Fifth Circuit Rules Against Lawyer and Client in Public Criticism of An Indictment and Its Motivations

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

29 thoughts on “Fifth Circuit Rules Against Lawyer and Client in Public Criticism of An Indictment and Its Motivations”

  1. OS,

    Can you imagine what it must be like to be married to her? Aw, man . . . there goes any chance I had of sleeping well tonight. I bet holidays are a blast too.

  2. Wasn’t trying to “piss him off”. Sorry you are p.o’d at me. Leave my family out of this.

    even if the judge was p.o.’d he was supposed to stick to rule 42

  3. I dunno, BIL. When you piss off a Federal Judge, that is sort of like throwing stones at Goliath. Except where David hit him in the head, Kay just keeps thumping the Judge in the ‘nads and pissing him off. That squishy sound you will soon hear is the full weight of the United States sitting on her.

    I feel sorry for her family. Can you imagine what it must be like to be married to her?

  4. kay,

    “What makes you think it was a legally issued order?”

    Because it was within his legal authority as defined by statute and case law and remained legally enforceable until overruled by the circuit court en banc or the SCOTUS. Judicial orders may be issued sua sponte. If you were really competent to represent anyone let alone yourself, you’d know what that means. The literal Latin translation is “of one’s own will”. Judges issue sua sponte orders all the time and for various reasons. To recuse themselves. To dismiss or transfer a case citing lack of jurisdiction. To ensure compliance with process. To issue temporary adjournments. And, yes, to hold those parties in contempt – civil or criminal – who are disrupting the court and/or wasting their time. This applies not just to officers of the court, but ANYONE present and/or party to the case. Including you. That power in Federal court is statutory and you know which one it is that grants that authority. Or you ought to by now. The question about statutory authority in the scope of issuing sanctions has been answered, but you’re just too stupid or crazy to realize it comes from valid Federal common law, not statute. Your desires for a rule in the form of a statue are irrelevant.

    Seek professional psychological help.


    Learn to differentiate between throwing stones at Goliath and tilting at windmills.

    Kay is most certainly in the later category and not the former.

  5. LH,

    Guess what…Kay dug her own bed…she has lied here and then plays victim..This is Bullshit…and changes her story to fit the audience…I am pleased she has a friend…that she needs…Advise her to seek an attorney licensed to practice in Colorado.. I cannot help…even Pro hac Vice..Do her a favor…if you are her friend..

  6. BIL

    You may are may not be correct in your analogy. Having endured a corrupt system far beyond Kay’s case – but of the same type character – I can empathize with her.

    Having also followed her case from afar; I am fully aware that the findings of facts, conclusions of law and decisions in her case were erroneous and therefore illegal.

    She still stands tall and is throwing stones at Goliath, which is more than can be said for most of us.

    I wish her well in her pursuits, have encouraged her to tone down and focus on a goal; and have even offered my assistance.

    We can not make a difference, by standing on the sidelines and barking at the abused!

  7. BIL — What makes you think it was a legally issued order? Why do you keep saying that, even though you have decided you don’t care and don’t like me? Don’t you believe that an order requires a motion and a motion requires a rule or a statute and that if a judge wants to issue a motion to extend beyond the case, an injunction, he is bound by the AntiInjunction Act and a statute is required?

    In this case, the Court relied on the Rules of Professional Conduct at least for the lawyer, as a basis for prior restraint. Unless I am missing something I don’t see a basis for the order against the criminal defendant though.

  8. laserhaas,

    The problem here is that any injustice that may have initially been done to kay has been far removed from being remedied by her own incompetence to represent herself and her arrogant refusal to follow a judge’s legally issued order. Her wound is self-inflicted. She acted like a smartass and the judge hit her with one of the biggest sanctions possible. You poke the bear – even if the bear was a scumbag – and you will get bit. There are several ways to address a judge you feel is biased. Pissing them off by ignoring a direct and lawful order isn’t one of them nor is trying to do an endrun around them by refiling in another jurisdiction.

  9. Apparently, you are the Who that does not care or do!

    Kay will learn, that there are ways to tell your story; to endear. But your apathy and cold hearted ways are one of the reasons the bullies/powers that be – can get away with what they do.

    Injustice tolerated against the few is the virus that spreads such injustices against the many!

  10. If you were in Kay’s shoes – you would feel that your life has been jacked!

    It does seem that there is a double standard. Kay endured cronyism and corruption from the notorious Judge Nottingham and gang. Their false allegations are allowed top billing – despite being erroneous.

    Yet this case of a guy – clearly having a prima facie case of politico prosecution; is gagged and sanctioned for speaking his own thoughts.

    Apparently there is a double standard.

  11. Here comes another thread jacking….. I wonder if we ignore her she will go away….I wonder…

  12. I filed a motion in federal court to get articles removed from the Internet that referred to my being criminally charged in the past and the date of a trial, but didn’t acknowledge that the charges were dismissed and the trial cancelled, nor that I wasn’t arraigned, there was no written statement of probable cause and no government lawyer signed anything to initiate the prosecution.

    The lawyer for the publisher was opposed and filed an objection to that claiming basically that there was a First Amendment Right to publish anything they wanted about me. I called the newspaper and the assistant editor said that they could publish anything they wanted about me and that there was nothing I could do about it. And I was not a criminal defendant at that time, was not in pubic office, nor an entertainer or any sort of public figure, AND this was not even news, something only published on one newspaper, AND they went out of their way to put it up on the Internet just to hurt me.

  13. The game is rigged, and always will be rigged; until we care enough about our fellow man/woman – to stand up and say NO.

    This case, Siegelman and AL prosecutions by Bush’s USA Canary, the NJ prosecutions by Christie – are all a perversion of the power granted to public servants within the system of justice.

    It is a SHAM[E]!

  14. I am constantly amazed by statements made by prosecutors outside of/before trials. I have to conclude that they are legally exempt from any consequences from the defamatory statements they make about people. It’s one thing to file a statement as part of an indictment, but it seems to me that if a prosecutor stands up at a press conference and says, “Mr. Doe callously murdered that child,” but fails to prove that claim in court with a conviction, then that’s a defamatory statement because it was found to be not true.

    I am certainly not a lawyer, but this case does appear to be pretty shaky. Having it turn on the phrase, “clear statistical and anecdoctal body of evidence,” within the context of the overall statement seems pretty weak. He was saying that the choice to prosecute was part of a conspiratorial pattern. He didn’t say, for instance, that he had witnesses who would testify that the evidence had been fabricated. Impugning the motivations of the police and prosecutors seems like it should be always available to the defense – police and prosecutors certainly seem to be free to impugn the motivations of defendants….

  15. I agree with rafflaw. I can see a ruling similar to the 5th Circuit when it needs to set an example for a blatant violation of a gag order. But the ruling when applied to the statements at hand in this case is draconian and very disturbing.

    I am happy to be under the ambit of the 8th Circuit.

  16. I can’t see anything in his statements that would violate the gag order. It all sounded like opinions to me. This order seems to prevent the attorney from claiming to the press that his client is innocent and that they will prove his innocence. What am I missing?

  17. Gag orders should always ALWAYS be as narrowly defined and unambiguous as possible.

  18. Its a damn quandary…a delicate balance…How about next time not agreeing to an interview….just saying…

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