The United States Court of Appeals for the Fifth Circuit has handed down a ruling against both a client and his lawyer for the violation of a gag order. The ruling against Don Hill, the former Dallas official, and his lawyer, Ray Jackson, could have implications for lawyers defending their clients in public against alleged governmental misconduct. Hill was given 30 days on top of the 18-year prison sentence in 2009 for corruption and Jackson was given a $5,000 fine levied by the trial court as well as a 120-day suspension from any client appointments in the Northern District of Texas

The decision below concerns a trial where Hill, an African-American, was convicted of shaking down white developers who wanted to build affordable housing in the city. Hill and Jackson gave an interview that the court felt threatened the ability to find an impartial jury:

On June 18, four days before trial, Hill and Jackson participated in a television interview conducted by Gary Reaves, a local news station reporter. Ken Carter, the public relations representative for Hill, had arranged the interview. Before the interview, Jackson, Vital, and Carter discussed ground rules. Although the rules were not memorialized in writing, the rules purportedly prohibited Reaves from asking questions about the pending criminal case or about the Hills’ personal lives. Reaves allegedly agreed to the rules.

During the interview, Hill made statements that Jackson suspected were in violation of the gag order. Jackson testified that he had become uncomfortable with the nature of the interview almost immediately, but he allowed the interview to continue. Jackson also was questioned and made statements regarding the case. . . .

One of the questions asked of Hill by Reaves was: “If you’re not guilty, why do you think you’re getting prosecuted?” Hill answered,

And what I’ve said, and I’ve expressed it several times, is that we can now look in hindsight and see that local Democratic officials were targeted by the FBI and the Justice Department under our last president, Mr. Bush, so that now we can look back and see a clear statistical and anecdoctal body of evidence that shows that that was what was happening. So I respect the role that the government plays in investigating [] wrongdoing or alleged wrongdoing, I don’t think I can walk away from the fact that I fit the pattern that was exhibited by this Bush Justice Department of being a local Democrat, being on the rise, and being told by an agent when he first meets me that my political career is over with. I think, in part, I’m here because I was targeted . . . The jury will have to look at the evidence and the facts and what people say from the witness stand, and that won’t deal with very much, if anything, about local Democrats or politics, it will just deal with whether Don Hill and Sheila Hill did anything that was wrong and improper. And I can sit here with a certainty, looking at you right now and say to you that we didn’t. And I am convinced that we’re going to be exonerated. (Emphasis added).

The district court found that Hill’s earlier motion to dismiss the indictment because of selective prosecution did not use the phrase or concept of “clear statistical and anecdoctal body of evidence,” nor did that appear in other pleadings. The court held that the assertion there was proof of government bias exceeded the public record and threatened the fairness of the trial.

After Hill completed his interview, Jackson then was asked a number of questions by Reaves. The district court held that Jackson’s answers to three of the questions violated the gag order. We consider only one of the answers. The question posed by Reaves was “What do you think about [Hill’s] claim that this whole prosecution is politically motivated?” Jackson answered,

Well, that’s – that’s been the claim since the beginning. That’s been a claim of several people around the country. I can’t – I can’t particularly speak to that, because I don’t know. But I know that there are several people who have made the claim and then there’s been several people who have shown that during the Bush Administration that Democrats were targeted.

The district court concluded, “Jackson did not purport to quote from Hill’s overruled Motion to Dismiss [for Selective Prosecution], but contended that the prosecution was politically motivated, and implied it was connected to a larger scheme by the Bush Administration.” The statements, the court insisted, “could have prejudiced the venire and interfered with a fair trial . . . .”

The case turned on whether the gag order suffered from the same constitutional infirmities as the one in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). The Court ruled:

An attorney’s duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.

The rule in the Gentile case was Nevada Supreme Court Rule 177:

Trial Publicity

“1. A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

“2. A statement referred to in subsection 1 ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates to:

“(a) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;

“(b) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement;

“(c) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;

“(d) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;

“(e) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial; or

“(f) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

The Court found that language to be unconstitutional in its scope and ambiguity.

Here is the pertinent language of gag order in the Hill case:

2. No person covered by this order shall make any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record, that could interfere with a fair trial or otherwise prejudice Defendants, the Government, or the administration of justice. . . .
4. Parties may discuss, without elaboration or any kind of characterization, information contained in the public record; scheduling information; and any discussion or order by the Court that is a matter of public record.

I have serious free speech concerns over the implications of such gag orders. The Justice Department routinely holds press conferences and leaks information on cases without any penalty or even inquiry from the courts. Moreover, the allegations of governmental misconduct in a case can be part of an attorney’s duty of zealous representation of his client. The client himself has a first amendment right to defend himself and his reputation. Courts have been increasingly imposing highly restrictive gag orders on parties that threaten core free speech rights, in my view. Here is the press release issued by the Justice Department against Hill — allegations that he was responding to in this interview.

Here is the opinion: 5th_Circuit_opinion

Jonathan Turley