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Ferguson case tests rule on attorneys’ public comments

Heather Cole//October 31, 2014//

Ferguson case tests rule on attorneys’ public comments

Heather Cole//October 31, 2014//

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After a St. Louis Post-Dispatch reporter outlined a police officer’s version of what happened during the fatal shooting of unarmed Michael Brown, attorney Anthony Gray let fly with uninhibited opinions.

“Absurd from beginning to end” and a “concocted version of events that nobody supports,” the newspaper quoted Gray as saying.

Gray, an attorney for Brown’s family, later told a Missouri Lawyers Weekly reporter that he felt the statements described by the Post-Dispatch reporter “directly prejudiced my client.”

“I feel I have an ethical obligation to respond to them, which is what I’ve done,” Gray said.

Gray’s response to the Post-Dispatch reporter is an example of how the shooting of Brown — which set off protests and viral international news coverage — is testing the boundaries on how much attorneys involved in a case can speak to the press about it.

An ethics rule in Missouri says lawyers involved in investigating or trying a case aren’t allowed to make public statements that could affect its outcome — except to protect their clients from the effects of publicity they didn’t initiate.

A grand jury is investigating and is expected to take until at least mid-month to decide whether to indict white Ferguson police Officer Darren Wilson for the Aug. 9 death of 18-year-old Brown. The U.S. Department of Justice also is conducting a civil rights violation investigation.

In addition, the same publicity rule would apply if Brown’s family decides to file a lawsuit over his death, said Sara Rittman, a former Missouri legal ethics counsel.

“Michael Brown is obviously not directly the client, but he could be considered the client in terms of using that part of the rule regarding any statements that have been made about him,” said Rittman, now a solo attorney in Jefferson City.

The decision about a lawsuit will wait until the grand jury result, Gray said.

“We don’t want to create a sideshow with a civil case with a criminal case underway,” Gray said.

Some wiggle room

The vast majority of lawyers’ cases are handled quietly and without direct public attention, said Michael Downey, an Armstrong Teasdale partner who specializes in legal ethics. With the Wilson grand jury investigation, people not only want to know about it, they want to know about it on an hourly basis.

“This is not a case where if we [the attorneys] don’t talk, nothing’s going to be said,” Downey said. “It’s really a question of what is the need to protect the interests of your clients.”

“We don’t want to create a sideshow with a civil case with a criminal case underway.” – Anthony Gray

The attention “really begins to pull” on the trial publicity rule, Downey said. Missouri’s rule, which reflectsan American Bar Association Model Rule, is 4-3.6 in the Supreme Court Rules of Professional Conduct.

The rule prohibits attorneys involved in a case from making a statement that the attorney knows “will be disseminated by means of public communication” and “will have a substantial likelihood of materially prejudicing” litigation. It limits what attorneys can say to information such as the claim, offense, or defense in a case, the identity of the parties, scheduling and information in a public record.

But in addition to the exception allowing attorneys to protect their clients, comments on the rule seem to provide other wiggle room, with the first comment noting it’s hard to balance the right to a fair trial with the right to free speech. Legal proceedings’ subjects often are “of direct significance in debate and deliberation over questions of public policy,” the comment said.

The Brown case sparked national protests and debate about police use of force, particularly against African Americans.

Attorneys for Brown’s family — Benjamin Crump, of Florida firm Parks & Crump; and Gray, of Clayton firm Johnson Gray — began speaking publicly about the case soon after they were hired by Brown’s parents, Lesley McSpadden and Michael Brown Sr. Crump called for witnesses to come forward at one press conference and released the results of an autopsy the family commissioned at another.

More recently, the attorneys responded to leaks about what Wilson told investigators and of the official autopsy report that an Oct. 22 St. Louis Post-Dispatch article said shows Brown was shot in the hand at close range and had marijuana in his system.

The leaks were widely viewed as supportive of Wilson, who told investigators that Brown struggled with him for his gun in his patrol car and came back at Wilson after fleeing, according to another Oct. 22 Post-Dispatch article. Analysts suggested the leaks to the Post-Dispatch and others to The New York Times with Wilson’s version of events were arranged to prepare the public if Wilson is not indicted.

The accounts are at odds with reports from some witnesses who said that Brown was shot while raising his hands to surrender.

An ‘appropriate judicial venue’

Wilson’s attorneys have been more reticent than the Brown family’s. James Towey Jr., an attorney with McCarthy, Leonard & Kaemmerer whom news reports said is representing Wilson, did not return a call seeking comment for this story. But news organizations reported that counsel for Wilson issued a statement after the widely-criticized leaks. The statement said Wilson’s “legal counsel” — the name or names of the attorneys weren’t disclosed — were not responsible for any leaks and that any commentary should “only be done in the appropriate judicial venue and not through the media.”

A spokesman for St. Louis County Prosecuting Attorney Bob McCulloch, whose office is presenting information to the grand jury, also said the leaks did not originate there.

Chuck Hatfield, who served 10 years as chief of staff and counsel to then-Missouri Attorney General Jay Nixon, said most prosecutors take a strict interpretation of the publicity rule, limiting information to the press to the outlined exceptions, such as charges against a defendant.

The leaks could hurt Wilson’s case, said Hatfield, who now is chair of Stinson Leonard Street’s government solutions team and managing partner of the firm’s Jefferson City office. A potential juror who might be good for the police officer might not get seated on a jury because the juror has been prejudiced by hearing the information, he said.

Somebody, whether an attorney or not, has gone too far with the leaks, Gray said. Brown’s family, through their attorneys, formally requested from authorities some of the leaked information, including Wilson’s statements early in the case, before it was reported in the media. A forensic pathologist who conducted an autopsy at the Brown family’s request asked the St. Louis County Medical Examiner’s Office soon after the shooting to share their autopsy results, Gray said.

“The only way we’ve been able to receive it is through the media and leaks, which is an unusual way to receive information,” Gray said.

But Hatfield said it’s interesting that the Brown family attorneys have responded to the leaks.

“At what point when you have a leak do you respond to a leak and at what point do you stop?” he said.

‘New and shocking’ information

Among the subjects likely to be particularly prejudicial to a case, the publicity rule says, are statements about expected testimony.

Crump referred to what witnesses said several times in response to the leaks. For example, he told The Los Angeles Times in a statement that several independent witnesses indicated there was a brief altercation between Michael Brown and Officer Wilson at the patrol car.

“What we want to know is why Officer Wilson shot Michael Brown multiple times and killed him even though he was more than 20 feet away from his patrol car; this is the crux of the matter!” Crump said in the statement, according to an Oct. 22 Times article.

A reporter calling Crump’s office was told to relay a request for comment to a spokesman through email. There was no response to the email before press time.

But a factor to consider in deciding whether a statement is likely to violate the rule is whether the information previously was disclosed to the public, Downey wrote in an article called “Ethical Rules for Litigating in the Court of Public Opinion” published in Litigation Ethics in July 2012.

“Disclosing new and shocking information makes discipline more likely,” Downey wrote.

In a phone interview, Downey referred to a U.S. Supreme Court opinion on pre-trial publicity in Gentile v. State Bar of Nevada. The high court in 1991 overturned the private reprimand of an attorney who held a press conference after his client was indicted on charges of stealing drugs and money used in an undercover operation from a safety deposit vault at his client’s business. The attorney said that his client was being used as a scapegoat, and the person most likely to have stolen the drugs and money was a police detective. The defendant ultimately was acquitted of all counts.

Speech critical of the exercise of government power lies at the very center of the First Amendment, the Supreme Court opinion said.

“In some circumstances press comment is necessary to protect the rights of the client and prevent abuse of the courts,” the opinion said.

“It’s an area where attorneys need to tread carefully,” Downey said. “At the same time, it is an area where they’re entitled to speak.”

In the news

Though ethical rules limit what attorneys can say publicly about their cases, lawyers from both sides of Ferguson Officer Darren Wilson’s fatal shooting of Michael Brown have felt compelled to comment in the media. The following statements are drawn from national and local news sources.

 

Brown family attorney Anthony Gray, Johnson Gray, Clayton:

“This story just doesn’t even make good nonsense.”

— St. Louis Post-Dispatch, Oct. 22 (Speaking about Officer Darren Wilson’s reported version of events)

“It shows Mike as a person who is probably fighting for his life, trying to get free from whatever grip this officer has on him. And I draw that conclusion not blindly. I draw it on the fact that when he got free, he fled. And, so, the fact he ran the moment he was able, to me, is more logical. He was fighting for his life at that window.”

—KSDK, Oct. 22 (About interpretations of leaked autopsy and reported struggle at patrol car)

 

Brown family attorney Benjamin Crump, Parks & Crump, Tallahassee, Florida:

“Several independent witnesses indicated there was a brief altercation between Michael Brown and Officer Wilson at the patrol car. What we want to know is why Officer Wilson shot Michael Brown multiple times and killed him even though he was more than 20 feet away from his patrol car; this is the crux of the matter!”

—Los Angeles Times, Oct. 22

“You have to ask the common sense question. ‘Have you ever seen anybody try to get into a police car, especially young people of color?’ They’re not trying to get into police cars.”

“It’s insult on top of injury for Mike Brown and his family. Whatever happened at the car, they know their child was running away. They know several witnesses now have said he had his hands up and the police kept shooting.”

“What’s the use to having a grand jury if everything’s going to be leaked out anyway? The family is obviously frustrated. They believe these things are intentional and they are very, very heartbroken.”

—KSDK, Oct. 22

“The family has not believed anything the police or this medical examiner has said. They have their witnesses. We have seven witnesses that we know about that say the opposite.”

“The family wanted a jury trial that was transparent, not one done in secrecy, not something that they believe is an attempt to sweep their son’s death under the rug.”

—Washington Post, Oct. 23

 

Darren Wilson’s legal counsel

“We were not responsible for any leaks to any media including those published in the NY Times and the St. Louis Post-Dispatch. Further, we are not in possession of any of the disclosed reports or the investigative report. Finally, as long as the Grand Jury continues to meet and the Department of Justice continues to investigate, any comment on this matter should only be done in the appropriate judicial venue and not through the media.”

—Washington Post reporter Wesley Lowery’s tweet of statement, Oct. 23

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