apply the doctrine to noncriminals have failed. Time used this defense when Ariel Sharon sued over a report he anticipated-but did not prevent- of a Palestinian camp massacre. The court said Sharon’s reputation was damaged by the article’s unchallenged facts. Nevertheless, it said he was not libel-proof.7

This paper reviews how courts have ruled on the libel-proof-plaintiff doctrine. The paper also analyzes the doctrine’s viability following the U.S. Supreme Court’s ruling in Masson v. New Yorker Magazine, which repudiated part of it.8

Literature Review

The libel-proof-plaintiff doctrine has generated considerable controversy since the U.S. Court of Appeals, Second Circuit, adopted it in June 1975.9 In particular, judges have struggled to define who is libel-proof. One author contends the doctrine should apply when plaintiffs were convicted for behavior similar to that described. For instance, a convicted bank robber who was called a thief would not be libeled. In contrast, a bank robber who was called a murderer would be.10 Peyton counters that court rulings have been arbitrary and contradictory on who is libel-proof.11 In particular, the U.S. Court of Appeals, Sixth Circuit, ruled James Earl Ray was libel-proof but found William Brooks, who had been convicted of breaking and entering, grand larceny, firstdegree manslaughter and carrying a concealed weapon, was not.12

Furthermore, authors disagree on whether plaintiffs without convictions are libel-proof. One author argues repeated, uncontested publicity should prevent plaintiffs from pursuing libel cases. For example, widely reported civil judgments would make plaintiffs libel proof on similar matters.13 Weaver counters the doctrine should not apply if the allegations were not substantiated. In Ronald A. Schiavone v. Time, the U.S. Court of Appeals, Third Circuit, ruled a businessman linked to organized crime in hundreds of stories-but never convicted-was not libel-proof.

Most research on the libel-proof-plaintiff doctrine was completed before the Supreme Court’s ruling in 1991 in Masson v. New Yorker Magazine, which repudiated part of the doctrine.14 Consequently, it is important to examine how courts have ruled on the doctrine since then.

Research Question, Method and Limitations

RQ1:

What is the current state of the libel-proof-plaintiff doctrine?

State and federal cases involving the doctrine were examined. Cases were identified by searching legal and communication databases, cross referencing rulings, reviewing the Media Law Reporter and using the West key number system.

This paper only addresses the First Amendment issues associated with the doctrine. There were two data limitations. There is not extensive case law, and some cases were resolved at trial court, and decisions weren’t published.

Results

Judges divide libel-proof cases into two categories: issue-specific and incremental-harm cases. With issue-specific cases, a court examines whether a plaintiff’s reputation is so damaged with regard to an issue that he or she is libel– proof concerning it. For example, a U.S. district court ruled James Earl Ray’s reputation was so damaged by his assassination of Dr. Martin Luther King, Jr., he could not be libeled by books recounting his life before it.15 In contrast, with incremental-harm cases, a court examines the entire story to measure the harm caused by the alleged libel. As Peyton and Daly noted, if the court finds the challenged statements cause the plaintiff no more harm than the unchallenged statements, the case may be dismissed because there has been no reputational damage.

DELTA — After she shot and killed her husband, prosecutors say Carole Alden dragged Martin Sessions’ body out into the back yard behind their double-wide trailer where she had dug a grave.

Then she called 911 and told an emergency dispatcher that she had killed him. Police already knew, because they had been contacted by a friend of Alden’s, whom she called after her husband’s death. Deputies said he told her to call police and then made the call himself.

“When officers arrived at her home, they discovered Sessions’ body in the back of the house, lying next to a large, grave-shaped hole,” assistant Utah attorney general Thomas Brunker wrote in court documents obtained by the Deseret Morning News.
Under questioning by Millard County sheriff’s deputies, Alden said she killed Sessions because he had physically abused her and threatened to kill her. Deputies said she shot him several times with a handgun.

“She told us she was in fear of her life and safety,” Millard County Sheriff Robert Dekker said at the time of the crime in July 2006.

In a murder case that sounds like the Dixie Chicks’ song “Goodbye Earl,” Alden’s defense lawyer is expected to argue today that the Millard County artist suffers from battered-spouse syndrome.

Alden is scheduled to appear in Fillmore’s 4th District Court today for a preliminary hearing. There, a judge will decide if there’s enough evidence to make her stand trial for domestic violence murder, a first-degree felony; obstruction of justice, a second-degree felony; and desecration of a body, a third-degree felony.
According to search warrant returns obtained by the newspaper, police seized a Smith & Wesson .38-special handgun from the front porch and several spent bullets from inside the trailer home. In a car, deputies found a pawn shop receipt dated July 28, for $191.41.

“Possible purchase of handgun,” Millard County Sheriff’s Lt. Roger Young wrote in the search warrant return. Prosecutors believe Alden killed her husband the same day the weapon was purchased.

The search warrant indicates deputies were also looking for a letter from Carole Alden to her husband. In the home, deputies said they found a handwritten note that said “I’ll be back to get more stuff.” They also found a letter Martin Sessions wrote to his wife while he was in the Millard County Jail in 2003.

In court documents, prosecutors and Alden’s public defender argue about how cooperative she was, indicating that she answered a few questions for police and even drew them a diagram of the crime scene.

Meanwhile, Millard County prosecutors are fighting to have Alden’s defense attorney booted from the case because of a conflict of interest.

In 2005, Martin Sessions struck a plea deal in the West Millard Justice Court for a domestic violence assault charge involving a fight with Alden. He was ordered to attend anger management classes and pay a fine.

Sessions’ attorney was James Slavens, who is now representing Alden.

“The mere appearance of impropriety, let alone the evidence … should be reason enough for this court to disqualify Mr. Slavens,” Millard County deputy attorney John Holliday wrote in a motion filed with the court.

The motion was denied by Judge Donald Eyre but then appealed by the Utah Attorney General’s Office to the Utah Supreme Court and the state Court of Appeals. The Court of Appeals has denied the request. The Supreme Court is still considering it.

“The general public’s reaction of having him represent Alden … ,” Brunker said in a recent interview.

Slavens is the only public defender for Millard County, court clerks said. Indeed, the population is so small that Eyre has ordered search warrant affidavits and probable cause statements by police sealed to prevent tainting the jury pool in this rural county.

Slavens declined to comment to the Deseret Morning News, but in court papers and hearings, he has fought against efforts to get him kicked off the case.

“The State’s actions has the following effects which create tactical advantages,” Slavens wrote in a motion filed in September. “1) Carole Sessions sits in jail, which allows them to monitor every word she speaks or writes; 2) creates doubts in her own mind about the adequacy of her attorney; 3) creates questions among the potential jury pool about the adequacy of her attorney and thus any defense; and 4) seriously jeopardizes the defendant’s due process rights to gather evidence and prepare for her defense of this very serious matter.”

In an Aug. 16 hearing, the judge defended Slavens to Alden, who appears simply to want a good lawyer.

Four years ago, an adult woman informed her local diocese that a recently ordained priest had groped her.

No criminal or civil charges were filed, but the initial investigation showed that the accusation was plausible–that it could have happened, recalled Fr. Michael Sullivan, a Minneapolis-St. Paul priest and canon lawyer who previously served as judicial vicar in the Crookston, Minn., diocese.

The diocesan review board, said Sullivan, eventually determined that the accusation “was a trumped-up charge.” The priest, said Sullivan, had “spurned her affections,” informing her “that I’m a celibate and we’re not going there.”
Still, said Sullivan, the bishop rejected the review board’s determination and did not allow the priest to return to public ministry. The priest has appealed the bishop’s ruling, but the case, said Sullivan, is “swallowed up in Rome.” The priest currently receives no pay or medical benefits from the diocese, said Sullivan.

The details differ from case to case, but it’s a story Sullivan says he has heard countless times. Due process for priests accused of abuse, he says, is a sham.

Nearly five years after the U.S. bishops approved national policies to remove sexually abusive diocesan priests from public ministry, critics of the process say the system is broken–shielding some abusers from the consequences of their actions while simultaneously failing to ensure the rights of the accused, who are presumed innocent under both church and criminal law.
As written, the procedures (called “canonical norms”) approved by the Vatican in 2002 and promulgated by the bishops provide a seemingly fair-minded step-by-step process for bishops and the Vatican’s Congregation for the Doctrine of the Faith to determine the credibility of an abuse accusation. The procedures also provide for measures to remove the offender from ministry if the charges are proved. The norms call on dioceses to establish written policies to deal with accusations against clergy and to report credible allegations to local law enforcement.

Under the procedures, a diocesan official designated by the bishop (typically the chancellor or vicar general) conducts an initial investigation to determine if an allegation is “credible” or “substantive.”

“That level of being ‘credible’ is a low level of certainty,” said Michael Ritty, a canon lawyer who has worked with accused priests on about 250 such cases over the past five years. “I have seen it as low as the priest happened to be in the [same] parish at the time this person made this allegation–that it was geographically possible. That might have been the only proof [necessary] to go forward.”

In fact, in many cases, the standard of judging credibility is even lower than that, said Sullivan, who chairs the board of Justice for Priests and Deacons, a seven-year-old organization whose 90 affiliated canon lawyers have assisted approximately 540 priests and deacons, the vast majority of whom face allegations of sexual abuse.

Presumption of guilt

“The assumption is that [the allegation] must be correct because nobody would [come forward] otherwise and therefore the priest ends up being perceived as guilty almost all the time because it is pretty difficult to prove you have not done something,” said Sullivan. “So the presumption has switched from [the accused] being innocent to being guilty,” said the priest. “I’m reminded of the Salem Witch Hunts.”

Others dispute the idea that an accusation is tantamount to a guilty finding. Five years ago 90 percent of abuse allegations against priests were found to be credible, a number that is down to 40 percent today, Patricia O’Donnell Ewers, chair of the National Review Board established by the bishops to oversee implementation of diocesan child protection plans, told a parish gathering in North Naples, Fla., March 29.

In 2006, 630 “credible allegations” of sexual abuse by clerics against minors were reported, according to the 193 dioceses that responded to a Center for Applied Research in the Apostolate survey released earlier this month. The vast majority of cases reported relate to abuse that allegedly occurred prior to the 1990s.

“A total of 22 priests or deacons were returned to ministry in 2006, based on the resolution of an allegation made during or prior to 2006,” CARA reported, while “156 priests or deacons (36 identified in 2006 and 120 identified before 2006) have been temporarily removed from ministry pending completion of an investigation.”

A flawed process

If an allegation is deemed credible in the preliminary investigation, the case is then referred to the diocesan review board. Across the nation diocesan review boards are largely lay committees established as part of the 2002 reforms. Their job is to investigate, to gather evidence (through interviews and documentation) and to give the bishop their opinion as to whether the accusation is substantive. “The priest is supposed to receive canonical advice at this time and be able to review the charges against him so he can respond to them,” said Sullivan, but he is instead frequently blind-sided, forbidden in some cases from even knowing the name of his accuser or the nature of the accusation.

THE SUPREME Court’s decision not to consider, for now, the denial of appeal rights for foreign prisoners at Guantanamo Bay, when combined with the results of the first criminal case held there, vividly demonstrates the folly of the legal scheme for detainees that Congress hastily approved last year. David Hicks, the 31-year-old Australian who was the first person to be brought before the special military commissions Congress sanctioned, escaped with a plea bargain that will free him after he serves nine more months in an Australian prison. Mr. Hicks pleaded guilty last week to a terrorism charge; a prosecutor described him as ”an enemy” who was ”trying to kill Americans.
Yet while Mr. Hicks goes home, nearly 300 Guantanamo inmates who almost certainly will never be charged with any crime continue to face indefinite detention, without the right to challenge their imprisonment under the ancient right of habeas corpus. Their only recourse is the review panels set up by the Pentagon, where they cannot be represented by lawyers and don’t have access to the classified evidence that is often used against them. Some may be genuinely dangerous militants; some are almost certainly victims of mistaken identity or men who fit the description Mr. Hicks’s lawyer gave of him — a hapless ”wannabe” who never tried to kill anyone.
Far from resolving the mess at Guantanamo, Congress’s decisions and the Bush administration’s use of them has deepened the quagmire. Senior al-Qaeda suspects formerly held in secret CIA prisons are finally being produced for quasi-public hearings — but the administration is censoring their allegations of torture, which only strengthens suspicions that the CIA is covering up illegal activity.

Secretary of Defense Robert M. Gates was right when he told a congressional hearing last week that ”there is a taint” about Guantanamo and that trials there ”lack credibility” in ”the international community.” Mr. Gates said he’d like to see Guantanamo closed and Congress pass new legislation to govern those prisoners who must still be held. Those are good goals that may take time to reach. That’s why Congress should take the immediate remedial action that is available: restoring habeas corpus appeal rights to all prisoners at Guantanamo.

THE SUPREME Court’s decision not to consider, for now, the denial of appeal rights for foreign prisoners at Guantanamo Bay, when combined with the results of the first criminal case held there, vividly demonstrates the folly of the legal scheme for detainees that Congress hastily approved last year. David Hicks, the 31-year-old Australian who was the first person to be brought before the special military commissions Congress sanctioned, escaped with a plea bargain that will free him after he serves nine more months in an Australian prison. Mr. Hicks pleaded guilty last week to a terrorism charge; a prosecutor described him as ”an enemy” who was ”trying to kill Americans.”
Yet while Mr. Hicks goes home, nearly 300 Guantanamo inmates who almost certainly will never be charged with any crime continue to face indefinite detention, without the right to challenge their imprisonment under the ancient right of habeas corpus. Their only recourse is the review panels set up by the Pentagon, where they cannot be represented by lawyers and don’t have access to the classified evidence that is often used against them. Some may be genuinely dangerous militants; some are almost certainly victims of mistaken identity or men who fit the description Mr. Hicks’s lawyer gave of him — a hapless ”wannabe” who never tried to kill anyone.
Far from resolving the mess at Guantanamo, Congress’s decisions and the Bush administration’s use of them has deepened the quagmire. Senior al-Qaeda suspects formerly held in secret CIA prisons are finally being produced for quasi-public hearings — but the administration is censoring their allegations of torture, which only strengthens suspicions that the CIA is covering up illegal activity.

Secretary of Defense Robert M. Gates was right when he told a congressional hearing last week that ”there is a taint” about Guantanamo and that trials there ”lack credibility” in ”the international community.” Mr. Gates said he’d like to see Guantanamo closed and Congress pass new legislation to govern those prisoners who must still be held. Those are good goals that may take time to reach. That’s why Congress should take the immediate remedial action that is available: restoring habeas corpus appeal rights to all prisoners at Guantanamo.

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.

The American Bar Association (”ABA”) Model Rules of Professional Conduct (”Model Rules”) guide an attorney in his relationship with the media.’ The standards articulated in the Model Rules strive to maintain the delicate balance between the defendant’s right to a fair trial, the public’s right to safety and to knowledge of the trial, and the attorney’s right to free speech.2 Failure to abide by the rules of the jurisdiction can result in criminal sanctions and even disbarment. Most trials fail to attract media attention; however, those few high-profile cases test the effectiveness of the standard.4

This note will consider whether, in a media-saturated society, it is possible to preserve a defendant’s right to a fair trial in a high-profile case. It will specifically consider whether the prospective defendant in the Anthrax case and the defendants in the Sniper case could obtain a fair trial after all the media attention the cases have received.5 Part I will provide a background of the competing interests surrounding trial publicity and the history of Model Rule 3.6, including current standards governing lawyer communication with the media. Part II will lay out the differing expectations of the bar, as expressed in Rule 3.6, for prosecutors and defense attorneys when communicating with the press in light of the special duties and functions of each attorney. Part III will introduce two recent high-profile cases, consider the actions of each attorney involved in light of the duties enunciated in Model Rule 3.6, and pose the question and evaluate whether the defendant or defendants in each case may be able to obtain a fair trial. Finally, in addition to the limits on extrajudicial speech considered in the other sections of this note, Part IV will consider alternative remedies of ensuring a fair trial to defendants involved in high-profile cases.

I. BACKGROUND

A. COMPETING INTERESTS SURROUNDING TRIAL PUBLICITY

Many competing interests are involved in the debate about trial publicity. The most discussed interests are the lawyer’s First Amendment right to free speech and the defendant’s right to a fair trial.6 Other issues include the public’s right to know,7 the prosecutor’s right to enlist the aid of the public in performing his law enforcement function,8 the professionalism of the legal community,9 and the lawyer’s right not to speak.10

The lawyer’s first duty is to be an advocate for his client.” This duty, in turn, implicates the right of the attorney to speak on the client’s behalf.12 The attorney’s right to free speech is not absolute, however.13 For example, where the lawyer’s duty to advocate for his client or speak on his client’s behalf conflicts with a court order not to speak, the attorney must abide by his duty as officer of the court - the lawyer is not above the law.14 Prosecutors, in particular, whose client is the public, are limited by conflicting duties to their client and to the justice system: prosecutors may not speak where such speech would prejudice a trial.15

Under American constitutional law, this result may seem counterintuitive, for the classic justification against censorship provides that the remedy for bad speech is not prior restraint of such speech but rather more speech.16 This presumes a faith in the public and its ability to weed out unsound speech from sound speech.17 Accordingly, the best speech, which makes the most sense, should win out in the marketplace of ideas.18

It is not clear whether a further restriction on attorney speech would withstand constitutional scrutiny. Technically, however, the First Amendment applies only to government restraint on speech,19 and it is not the government but the bar which restricts the speech of its attorneys.20 Accordingly, when the bar, which is not a government actor, chooses to restrain attorney speech, the First Amendment may allow the restraint.21

Scholars disagree about the desirability of a rule limiting attorneys’ speech about trials in which the attorneys are involved. Professor Judith L. Maute believes that “[cjriminal cases should be tried in court, not in the media. Period.”22 Maute would “urge” all attorneys involved in the administration of criminal justice “steadfastly to refrain from all, or practically all, extrajudicial communications about the case.”23 Such silence would promote public confidence in the integrity of the criminal justice system and the outcome of trials by supporting a belief that the trials were “fundamentally fair” based on the procedure involved.24 Because the media’s objective is to report a newsworthy (and possibly sensational) story, the result of speech is very rarely helpful to the defendant in a criminal proceeding.25 Furthermore, silence would prevent lawyers whose interests are tainted by a desire for their own publicity from prejudicing their clients’ chances of obtaining a fair trial.26

Another justification for limiting attorneys’ speech is the promotion of the long-term interests of criminal defendants as a class.27 Professor David A. Strauss has argued that, as a general rule, defense attorneys likely would be “unwilling to appear to lend their personal reputation and credibility … to their client’s cause.”28 A defense attorney’s job is to represent his clients in court, not to vouch for his clients’ characters out of court.29 Moreover, even a defense attorney who would be willing to speak may appear to “lack . . . enthusiasm” in his client’s cause; and failure to speak in a society where out-of-court advocacy is the norm risks damaging the interests of the defendant in the courtroom.30