Defense to Patrick Regan: STFU
In Superior Court yesterday, defense counsel entered a motion to Enjoin Legal Counsel From Making Extrajudicial Statements regarding Litigation. In short, a gag order.
The defense maintains that Robert’s murder, “has been the subject of extensive media coverage for the last four years. Most of the media coverage has clearly implicated the Defendants of some wrongdoing, premised upon multiple inaccurate and untruthful assertions of the MPD and the USAO…
“The press coverage is necessarily having the effect of poisoning the jury pool, which threatening to make it impossible for the Defendants to find an impartial jury.”
Whether or not the Wone case “has been the subject of extensive media coverage for the last four years,” is certainly debatable, but more than likely what set this off were the remarks that Wone Attorney Patrick Regan, made following the last staus hearing. That “patently incorrect and inflammatory statement” may have stung more than any real or imagined drumbeat of coverage.
The documents follow and the supporting case law cites such standout trials that involved Scooter Libby, Blackwater Worldwide and Dr. Samuel Sheppard. Maybe not the best of company.
The motion goes on to say:
“On September 16, 2010, one of Plaintiff’s attorneys, Patrick M. Regan, addressed a collection of reporters outside the court house, where he made numerous statements about this case, including the following quote: “Defendants don’t assert their fifth amendment rights if they are not guilty of something.”
Clearly the defendants were put off by Regan’s tough comments, and in one of several curious footnotes, this one on page 7 of the Points and Authorities in Support, they call him out on it and contrast his scrappy courthouse trash talking to the lighter touch of his white shoe colleagues at Cov:
“In fact, one would expect that Mr. Regan’s co-counsel, attorneys at the law firm of Covington & Burling would take issue with Mr. Regan’s comments. Covington & Burling maintains a large white collar criminal defense practice, consisting of 29 partners who, per the firm’s website are “widely recognized not only for litigating and winning high-profile criminal cases, but also for devising creative legal strategies to resolve cases long before they draw public scrutiny.”
To us, “devising creative legal strategies to resolve cases long before they draw public scrutiny,” sounds like a clever euphemism for a settlement, but we doubt that’s the defense’s point here.
Another footnote, this one on page 4, points to an attachment in the document, Exhibit 5, and calls out The Washington Post for continuing to repeat and print the MPD and Government accusations long after acquittal:
“For Example, the press continues to report that the government contends Mr. Wone was sexually assaulted. See, e.g., Washington Post, “Wone’s widow wants phone records,” (Aug. 9, 2010) (“Authorities say Wone was drugged, sexually assaulted and stabbed after arranging to spend the night at the three defendants’ home.”)”
A small point, and while Keith Alexander may want credit for this story, it was actually an unsigned AP Wire piece, that surfaced in the news digest of the Metro Section.
The overall thrust of this motion is that a media frenzy won’t allow for a fair trial; any DC jury pool would be tainted, if it hasn’t been already. Lastly, on page 3, the intersection of traditional media and new and a blanket indictment of both:
“The media coverage has extended past the traditional mainstream media to the internet world of blogs leading to more widespread coverage. Unfortunately, all of the coverage has largely consisted of nothing more than parroting the latest and ever evolving rank speculation of various MPD officials, often speaking anonymously. American courts have long recognized the effect that a media circus similar to the one at issue can have on the public at large.”
As far as we can tell, the last time the MPD had anything of significance to say, on or off-the-record, about this murder, was not long after the defendants stopped talking about it as well. They’ve both been pretty much silent. And reaching back to the Warren Court to buttress their claim, the defense quotes this SCOTUS opinion in Sheppard v. Maxwell, (1966):
“‘…[m]urder and mystery, society, sex and suspense were combined in this case in such a manner as to intrigue and captivate the public fancy to a degree perhaps unparalleled in recent annals.
“Throughout the preindictment investigation, the subsequent legal skirmishes and the nine-week trial, circulation-conscious editors catered to the insatiable interest of the American public in the bizarre. In this atmosphere of a ‘Roman holiday’ for the news media, [Defendants] stood trial.”
It’s a real stretch to argue that the coverage so far of the Wone case resembles anything approximating a “media circus.” Certainly not the trial we attended. The public’s appetite for the lurid may not have changed, but the coverage for this summer’s criminal trial was muted when compared to those that constitute Cable TV’s nightly fare, or perhaps what we’ll see when Ingmar Guandique goes on trial for the murder of Chandra Levy within the next few weeks.
Pick your film, Roman Holiday or La Dolce Vita; the relatively restrained media covering the Wone case resembles neither of those press hordes. But perhaps the only element that resonates from either is a short quote from that Fellini masterpiece: “By 1965 there’ll be total depravity. How squalid everything will be.” Give or take forty years.
BLT’s Mike Scarcella offers this.
Motion to Enjoin Enjoin Legal Counsel From Making Extrajudicial Statements
Points and Authorities in Support
I read somewhere while I was doing a litigation support work and I think this “Motion to Enjoin Legal Counsel From Making Extrajudicial Statements” is referred to a “Lawyer’s Code of Professional Responsibility,” i.e.
… Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.
In fulfilling professional responsibilities, a lawyer necessarily assumes various roles that require the performance of many difficult tasks. Not every situation which the lawyer may encounter can be foreseen, but fundamental ethical principles are always present for guidance. Within the framework of these principles, a lawyer must with courage and foresight be able and ready to shape the body of the law to the ever-changing relationships of society.
The Code of Professional Responsibility points the way to the aspiring and provides standards by which to judge the transgressor. Each lawyer’s own conscience must provide the touchstone against which to test the extent to which the lawyer’s actions should rise above minimum standards. But in the last analysis it is the desire for the respect and confidence of the members of the profession and of the society which the lawyer serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise.
et al.
… and nothing more than that.
As I infrequently check in — it is amazing that the same theme continues — the vilification of the defendants now before the civil trial. If everyone is just so sure that they are guilt why not just put a hit out on the guys. It would be quicker and more caring! Now again, bring on the hate . . .
Oh, please. No one hates you. There is a core group of people here that continues to hope for justice for Robert Wone and his friends and family. A federal judge has just concluded that at least one of the three defendants either killed Robert Wone or is withholding critical information that could lead the identification of his killer. Subsequent to this finding, the defendants have refused to answer even the most general questions relating to the night of the murder. It’s hardly “amazing” that they’re being criticized for this.
Furthermore, while we rarely agree on here, I’ve tried to respect your opinions, but your “why not just put a hit out on the guys” is simply beneath you. And please don’t try to tell me that I don’t understand sarcasm. I understand it perfectly well; you’re just not very good at it.
Too Funny.
I’ve confused all of the Bill’s before.
I think there 3-4 of them.
But, on this one, I thought Bill was responding to himself and taking two entirtely different sides.
Two different Bill’s.
Gotta read more closely.
Bill, dear, a hit or two would be far too expensive in terms of planning time and personnel staffing. The blog would probably have to get (501c)3 status to garner the necessary expertise, and that’s definitely something for which the Editors and their citizen-pundits have little or no time. And, ninjas just don’t exist in DC, as Mr. Price may admit to himself by now.
Thus, Brook’s court, combined with this very limited (in terms of size of audience) court of public opinion, are the only options available for those, including Lynn, who see at least one of the defendants as most likely involved in the murder of Robert Wone.
Keep checking in, though, Bill: the blog goes way beyond pure vilification! Legal parsings and literary references make a reader’s visit well worth their time.
Oh Bill. Now you’re just being silly.
I’m sorry but I just imagined you patting the head of an sweet but goofy child. My first smile du jour.
Oh honey, listen, people are allowed to believe they’re guilty, just as you are entitled to your conclusions. No one here, however, is a murderer either by their own hand or contract, which is more than some people can say. Mind you, I’m not naming names…
Craig, you said “As far as we can tell, the last time the MPD had anything of significance to say, on or off-the-record, about this murder, was not long after the defendants stopped talking about it as well. They’ve both been pretty much silent.”
But see, https://whomurderedrobertwone.com/2010/07/02/we-still-have-a-murder-investigation/
Kiki: How do you define “significance?” To me, the statement must rise above the level of a canned response or reflexive talking point.
You know, the more smoke they blow, the more they appear to have something to hide.
None of my co-workers in DC have even heard of Robert Wone’s murder, or the case against the defendants for that matter. There are plenty of DC residents that have not been “tainted” by the “extensive media coverage”. There are plenty of people who do not read the newspaper or watch the news.
Regarding Patrick Regan’s quote, is he not allowed to speak his mind to reporters?
I totally agree, Michael. Not one of my co-workers I mentioned this case to heard about it. One thought she vaguely heard something, but that is it.
Clearly some people have heard about it but probably forgotten about it. Unless someone who follows this blog is called up, I doubt they’d have any problems finding an unbiased jury pool.
Much to do about nothing; not nearly so significant in a civil trial. Motion DENIED.
Boof: Does Judge Hedge have any leeway in a ruling on this? Is it a yes/no sort of thing? Can she grant or deny the motion and impose exceptions?
If I were the judge, I’d remind the lawyers to exercise professional restraint in their dealings with the press and then deny the motion without prejudice to renewal.
It doesn’t hurt to mention once again that there has been zero coverage of this case by the national media, excepting a one-time AP piece, if I recall correctly.
If they are worried about prejudicial effect on the jury pool at this particular juncture, does that indicate a lack of faith that the motion to dismiss will succeed?
My opinion, Craig: She has leeway as to subject matter, but her ruling would have to apply to all counsel equally. Simply admonishing all counsel, as Hoya suggests, may be all that’s necessary, if she’s forceful. Most courts abhor limiting the right to speak.
Total supposition on my part, but it looks to me like Joe Price wrote this up and had the lawyers sign off on it. It just “sounds” like him to me. And I have a hard time believing that any of the lawyers on the case really think their clients are in the same league as Blackwater or Scooter Libby.
I don’t really understand the logic of the argument, either. You ask for a gag order to prevent opposing counsel from saying things to the media that they would never be able to say in open court. But that’s not what Regan did. Invoking your fifth amendment rights in a civil trial can–and almost certainly will–be used against you. Regan can–and almost certainly will–make a nearly identical statement to the jury. I can’t see how he’s “tainting” the jury pool. And the media, the MPD, and the USA’s office aren’t parties to the current suit, so I’m not sure how they can be hit with a gag order.
Finally, what’s with the last two pages of the supporting documents? It’s an unsigned order from Judge Hedge. Has she already ruled on this, or did the defendants really take the liberty of drafting an order for her? Is this common practice?
It is common practice to submit a “proposed order” to the court. Lawyers do it as a courtesy to the court so the court staff does not have to spend the time typing up the order. We also like it because it lets us choose the language in the order!
… and every lawyer does that, and if his/her secretary forgets to (also the Certificate of Services) attach at the end of the filing papers, boy … the office could go on fire when we have to go back to insert that piece while making massive photocopying before serving to the Court and the other parties.
One last thought: I think that the defendants and their supporters truly believed that this would all “blow over” after the criminal trial ended, and now they’re more than a little annoyed that it hasn’t. I think that you can see this in the “get a life” and “you people need to move on” posts that pop up here from time to time.
Furthermore, I think it’s becoming increasingly clear that Covington is going to be throwing out all kinds of subpoenas in the near future, which is going to further strain the relationships between the defendants and just about everyone they know. I think that this filing reflects the frustrations of defendants about all of this. I think that they’re only now realizing that this isn’t going to end any time soon.
Amen, BillO. It is so in keeping with their attitude of “Your rules do not apply to me because I am smarter, richer and better connected than the rest of you” attitude.
And to think, Gloria, Craig and I were less than inches away from that histoical moment when Regan spoke that day after the hearing.
As a witness, I didn’t observe any soap boxes or attempts to sway the media. Of which, there were three media outlets, I believe, in attendance. He simply made a throw away comment which was quite compelling.
Since that moment, I thought a lot about it and wondered why there hadn’t been a motion to date by the defendants to place the case in Ohio.
It kinda makes sense. No?
Hey, we have the news in Ohio, too!
Cat:
I’ve run this story all over the world for the past 4 plus years and almost no one outside of DC has heard of it.
Some GAY folks in NYC, but, that’s about it.
And those New Yorkers had DC ties.
I think, Ohio, is safe.
Probably right. Columbus. Or Cincinnati? Its a big state.
Youngstown in November, though, would be the most fitting stage for the setting of the sun of Team Price, IMHO. A cold, cloudy, and grey spate of seasonal weather could wipe those silly and inappropriate grins away, at the very least.
And, Youngstown folks will not entertain thier antics.
Conservative and serious minded people there.
And, they will not buy any of the defendant’s stories.
Nite, nite.
I like the suggestion that Joe wrote the brief. I’m not sure I’d cite the Sheppard case so extensively, if I were the defense, however. Dr. Sheppard’s defense was that his wife was beaten to death (while he was sleeping downstairs) by a “bushy haired intruder.” It was such an incredible claim that he was quickly convicted (later to be reversed by the U.S. Supreme Court). I wonder if the bushy haired intruder had ninja training?
Cat:
Oh, yea…
Cat from Cleveland!
How did you hear of the story?
Ties to DC?
I read about the case in the news when it happened and googled every so often to see if there were new developments. That’s how I found this blog. No ties to the case whatsoever – not gay, not into bdsm, not from DC, and didn’t attend W&M. Just a morbid interest in the macabre, from a nice safe distance, of course. That sounds very cavelier, so I want to also note – I have tremendous sympathy for the Wone family, and I have not lost sight of their struggle.
Cat:
“I read about the case in the news.”
Ohio News? National?
Really surprised if it wasn’t news here in town.
It may very well have been the Washington Post. Its one of my usual reads online.
Makes Sense.
Good pick of, “Rags,” to read.
Although, I went to school in Ohio and like The Cleveland Plain Dealer.
The Legacy.com Guest Book for Ellen A. Fredel(Chi Law)
Will remain online until 10/15/2010, after which it will no longer be available to read or add an entry.
Go To:
http://www.legacy.com/guestbook/washingtonpost/guestbook.aspx?n=ellen-fredel&pid=145358787&eid=viewgb
and share your thoughts with her family and friends.
By the way,
It takes up to 24 hours to post.
Re citing the Sheppard case, I am fairly certain it was mentioned on the WMRW site once before. I think there was a discussion of cases in Ohio (maybe Cat participated in that one?). Maybe JP or one of his supporters got the idea for citing it from reading this site.
BTW, that is a bit grandiose, comparing this case to those three high-profile cases (Libby, Blackwater, Sheppard).
Yes, I was right. Cat posted about the Sam Sheppard case (spelled in the post as “Shepard” if you do a search. She posted 7/19/10. I think the page she was commenting on was from 7/16.
Yes, susan, I agree that it’s a big bit grandiose to compare this case to those. However in the Sheppard case, there are some similarities – chiefly in regards to the local media. Last evening I did a quick search on youtube for old documentaries regarding the Sheppard case and came across one that was fascinating: “Trial by Newspaper: the Sam Sheppard Case.”
It’s actually worth a watch, with both Sheppard’s son and F. Lee Bailey being extensively interviewed. Some of the reporting was definitely of the yellow variety, incuding publishing the names. addresses and photos of the jurors! Nothing of that kind has occurred in this case, but I can see where the Defendants’ counsel (or Joe) included it.
Regards,
Kate
Most of the outwardly aggressive antics at this summer’s criminal trial came from the defendants themselves.
Ward made a spectacle of himself by publicly berating a journalist in the hallway during a break in the first week. He and Price were heard a number of times making less than flattering remarks about us to their coterie, in particular, one rather inappropriate comment made about, and in earshot of our intern, as they were entering the courtroom.
In that instance, Price, only slightly more discrete than his dom Ward, didn’t direct the comment to Sean, but said it loud enough to be overheard. It reminded me of high school. Stay classy, as the kids say these days.
Zaborsky was the only one among them that acted like a gentleman.
So, they really like us after all! I trust, of course, that their comments stuck to the issues of the case and did not refer to the weight, age, hair color, or gender identity of the Editors and/or their intrepid intern Sean.
Oh, Victor, why are you stuck with your own “Island of the Flies”: are your maternal yearnings that strong!
I don’t think they’re like us at all. I think most of us here would tell any of the defendants to their face exactly what we think of them. I like to imagine the roll of flesh over Joe’s collar turning from red to purple.
I couldn’t agree more, Craig. The defendants Price and Ward provided the spectacle at the trial for all to see.
I hope my post above caused no offense to you, the other fabulous Editors and my fellow posters. It was an attempt (perhaps ham-handed) to draw some analogies between the traditional media (in this case print/newspaper) of the pre-trial 1954 Sheppard case and the 2006-2007 pre-trial coverage cited in the Motion.
It is indeed a reach, but the defendants don’t have much else to go on, if anything at all.
My warmest regards and genuine apology,
Kate
Kate: Heavens no. No offense.
Clio: You know the answer to that.
Obviously, Joe Price is disrespectful toward Asians, especially when they are rejecting him.
I think one major difference in the reporting of the Shephard case and this case is the time period.
News reporting during the 50s was almost sacrosanct. If it was in the paper, it was true. Not so much today. We all know that journalism takes a spin depending on who’s writing the artice, what newspaper it’s published in, etc. Everything is questionnable now.
That’s true, CD. Also, the press coverage was completely different in both cases.
And their citing of the MPD, etc. is like a red herring. It’s like what Craig says: All the adverse attention that was covered was brought on by these guys themselves (and as I’ve said before, maybe one or all are innocent; but they are their own worst enemies in terms of the media coverage there has been, paltry as it has been.
Hi Kate,
I will have to check that out.
My reasoning about it being a bit over the top is this:
1. The Sheppard case was referred to as a “media circus.”
I went for half a day mid-trial to sit in at the Court. They were still in session and it was about mid-morning. I went right in, got a seat. The press section was not full.
2. DW himself accused K. Alexander from the Post of sleeping. I’m sure he wasn’t but apparently there was so much of a “circus” that DW and fam. thought the press was asleep at the job.
Question: Which is it? Do they want them awake or sleeping? Kind of setting a Catch 22 for themselves.
My thought: They cite the Libby case and the Sheppard case for two reasons: In both cases the person was tried and found “innocent.” That’s the light in which they want to portray themselves coming into this civil trial.
I can’t comment on the Blackwater case because I do not know what the verdict was there.
”
They cite the Libby case and the Sheppard case for two reasons: In both cases the person was tried and found “innocent.”
”
Um, no. Libby was found guilty of four out of five felony charges.
Thanks for the correction, BO. I suppose I was thinking of him being the fall guy for Cheney, who wanted him pardoned (probably because he took the fall).
So, in that regard, he’s a sympathetic figure to some, I suppose.
You now, I agree Joe Price does not have the, “Name Equity,” of Libby, Blackwater or Sheppard, but, this case carries a lot of weight for is unusual circumstances and misdeeds.
Joe Price, the suspect, is coming into his own and may become a household name in no time.
With all of its moving parts, this is a very bizarre case, that is very newsworthy.
It should be very newsworthy, Rich, but, for some reasons (extensively rehashed in the hothouse of this blog), CNN in particular has NOT been interested. Print media has kept the story on periodic bursts of life support, but only the local Fox station, for its own agenda no doubt, showed any real interest before and during the criminal trial. Not many people read print media anymore, and any faint public memories of the criminal trial will grow fainter with every passing month.
A handful of stalwarts do read the Editors and their citizen-pundits, and I guess that just a slight majority of that thimbleful, derisively called by some — “the Island of the Flies,” live in metro Washington. Sad!
I do wonder why CNN hasn’t covered?
Could this be the answer?
http://www.cnn.com/CNN/anchors_reporters/goddard.lisa.html
My reporting 101 in my years of Journalism graduate studies said: basicly, when a dog bites you/me, it is NOT a news. When a dog bites the President, it IS a news. When you/me bite a dog, it IS a news. When the President bites a dog, it IS a “bigger” news.
I guess as someone was saying earlier on this blog that some local people have even never heard of, or forgot about it. It is just a small, local, news.
Yes, your link sums up what my sarcasm was silently pointing out, Small d. At first I thought she would not risk her credibility as a reporter, but then having her use her “friendship with Robert” to gain access to the courtroom, all bets were off as far as I was concerned. I was embarrassed for her, since she didn’t have enough sense to be ashamed of herself.
She showed up (probably) everyday, always smooching with Joe. I saw her begging to cut in front of a short woman trying to be the first to get in the courtroom (seat). Another woman stepped up to tell her that they were waiting “in line” and asked her to observe the rules. She made a scene to these women that they were “mean” to her, Later she tried to cut in again. A U.S. Marshall told her one time she had to wait in line because the courtroom was full. Joe showed up to try to get her in but there was no seat.
She showed her “forceful support” that she was there for Joe, and not for Robert.
I witnessed all that.
Oh! Lisa, Lisa…Why on earth you did that? I didn’t know that she was a famous CNN reporter until I saw her picture on this website. I was stunned!
Lisa G., according to her bio blurb, is a Russophile. Perhaps, she can give her interview about the case in Russian to a local reporter in Murmansk: certainly, no one will notice.
“Smooching with Joe:” surely that is a provocative overstatement, denton. I also doubt Lisa
G. is that divalike in her behavior, as well. If she was, then we might have heard some answers from her by now.
And, when Dyl did admit talking about Lisa on the night of the murder, what about Lisa were they discussing? Her love of the Hermitage’s external pastel colors, or her appreciation of Chekhov’s plays? It would be a sad commentary on this entire William and Mary set, if only Joe’s recollection of a joke about CrispyCremes was true in reference to the kitchen conversation.
I take “schmooching with Joe” back and replace it with “showing public affection” with Joe in terms of devotion, caring, crying (oh yeah, she did, and I did not make it up) and made public scene outside courtroom in front of public that she wanted to cut in front of some front runner audiences but was told to “get in line.” She DID NOT want to get in line and agressively insisted that she gets in because she was Joe’s supporter blah…blah…blah….
While I was watching, I thought “Who was this woman? and “Why she had to do what she did?”
Agree with Clio – except for a few things here and there and this blog, the case is no more than pulseless electrical activity at this point. No one I have talked to has heard of it.
Really? Are you talking about people in Maryland? The Wash. Post has had a bunch of articles, and there was the lengthy Washingtonian article this year. I just sorta assumed people living around DC all read the Post while commuting on metro to work.
If you do a google archive search and compare the results for “Robert Wone” with “Chandra Levy” (another local murder), the results are staggeringly disproportionate. RW received “about 100” hits. CL received “about 8960”. RW’s results are mainly local. CL’s results are international.
Her affair that links to a politician made the news “national” compare to Wone case. No judging, no bias here.
Do you think they got the wrong guy? Read the end of it.
Thursday Hearing headline:
D.C. police admit disguising selves, writing letters to Chandra Levy suspect
http://www.washingtonpost.com/wp-dyn/content/article/2010/10/14/AR2010101406333.html?sub=AR
By Keith L. Alexander
Washington Post Staff Writer
Thursday, October 14, 2010
. . . [Judge Gerald] Fisher also ruled against a defense motion to include information from a polygraph test that Guandique took. According to the motion, Guandique took a lie-detector test on Feb. 4, 2002. He was asked whether he was involved in Levy’s disappearance and whether he had caused Levy’s disappearance. Guandique responded “no” to both questions. The examiner who administered the test determined that Guandique was “not deceptive” in his responses.
I agree, Denton.
This was just an example of how the Wone case has not gotten extensive news coverage.
Plus, how many murderers are out there that haven’t been “found” “guilty!”
That was an interesting article, Denton. Thanks for posting that. I hadn’t seen it. A little insight into the MPD.
A Roman holiday? Well, then, let the gladitorial games begin. But, ever since Justinian and his wife Theodora came to Jesus, the spectacles have never been the same. Similarly, the fragmentation of media by the Internet and cable TV has forever diluted any sense of media circus: the OJ trial happened at the dawn of the Information Revolution. So, the fear of a feeding frenzy by the press seems now like a quaint quibble from the Warren Court — just like its imposition of the Miranda warnings in all criminal matters.
Not to annoy Rich with my OT-ness, but I saw the most fabulous bio of J&T on some obscure channel last week. T got her due as a real influence with a brain, instead of a pretty face and a certain impressive skill set.
Now to keep this legal, I also think that Joe et al are still far to impressed with themselves when it comes to how infamous they are. Truly, no one in the greater population much cares what happens to the lot of them.
Dear Carolina:
I spent over 12 hours on this one asnd consulted with 4 people.
As for “OT-ness,” the best I coud do was, “Overtime.”
Finally,James looks at it and says, it’s your, “Off Topic(ness).”
Oh.
No problem with me at all.
Frankly, I’m fine with going off topic but have learned otherwise.
Carry on.
Yes, but did you surmise what Theodora’s skill set was?!?
Way over my head. 🙂
Theodora?
This gag order makes me wonder why one never surfaced during the criminal trial. But had one been in place, Bernie Grimm wouldn’t have had the chance to call us “Salacious, vile and offensive.” Win-win?
Well, the lawyers are not talking that much anyway, so the point is moot. Grimm’s over-the-top comment about WMRW, like nearly everything else about the criminal trial, failed to make the national press; he was probably counting on a bump in publicity for himself from the trial, a bump that never materialized.
It may no coincidence then that, after the rendering of Lynn’s “cold comfort,” he reflected by saying that “no one” was a victor (small v) with her verdict — including himself, a fact that probably angered him the most about the trial. And, that in itself may be a small cause for relief for casewatchers.
I’m not sure how much Bernie wants to be associated with the ambivalent win at the criminal trial. I would imagine that he doesn’t even take Joe’s calls anymore.
The Defendants can use “Gag” too. See also,
Posted by: Culuket, May 21, 2010 04:27:06 PM
http://www.washingtonian.com/blogarticles/people/capitalcomment/15719.html
Somehow I’m pretty sure that isn’t Joe posting at that little festival of sock puppets, though it is nice to see that you still have your Googler cranked up to 10. Maybe you will stumble on something.
For the lawyers out there,
Is this gag order really about tainting a prospective jury pool? I am sure that is a side benefit, but wouldn’t the gag order prevent plantiff’s counsel from discussing the case with federal prosecutors?
Bruce, what purpose(s) would a gag order serve? Jury pools are inherently tainted (in the sense of having relevant and/or unfortunate biases and/or perspectives), but why would the defense care at this point if Covington continued to share notes with the FBI or Holder’s Justice Department?
Hi Clio:
My thoughts on this are just mine, and only speculation: I think that this motion would not have been filed except for the plaintiff’s counsel’s recent statement to the press suggesting that you don’t raise the 5th Amendment unless you are guilty of something (paraphrasing).
Trying to look at this objectively, it was an unwise thing for the plaintiff’s counsel to say. While certainly helping his client’s case to put that out to the reading public and possible members of the jury pool, from a professional viewpoint, considering all the Professional Rules and Local Rules on the topic, it was, in my opinion, an unfair and inflammatory tactic, essentially inviting this motion.
First of all, as pointed out in the motion, the statement is simply not “true.” Second, plaintiff’s counsel, as an attorney in DC and familiar with the rules, knew or should have known that it is not “true” and was inappropriate to say even in the heat of fighting for your client. Third, not only did the attorney know that it was not “true,” but he knew it is just the type of statement that non-lawyers and the public would be likely to think as “true,” showing a bit of conniving beyond the pale, so to speak.
I would imagine that other counsel at Covington might take issue with that statement to the press, especially the white collar defense attorneys (referenced in a footnote in the motion) at the firm who likely have clients relying on the 5th Amendment currently and/or may have clients that may do so in the future. Doesn’t help with their jury pools! This statement might have made for some interesting discussions at Covington’s partnership meetings.
You raise an interesting point about “sharing notes” with the FBI or the Justice Dept. Of course, no where in the motion are governmental agencies mentioned. But the effect of the motion if granted as written would seemingly preclude those communications.
It is certainly possible that if the judge is going to grant the motion that the plaintiff’s counsel will ask for an exception to the order regarding governmental communications. It is certainly very doubtful that the governmental agencies would actually intervene as to the motion, to except them from any order.
The trial court will likely not want to be seen as impeding any criminal investigation. But for plaintiff’s counsel to raise the criminal investigation issue seems to give greater credence to the defendants’ claimed 5th Amendment rights in this case. A conundrum.
I think it is quite possible that the judge will not grant the motion, yell at the plaintiff’s counsel for his recent statement and warn that any further similar statements will result in the granting of the motion in all respects.
But I actually think that the Court will more likely grant the motion, as the recent statement by plaintiff’s counsel is kind of outrageous, but allow for any exceptions she may consider on her own, or raised by plaintiff’s counsels in their response brief.
It is quite possible the judge herself will say at the hearing, “But what about the on-going criminal investigation? Does this motion apply to that?”
As to your direct questions, first as to why would the defense care at this point if Covington shares notes with the governmental agencies, I’m not sure if they had that in mind when they did the motion, but anything to slow any criminal investigation of their clients could only help them in that regard, yes?
As to your question regarding what use is the motion with the jury pool being inherently tainted, the only thing I can really say is that I believe that the defense is saying they already are in a tough spot to get a fair trial. Please stop these types of statements, as they just make an already very bad situation worse.
I think based upon some of my speculation in this post, that I again should point out that I am a defense attorney by profession, but a liberal also, and nothing I write, therefore, should ever be given the slightest of thought or consideration.
Thanks, Bruce, for such a comprehensive answer. Even though I may disagree with you on certain key points regarding our trouple, I have come to appreciate your perspective and expertise. XO, Clio.