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CHICAGO COUNCIL OF LAWYERS v. BAUER

February 5, 1974

CHICAGO COUNCIL OF LAWYERS ET AL., PLAINTIFFS,
v.
WILLIAM J. BAUER ET AL., DEFENDANTS, TERENCE MACCARTHY ET AL., INTERVENORS.



MEMORANDUM AND ORDER ON DEFENDANTS' AND INTERVENORS' MOTIONS

The Chicago Council of Lawyers, an association of local lawyers, and seven of its attorney members have filed this action for declaratory judgment and injunction seeking a finding that Rule 1.07 of the Local Criminal Rules of this court and Disciplinary Rule DR 7-107 of the American Bar Association Code of Professional Responsibility (collectively referred to as the no-comment rules) are facially unconstitutional as violative of the plaintiffs' first amendment rights.*fn1 The no-comment rules prohibit the release of information by counsel in connection with pending criminal jury cases, "if there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice." Local Rule 1.07(a). A.B.A. Disciplinary Rule DR 7-107(G) extends these principles to civil cases.*fn2

The complaint has two counts: Count I is on behalf of plaintiffs individually while Count II is a purported class action brought on behalf of all similarly situated attorneys. Certain criminal defense lawyers were granted leave to intervene and presently have before the court a motion to have themselves declared the proper representatives of the subclass of attorneys defending criminal cases. Both the intervenors and the defendants have moved to dismiss for failure to state a claim upon which relief can be granted.*fn3 For the reasons herein stated, the court grants the motions of intervenors and defendants to dismiss. In light of this disposition, the procedural questions raised by the intervenors need not be reached.

A fundamental tenet of our system of justice is "that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence . . ." Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907). The right to a fair and impartial adjudication extends not only to criminal defendants but also to the government and, through it, to society. Cf. Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970); North Carolina v. Pearce, 395 U.S. 711, 721 n. 18, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. Tijerina, 412 F.2d 661, 666 (10th Cir.), cert. den., 396 U.S. 990, 90 S.Ct. 478, 24 L.Ed.2d 452 (1969); State v. Kavanaugh, 52 N.J. 7, 243 A.2d 225, 231 (1968). Yet, in recent years, it has become increasingly evident that this fundamental right has been seriously threatened by excessive and prejudicial publicity.

Against this background, the Supreme Court in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1961), directed district courts to seek an accommodation between the competing constitutional guarantees of fair trial and free speech. In clear and unequivocal language, the Court declared:

    "The courts must take such steps by rule and
  regulation that will protect their processes from
  prejudicial outside interferences. Neither
  prosecutors, counsel for defense, the accused,
  witnesses, court staff nor enforcement officers
  coming under the jurisdiction of the court should be
  permitted to frustrate its function. Collaboration
  between counsel and the press as to information
  affecting the fairness of a criminal trial is not
  only subject to regulation, but is highly
  censurable and worthy of disciplinary measures."
  (Emphasis added.) 384 U.S. 363, 86 S.Ct. 1522.

With respect to extrajudicial disclosures by counsel, the Court was quite explicit:

    "More specifically, the trial court might well have
  proscribed extrajudicial statements by any lawyer,
  party, witness, or court official which divulged
  prejudicial matters, such as the refusal of Sheppard
  to submit to interrogation or take any lie detector
  tests; any statement made by Sheppard to officials;
  the identity of prospective witnesses or their
  probable testimony; any belief in guilt or innocence;
  or like statements concerning the merits of the
  case." (Emphasis added.) 384 U.S. 361, 86 S.Ct. 1521.

The efforts of the courts and the bar to implement these mandated directives culminated in the adoption of the currently challenged rules.*fn4

I. Criminal Jury Trials

The plaintiffs contend that there are four respects in which the no-comment rules, as applied to criminal jury trials, exceed the minimum restraint required to assure a fair and impartial jury trial and are thus facially unconstitutional.

Plaintiffs first argue that the failure of the rules to provide for the employment of traditional protective devices, in lieu of partially silencing attorneys, renders them unconstitutional.*fn5 Initially, it must be remembered that such devices, unlike the challenged rules, are not preventive measures, but merely attempts to overcome the effects of prejudicial publicity once it has occurred. As the court in Sheppard was careful to point out, "the cure lies in those remedial measures that will prevent the prejudice at its inception." (Emphasis added.) 384 U.S. 333, 363, 86 S.Ct. 1522.

Measured against the no-comment rules, these traditional techniques are clearly inadequate. Continuances, of course, are in conflict with the Sixth Amendment guarantee of a speedy trial. Changes of venue compel defendants to sacrifice their constitutional right to trial in the locale in which the crime took place. Further, neither these devices nor cautionary instructions can negate the effect of prejudicial publicity once it has permeated the proceedings. Sequestration of the jury is equally inadequate. If it is ordered because of the jurors' exposure to prejudicial publicity before trial, irremediable damage may have already been done. Sequestration is generally viewed as an undesirable last resort by defense counsel (Intervenors' Br. 24) and may itself prejudice the defendant because of the inconvenience and annoyance it causes jurors. It should not be invoked merely to permit attorneys to disseminate prejudicial publicity. See Reardon Report, 73-76.

Plaintiffs next contend that the rules are unconstitutionally overbroad because they fail to draw any distinction between comments favorable to the criminal defendant and those which are hostile. Admittedly, the publicity problem in the main has been one of prosecutorial excesses. Reardon Report, 37, 42-43. However, this does not permit the court to assume that defense counsel's comments would be non-prejudicial to the prosecution even though merely favorable to the defendant. Indeed, the report of a New York City Bar Association committee, chaired by Judge Harold R. Medina, indicated that it is not uncommon for defense counsel to actively generate publicity which may taint the impartiality of a tribunal. See Medina Report, 43-55; Reardon Report, 42-43, 175; United States ex. rel. Bloeth v. Denno, 313 F.2d 364, 378-379 (2nd Cir.) (dissent), cert. den., 372 U.S. 978, 83 S.Ct. 1112, 10 L.Ed.2d 143 (1963); Sheppard v. Maxwell, supra, 384 U.S. 361, 86 S.Ct. 1507. The adoption of the onesided approach urged by the plaintiffs would ignore the correlative interest of society in a fair trial. Any limitation of prejudicial comment should apply to any attorney bent on securing improper advantage. State v. Van Duyne, 43 N.J. 369, 204 A.2d 841, cert. den., 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1969); State v. Kavanaugh, supra.

Plaintiffs' third objection is that the rules constitute a "prior restraint" of first amendment rights and must be judged accordingly. See Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). However, unlike the cited cases, the instant situation does not impose a blanket prohibition on all speech irrespective of content. Rather, the challenged rules seek only to punish speech from which prejudice is reasonably likely to result. They impose ...


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