Second Time is the Charm?
Just 48 hours after the defense team filed their Response to the Motion to Intervene, they asked for a do-over.
To correct the missteps and record, in the accompanying Praecipe they write to, “inform the Court that an earlier draft of the above named Defendants’ Response to Media Intervenor’s Motion to Intervene was erroneously filed on November 16, 2010. In an effort to correct this error, the above named Defendants have filed on November 18, 2010 the intended and complete Response to Media Intervenor’s Motion to Intervene.”
Since posting the first document, several sharp readers pointed out typos and some possible holes in the legal arguments.
A quick side-by-side comparison of the two motions demonstrates not just additional proof-reading that may have been done, but possible tweaks to the defense team’s legal strategy moving forward on the gag order and perhaps too, a rethinking of their strongly worded charges made against Wone family attorney and wrongful death specialist, Patrick Regan.
For starters, the new doc weighs in at fourteen pages; the old one was sixteen. Sharper legal eyes may first note the new filing reflects a pivot on a key element of the precedent they put forward, notably the reliance on Sheppard v. Maxwell, 384 U.S. 333, 362 (1966). Gone from page 8 of the original motion is a much of the section devoted to that case.
The new motion also walks back some language regarding Regan and the DC Bar Rule 3.6, which addresses pretrial publicity. Whereas page 12 of the original motion floated the idea that, “Defendants do not know whether such a statement (Regan’s status hearing remarks on the 5th amendment) violated DC bar Rule 3.6…,” the new text is somewhat softer and that sentence has been struck.
Also missing from the new motion is the mixing of criminal and civil. As readers have pointed out, there is a clear distinction in civil court between “guilty” and liable.” Deleted from the new doc is this particular line concerning Regan, “The particular statements that have been made by Plaintiff’s Counsel have the ability to influence potential jury panel members, and have the potential to destroy the pillar of our justice system: “Innocent until proven guilty.” ”
A central point of the defense argument is that extrajudical statements such as Regan’s may “pollute” the future coming jury pool as they wind their way through the press coverage of the case. A notable change in the new document reflects a tweak in how the defense characterizes the media’s reporting:
Old: “…a blanket ban from statements to the press from counsel for the parties is the only viable solution to ensure that counsel focus on the legal issue before this Honorable Court, not how it is portrayed by the press.”
New: “…a blanket ban from statements to the press from counsel for the parties is the only viable solution to ensure that counsel focus on the legal issue before this Honorable Court, not on manipulating press coverage of it.”
Deleted from the new motion in another characterization of the press coverage. Regarding the September 17 Washington Post story on the status hearing, “media obsession with the case,” is nowhere to be found in the new filing.
The inclusion of Keith Alexander’s piece that day raises an interesting question: If the defense found that WaPo story and the comments it generated so injurious, then why publicize it even more by attaching it as an exhibit to the motion and republishing it? Not just once, but twice.
The only other inconsistency we note from the defendants’ paperwork is in the page one headers, the Next Event. On both versions of the motions they list a February 11 deadline for discovery requests, but in the new Praecipe, it shows February 14. We show the next event being the December 8 status hearing. It’s a small point but we don’t think it will necessitate them filing for a third time.
Praecipe for New Response
New Response to Motion to Intervene
Original Response to Motion to Intervene