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Attorney Grievance Commission v. Douglas F. Gansler, Misc. Docket AG No. 81, September Term 2002. [Maryland Rules of Professional Cond uct M RPC 3.1 (Meritorious Claims and Contentions_, 3.6 (Trial Publicity), 3.8 (Special Responsibilities of a Prosecutor), 8.2(a) (Judicial and Legal Officials), and 8.4(a) and (d) (Miscon duct); held: Respond ent, a States's Attorney, did not violate Maryland R ules of Pro fessional C onduct 3.1, 3.8, and 8.4 by prosecuting two juveniles accused of telephoning bomb threats. Respondent did violate Maryland Rule of Professional Conduct 3.6 by making extrajudicial statements regarding a criminal defendant's possibility of a plea of guilty, another crim inal defen dant's con fession, and his opinion as to the guilt of two criminal defendants. For these violations, Respondent shall be reprim anded .]

IN THE COURT OF APPEALS OF MARYLAND

Misc. Docket AG No. 81 September Term, 2002

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. DOUGLAS F. GANSLER

Bell, C.J. Eldridge Wilner Cathell Harrell Battaglia Karwacki, Robert L. (Retired, specially assigned), JJ.

Opinion by Battaglia, J.

Filed: November 12, 2003

Respondent Douglas F. Gansler was admitted to the Bar of this Court on December 18, 1989. On November 7, 2002, the Attorney Grievance Commission of Maryland, by Bar Counse l, acting pursuant to Ma ryland Rule 16-751(a), 1 filed a petition for disciplinary action, alleging that Gansler violated the following Maryland Rules of Professional Conduct (hereinafter "MRPC"): MRPC 3.1 (Meritorious Claims and C ontentions), 2 MRPC 3.6 (Trial Publicity),3 MRPC 3.8 (Special Responsibilities of a Prosecu tor),4 MRPC 8.2(a) (Judicial and
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Maryland Rule 16-751(a) provides: (a) Commencement of disciplinary or remedial action. Upon approval of the [Attorney Grievance] Commission, Bar Counsel shall file a Petition f or Disciplin ary or Reme dial Action in the Court of Appeals. MRPC 3 .1 states: A lawyer shall not bring or defend a proceed ing, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer may nevertheless so defend the proceeding as to require that every element of the moving party's case be established. MRPC 3 .6 states: (a) A lawyer sh all not make an extrajud icial statemen t that a reasonab le person would expect to be disseminated by means of public commu nication if the lawyer kno ws or reas onably should know that it will have a substantial likelihood o f materially prejudicing an adjudicative proceeding. (b) A statement referred to in parag raph (a) ord inarily is likely to have suc h an effe ct when it re fers to a civil m atter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates to: (1) 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; (2) in a criminal c ase or proc eeding tha t could resu lt in incarceration, the possibility of a plea of gu ilty to the offense or

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the existence or contents of any confession, admission, or statement given by a defendan t or suspect or that person's refusal or fa ilure to mak e a statemen t; (3) 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; (4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal cas e or procee ding that co uld result in incarceration; (5) info rmation the la wyer knows o r reasona bly 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 (6) the fact that a defenda nt 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 pres ume d inn ocen t until and unle ss proven guilty. (c) Notwithstanding paragraph (a) and (b) (1-5), a lawyer involved in the investigation or litigation of a matter ma y state without elaboration: (1) the general nature of the claim or defense; (2) the information contained in a public record; (3) that an investigation of the matter is in progress, including the general scope of the investigation, the offense or claim or defense involved and, except when prohibited by law, the identity of the persons involved; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood o f substantial h arm to an in dividual or to the public interest; and (7) in a criminal case: (i) the identity, residen ce, occup ation and f amily status of the accused; -2-

Legal Officials), 5 and MR PC 8.4(a) & (d ) (Misconduct). 6 (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of inv estigating an d arresting office rs or age ncies an d the len gth of th e inves tigation .
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MRPC 3 .8 states: The pros ecutor in a c riminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make rea sonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonab le opportun ity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) make tim ely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense an d to the tribun al all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and (e) exercise reasonable care to prevent an employee or other person under the control of the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6. MRPC 8 .2(a) states: (a) A lawyer shall not make a statement that the lawyer knows to be false or w ith reckless dis regard as to its truth or f alsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office. MRP C 8.4 states in relevant pa rt: It is professional misconduct for a lawyer to: -3-

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The charges arose from numerous extrajudicial statements made by Gansler, who has served as the State's Attorney for Montgomery County since January of 1999. By order dated November 13, 2002 and pursuant to Maryland Rules 16-752(a) and 16-757(c),7 we referred the petition to Judge Julie R. Stevenson of the Circuit Court for Frederick C ounty for an evidentiary hearing and to make findings of fact and conclusions of law. During that hearing, which took place on March 10, 2003, Bar Counsel offered into evidence three videotapes of Gan sler's extrajud icial statemen ts and the report of his expert in the case, Professor Abraham Dash. Professor Dash and Professor Lisa Lerman, Gansler's expert, testified at the hearing. Gansler also offere d his own testimony as w ell as that of tw o Depu ty (a) violate or attem pt to violate the Rules of Professional Condu ct, knowin gly assist or induc e another to do so, or do so through the acts of an other; *** (d) engage in conduct that is prejudicial to the admin istration o f justice . . . .
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Maryland Rule 16-752(a) states: (a) Orde r. Upon th e filing of a P etition for Disciplinary or Remedial Action, the Court of Appeals may enter an order designating a judge of any circuit cour t to hear the action and the clerk responsible for maintaining the record. The order of designation shall require the judge, after consultation with Bar Counsel and the attorney, to enter a scheduling order defining the extent of d iscovery and s etting dates f or the com pletion of discovery, filing of motions, and hearing. Maryland R ule 16-75 7(c) states in p ertinent part: (c) Findings and conclusions. The judge shall prepare and file or dictate into the record a statemen t of the judge's findings of fact, including findings as to an y evidence regarding remedial action, a nd con clusion s of law . . . . -4-

State's A ttorn eys fo r Mo ntgo mery Cou nty. Judge Stevenson filed a Report and Recommendations on April 29, 2003, in which she presented findings of fact and conclusions of law. Judge Stevenson concluded that Bar Counsel had presented clear and convincing evidence that Gansler, in one instance, had violated MRPC 3.6(a); however, in Judg e Stevenson's judgmen t, the evidenc e insufficie ntly supported Bar Counse l's charges that Gansler had violated MRPC 3.6(a) in other instances and had violated other MRPC provisions. Both Bar Counsel and Gansler filed exceptions to Judge Stevenso n's findings and con clusions. We overru le Gansler's exception and conclude, further, that he violated MRPC 3.6(a) on more than a single occasion. Accordingly, as to Gansler's extrajudicial statements in which he discussed Cook's confession and his op inion of C ook's and Lucas's g uilt, exceptions. I. Facts The undispute d facts in this case have been proven by clear and convincing evidence as required by Maryland R ule 16-75 7(b). Thos e facts dem onstrate that, between 2000 and 2001, Gansler made several extrajudicial statements in connection with his office's prosecution of various well-publicized crimes. A discussion of the circumstances of each of the extrajudicial statements follows. 8
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we sustain Bar C ounsel's

The facts we present in this section are based on the findings of fact and evidentiary items relied upon by the hearing judge in her Report and Recommendations.

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A. The Cook C ase In late January of 2001, Su e Wen S tottsmeister was found beaten and unconscious. She had been accosted while jogging along a recreational path located in the Aspen Hill area of Montgomery County. Ms. Stottsmeister ultimately died from the injuries she suffered during that attac k. Nearly six-months later, on June 4, 2001, Alb ert W. Cook, Jr. allegedly attacked a woman near his home. Witnesses of that attack chased and kept visual contact with Cook until police arrived and arrested him for that incident. While the police were investigating the June 4 , 2001 attack, they began to focus their attention on Cook as a suspect in the murder of Stottsmeister. In the afternoon of June 5, 2001, police officials convened the media for a press conference. Before the press conference began, a Washington D.C. television station broadcasted a report that large sneaker footprints had been found at the scene of the murder and that Cook had large feet that might fit sneakers of that size. The press conference then commenced, and the police announced that Cook would be charged with th e Stottsm eister m urder. Gansler attended th at press con ference a nd made several statem ents to the m edia regarding the anticipated prosecution of Cook. He described Cook's confession and the circumstances surrounding his custodial statements to police: The police were able to obtain a co nfession c ompletely consistent with [Co ok's] cons titutional rights, he confessed within just a few h ours with in credible de tails that only the murderer would have k nown . He was then provided the -6-

opportun ity to rest and . . . he slept, and where he had said was one of the best nights of sleep he had gotten in a long time. This morning at dawn, he was taken up to the crime scene, video taped by police, and went over in detail by detail every step of wha t he d id to Ms. Stottsme ister this p ast Ja nuary. Gansler further stated that investigators had "boot print matches and that type of thing, o r actually in this case the sneaker m atches, but w e're very conf ident, obvio usly more than confid ent that w e have appreh ended the righ t person . . . ." After the press conference, police charged C ook with the mu rder of Stottsmeister. 9 The statement of charges, which was filed in the District Court of Maryland, Mon tgomery Cou nty, stated: "Cook provided a full and detailed account of the assault and murder of Stottsmeister. . . . Cook pro vided deta ils about the murder that would only be known by the perpetr ator of t he crim e." B. The Lucas Ca se While asleep during the middle of the night, Mon signor T homa s Mar tin We lls, a revered member of the Montgom ery County com munity, was b eaten and killed in the rectory at his paris h. On June 17, 2000, the Montgomery County police arrested Robert P. Lucas and charged him with the murder of Monsignor Wells. The statement of charges stated that the police had observed Lucas "wearing shoes having a shoe print consistent with the ones found on the crime scene" and that after Lucas was arrested, he "admitted breaking into the church
9

Judge Stevenson noted, specifically, that the statement of charges in Cook's case had not been filed at the time of the June 5, 2001 press conference. -7-

rectory and responsibility for Well's murder." The police held a press conference on June 18, 2000 to announce the arrest of Lucas and the charges against him. Gansler spoke at the press conference: The Montgomery County Police . . . were able to determine definitively that indeed it was Mr. Lucas who had committed the crime. They were able to do so by following him. They conducted surveillance for over 24 hours. And then when they actually found him, he was wearing a very unique shoe, a very unique boot, and the print of that boot matched the print that was found at the scene of the crime, and then further questioning revealed, in f act, he wa s the person that had do ne it. He offered several remarks about the evidence against Lucas, which he described as "a confession from the perpetrator as well as sc ientific and forensic evidence to corroborate that confession . . . ." Gansler then expressed his opinion that "we have found the person who committed the crime at this point" and that the case against Lucas "will be a strong case." Add ition ally, Gansler commented at the press conference that "it was a violent murder" and that Lucas "has a criminal record which includes residential burglaries and that will be obviously something that will come out later on as well." In fact, Lucas's criminal record came out again later, when Deputy State's Attorney Katherine Winfree discussed it at Lucas's bond hearing on the Monday after the press conference. C. The Perry C ase James Edw ard Perry was convicted in the Circuit Court for Mo ntgomery C ounty of first-degree murder an d sentence d to death for his role in the 1993 killings of an 8 year-old quadripleg ic boy, the boy's mother, and a nurse. Although upheld on direct appe al, in post-8-

conviction proceedings, Perry's conviction was reversed by this Court on December 10, 1999. On Januar y 4, 2000, the Washington Post ran an article describing Ga nsler's discussions with family members of the victims of the 1993 murders. The article explained that Gansler had asked the family members whether Perry should be retried or offered a plea agreeme nt. Quoted in the article was Perry's attorney, William Jordan Temple, who commented that he "certainly would look forward" to a plea offer because "anyone faced with th e possib ility of a de ath pen alty consid ers an o ffer of life." While preparing for Perry's retrial, Gansler made extrajudicial statements that the Gazette Community News published on April 5, 2000. According to the Gazette 's report, Gansler had announ ced that "he has decide d to offer [Perry] a plea bargain" and that, "when the offer is for mally presente d, Perry wou ld have six week s to make a decision." T he article also recounted the events of a hearing in the Perry case, held the day before, at which the court appointed new defense counsel. At that hearing, according to the Gazette , the

prosecutor "did not mention the plea bargain offer" and Perry's lawyers "declined to discuss a plea o ffer or any detail s abou t the case ." On or about July 6, 2000, Gansler again appeared in front of television cameras. Responding to questions from the media, Gansler remarked that "the Court of Appeals' decision to reverse the original conviction of Mr. Perry was a completely result oriented opinio n." Gansler expressed his view that the "four to thre e" opinion "wa s clearly an effort

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to over turn the death p enalty in th e Perry ca se." D. The Bomb Threat Case On February 8, 2000, the Montgomery County Journal published an article reporting the dismissal of charges against two Montgomery County teenagers who had been accused of calling bom b threats to W heaton H igh Scho ol. At the juve niles' trial, the State presented evidence of two telephone calls that purportedly were the bomb threats. One of the calls, the article stated, could not be linked to eithe r juvenile , and the o ther had been mad e three da ys prior to the alleged bomb threat. The article quoted the presiding judge, who in dismissing the charges, said , "I have no idea who did this" and "I have no evidence." The Journal account relayed Gan sler's comm ents that "his office will continue to prosecute youths suspected of making bo mb threats, even if the case is not strong enough to w arrant a convic tion." Gansler was q uoted a s saying, " We try ha rd case s. . . . Juveniles w ho phon e in bomb threats will be prosecuted. It's more important to prosecute someone and have them acquite d[sic] th an let the m com mit crim es with impun ity."10 II. The Hearing Judge's Conclusions of Law
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In the proceedings before the hearing judge, Bar Counsel presented evidence of numerous other extrajudicial statements by Gansler that Bar Counsel considered objectionable. The hearing judge's Report and Recommendations do not refer to those other statements, and Bar Counsel has not raised any exceptions based on those statements. Because Bar Counsel failed to take exceptions to the hearing judge's factual findings, we consider only those statements discussed by Judge Steven son to b e at issue . See Maryland Rule 16-759(2)(B) ("The [Cou rt of Appeals] may confine its review to the findings of fact challenged by [a party's] exceptions.").

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The hearing judge concluded that Gansler committed a single violatio n of M RPC 3.6 by making extrajudicial statements about his decision to offer a plea agreement in the P erry case. The judge determined that those statements clearly violated the general proscriptions of MRPC 3.6(a) as well as the specific provisions of MRPC 3.6(b)(2) limiting extrajudicial references to plea agreements. Furthermore, in the hearing judge's estimation, Gansler's plea agreement remarks found no safe harbor under M RPC 3 .6(c), which provides th at certain types of statements are perm issible even though, under MRPC 3.6(a), those statements might have a "substa ntial likel ihood o f mater ially prejud icing an adjudic ative pro ceedin g." The hearing jud ge found no violations with respect to Gansler's other extrajudicial statements. The judge con cluded that Gansler's references to the physical evidence against Cook and Lucas fell under the safe harbor provision of MRPC 3.6(c)(2), which allows a lawyer to state, " without elaboration," "information contained in a public record" notwithstanding the strictures of MRPC 3.6(a) or MRPC 3.6(b). In the hearing judge's view, the "public record" safe harbor suffered from First Amendment vagueness concerns because it was susc eptible of m ultiple and w idely varying interpretations. Lacking a precise

definition, the judge indicated that the terms "without e laboration" and "pub lic record" fa il to provide lawyers with adequate guidelines for determining when "remarks pass from protecte d to pro hibited." The hearing judge, however, conveyed concern over Gansler's comments regarding the Cook and Lucas confessions, which, she stated, "clearly do no fall under [the safe harbor

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provision of MRPC] (c)(2)," violated "the spirit of [MRPC] 3.6" and "could create a substantial likelihood of materially prejudicing an adjudicative proceeding." Nevertheless, the judge fou nd no vio lations of M RPC 3 .6 in these comme nts becaus e she determ ined that, due to their timing, no material prejudice actually flowed from them.11 The judge examined Gansler's extrajudicial criticism of this Court's reversal of Perry's conviction in light of MRPC 8.2. The judge agreed with Bar Counsel's expert, who considered Gansler's comments "a lawful and appropriate expression of opinion protected under the First Ame ndme nt of the United States C onstitutio n." Con sequ ently, the hearing judge determined that Gansler had not violated MRPC 8.2. Fina lly, the hearing judge concluded that Bar Counsel had not demonstrated that Gansler violated MRPC 3.1 or MRPC 3.8(a) by making comments regarding his intended prosecution of youths suspected of making bomb threats. The judge was persuaded by Gansler's hearing testim ony that "his inte nt was no t to prosecu te in bad faith " but, rather, to stress that "the State often m ust try case s diffic ult to pro ve." Specifically finding Gansler's testimony credible, the hearing judge concluded that Bar Counsel had not presented clear and convincing evidence that Gans ler intended to prosecute without probable cause in violation of MRP C 3.1 and M RPC 3.8(a). As we noted earlier, both parties filed exceptions to the hearing judge's conclusions.
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The hearing judge stated that she reached this conclusion "with reluctance" and that she w as "trou bled by su ch statem ents ma de by an e lected S tate's A ttorney pr ior to trial."

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Bar Counsel maintained that the hearing judge's finding of a single violation was in error and that the evidence clearly and con vincingly supported a conc lusion that Gansler violated MRPC 3.6 on n umero us occa sions. In addition, Bar Counsel argued that Gansler intended to prosecute w ithout proba ble cause, in violation of MRPC 3.1, MRPC 3.8, and MRPC 8.4(d). Bar Counsel, however, took no exception from the hearing judge's conclusion that Gansler did not violate MRPC 8.2. Gansler found no fault with most of the hearing judge's findings and conc lusions, exce pt, howev er, for her de termination that his com ments regarding the plea offer to Perry had violated MRPC 3.6. III. Standard of Review Our recent opinion in Attorney Grievance Comm'n v. Zdravkovich, 375 Md. 110, 126, 825 A.2d 418, 427 (2003), iterated our well established and frequently recognized standa rd of review in attorney disciplinary matters: This Court exercises "`original and complete jurisdiction for attorney disciplinary proc eedings in M aryland,' and c onducts `an independent review of the record.'" Attorney Grievance Comm 'n v. Blum, 373 Md. 275, 293, 818 A.2d 219, 230 (2003) (quoting Attorney Grievan ce Comm 'n v. McLa ughlin , 372 Md. 467, 492, 813 A.2d 1145, 1160 (2002)(citations omitted)). "In conducting that review, we accept the hearing judge's findings of fact as prima facie correct unle ss shown to be `clearly errone ous,' and we give due regard to the hearing judg e's opportun ity to assess the credibility of witnesses." Attorney Grievance Comm'n v. Wallace, 368 M d. 277, 288, 793 A.2d 535, 542 (2002)(citation omitted). "As to the hearing judge's conclusions of law," however, "`our consideration is essentially de novo .'" Attorney G rievance C omm'n v. Dunietz , 368 Md. 419, 428, 795 A.2d 706, 711 (2002) (quoting Attorney Grievance Comm'n v. Thompson , 367 Md. 315, 322, 786 A.2d -13-

763, 768 (2001) (quoting Attorney Grievance Comm'n v. Briscoe, 357 Md. 554 , 562, 745 A.2d 1 037, 1041 (200 0))). IV. Discussion A. M RPC 3.6 This case serve s as this Court's first opportunity to consider the application of MRPC 3.6, the rule of professional responsibility governing trial publicity. More significant than the case 's no velty, however, are the balance and interplay of the numerous interests, rights, and responsibilities involved. To provide the proper context for understanding the important issues presented, w e begin with a historical discussion of the regulation of trial publicity. We then proceed to dissect Maryland's present rule and apply it to the extrajudicial sta tements in contr oversy. 1. Orig ins of th e MR PC 3 .6 Criminal justice must be carried out in the courtroom.12 As Justice Holmes declared in Patterson v. Colorado , 205 U.S. 454, 462 , 27 S. Ct. 556, 558, 51 L . Ed. 879, 881 (190 7), "[t]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argu ment in open court, and not by any outside influence, whether of private talk or p ublic pr int." The constitutional underpinnings for this concept reside in the Sixth Amendment's right to a fair trial, made applicable to our State thro ugh the F ourteenth
12

For extended discussions of the origin and historical development of the modern rules governing trial pub licity, see C harles W . Wolf ram, M ODERN L EGAL E THICS at 633-34 (1986); Alberto Berna be-Rie fkohl, Silence is Golden: The New Illinois Rules on Attorney Extrajudicial Speech, 33 LOY. U. C HI. L. J. 323 (2002).

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Amen dment. 13 Ristaino v. Ross, 424 U.S. 589, 595 n.6, 96 S. Ct. 1017, 1020 n.6, 47 L. Ed. 2d 258, 263 n.6 (1976) ("A criminal defendant in a state court is guaranteed an "impartial jury" by the Sixth Amendment as applicable to the States through the Fourteenth Amendment.") (citing Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968)); see Estes v. Texas, 381 U.S. 532, 540, 85 S. Ct.1628, 1632, 14 L. Ed. 2d 543, 549 (1965) (describing the right to a f air trial as "the most f undame ntal of all free doms"). A rticle 21 of the Marylan d Declara tion of Rig hts also gua rantees the rig ht to a fair trial in all criminal prosecutions.14 The text of the S ixth Am endmen t makes cle ar that a fair trial co nsists of numerous components, including, but certainly not limited to, the rights of an accused to a public trial
13

U.S. C ONST. amend. VI provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses a gainst him; to have compu lsory process for obtaining witnesses in his favor, and to have the Assista nce of Coun sel for h is defen ce. Article 21 of the Maryland Declaration of Rights provides: That in all criminal p rosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the Indictmen t, or charge, in due time (if requ ired) to prepare for his defence; to be allowed counsel; to be confronted with the witnesses against him ; to have pro cess for his w itnesses; to examine the witnesses for and against him on oath; and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.

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and impartial jury. These compon ents alone, of course, do n ot necessarily ensure a fair trial, as Chief Justice Warren explained: It has bee n held . . . that the funda mental co nception o f a fair trial includes m any of the spe cific provisio ns of the S ixth Amendment . . . . But it also has been agreed that neither the Sixth nor the Fourteenth Amendment is to be read form alisti cally, for the clear intent of the amendments is that these specific rights be enjoyed at a constitutional trial. In the words of Justice Holmes, even though "every form [be] preserved," the forms may amou nt to no "m ore than an empty shell" when c onsidered in the context or setting in which they were actually applied. Id . at 560, 8 5 S. Ct. at 1641, 14 L. Ed. 2d at 560 (Warren C. J., concurring). Thus, even where a court has observed all of the Sixth Ame ndment form alities, it is possible for a defendant to be deprived of a fair trial if circumstances occurring outside the courtroom taint the procee dings. See Rideau v. Louisiana , 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963) (holding that a defendant's fundamental due process rights had been violated because a local television station had broadcasted his confession, and he was denied a change of venue). One outside circu mstance th at may affec t a defend ant's right to a f air trial and, spec ifica lly, his ri ght to an impartia l jury, occurs when an attorney makes a publicized , outof-court statement about the defendant's case. This is particularly true beca use a ttorn eys occupy a special role as participan ts in the criminal justice system, and, as a result, the public may view their speech as authoritative and reliable. Attorneys involved in a particular case have greater acce ss to inform ation throug h discove ry, the ability to conver se privately with -16-

knowle dgeable witnesses, and an enhanced understanding of the circumstances and issues. Their unique ro le and exten sive access to informa tion lends a d egree of c redibility to their speech that an ordinary citizen's speech may not usually possess. Comments by prosecuting attorneys, in particular, have the inherent autho rity of the government and are more likely to influence the public. When such seemingly credible information reaches the ears or eyes of the public, the jury pool may be come co ntaminated , greatly diminishin g the court's ability to assemble an impartial jury. The defendant's right to a fair trial, thus, may be

compromised. See Joan C . Bohl, Extrajudicial Attorney Speech and Pending Criminal Prosecutions: The Investigatory Com missio n Mee ts A.B.A . Mod el Rule 3.6 , 44 K AN. L. R EV. 951, 973-74 (1996) (discussing how attorney speech differs from the speech of other individuals). Limiting extrajudicial attorney speech to preserve a fair trial, however, can be accomplished only in a way tha t is consistent with the fundamental right to free expression under the First Amendment. In general, the First Amendment applies equ ally to an ordinary citizen and an atto rney, as long as the attorney "plays no lawyerly role in the matter under comm ent." See C HARLES W. W OLFRAM, M ODERN L EGAL E THICS at 632 (198 6). On the other hand, when the attorney has so me profe ssional relation ship to a matter, the attorney's freedom to speak about it is not as broad. For instance, inside the courtroom, the rules of evidence and princip les of releva nce place r igid restrictions upon wha t an a ttorn ey ma y say, and when and ho w he o r she m ay speak . Even outside the courtroom, the speech of a lawyer

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may be curtailed to an extent greater than an ordinary citizen's. In the arena of attorney advertising, the Supreme C ourt has upheld a state's thirty-day waiting period for solicitation letters by plaintif fs' pers onal inju ry lawyers, see Florida Bar v. Went For It , Inc., 515 U.S. 618, 115 S. Ct. 2371, 132 L. Ed. 2d 541 (1995), and a state's ban on in-person attorney solicitations, Ohralik v . Ohio State Bar Ass'n , 436 U.S. 447, 98 S. Ct. 1912, 56 L. Ed.2d 444 (1978). In 1908, the American Bar Association first attempted to control the ill effects of attorney-generated trial publicity through the development of professional standards entitled "Canons of Professional Ethics" (hereinafter the "ABA Canons"). Many states adopted the ABA Canons, including Canon 20, which "[g]enerally . . . condemned" newspaper publications "by a lawyer" regarding a pending case because such publications "may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice." 15 See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1066, 111 S. Ct. 2720, 2740, 115 L. Ed. 2 d 888, 9 18 (19 91); A lberto B ernabe -Riefk ohl, Silence is Golden: The New
15

The full text of Canon 20 stated: Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the Courts and otherwise prejudice th e due adm inistration of ju stice. Gene rally they are to be condemned. If the extreme circumstances of a particular case justify a statem ent to the pu blic, it is unprofessional to make it anonymously. An ex parte reference to the facts should not go beyond quotation form the records and papers on file in the court; but ev en in extrem e cases it is better to av oid a ny ex parte statement.

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Illinois Rules on Attorney Extrajudicial Speech, 33 LOY. U. C HI. L. J. 323, 331 (2002) (hereinafter Bernabe-Riefk ohl). The M aryland State B ar Assoc iation form ally adopted the ABA Cannons in 1922. Canons of Ethics, Adopted by the Maryland State Bar Association, Annual Session 1922 at 1. Despite the widespread adoption of the ABA C anons, trial pu blicity continued to affect defendants' Sixth Amendment rights and, consequently, gained the attention of the Supreme Court during the 1950s and 1960s. The Court dealt with the detriments of excessive media involvement in cases by reversing a number of criminal convictions on the ground that excessiv e trial publicity deprived the defendants of due process. Estes v. Texas, 381 U.S. 53 2, 85 S . Ct.162 8, 14 L . Ed. 2d 543 (1965) (holding that a defendant had been denied due process because a pre-trial hear ing had be en televised live and the n rebroad cast, and because the court proceedings had been disrupted by the presen ce of the media); Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963) (reversing a conviction after the defendant had been denied a change of venue even though a local television station had broadcas t his recorded confessio n three times, and 106,000 of the estimated 150,000person commu nity viewed th e broadca st); Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961) (reversing a conviction where pre-trial publicity distributed in the vicinity of the trial in cluded , inter alia , media accounts of the defendant's juvenile record, the confessions to several murders, and p revious court-martial proceed ings); Marshall v. United States, 360 U.S. 310, 79 S. Ct. 1171, 3 L. Ed. 2d 1250 (1959) (reversing a conviction because

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seven of twelve jurors had b een expo sed to news accounts of evidence that was not admitted at trial). The leading case during this era, which identified the need for trial publicity reform and shaped the American Bar Association's (hereinafter "ABA") remedial measures, was Sheppard v. Maxw ell , 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). There, the Court, on due process grounds, reversed the murder conviction of Sam Sheppard, whose high-prof ile trial had been p recede d and p ervade d by a me dia fren zy. Id at 363, 86 S. Ct. at 1522-23, 16 L. Ed . 2d at 621. N ewspap ers had do cumente d Shepp ard's alleged refusal to cooperate with investigating officials and had published articles discussing incriminating eviden ce that w as neve r admitte d at trial. Id . at 338-41, 86 S. Ct. at 1509-11, 16 L. Ed. 2d at 606-08. During trial, membe rs of the m edia frequently moved in and out of the courtroom, causing so much noise and confusion that it became difficult to hear lawyers and witnesses. Id . at 344, 86 S. Ct. at 1513, 16 L. Ed. 2d at 610. Furthermore, reporters had crowded the defense table at trial, making it very difficult for Sheppard to have priva te discussion s with his couns el. Id . Despite the chaotic conditions, the trial judge refused to allow a change of venue and failed to take steps to control the adverse effects of the publicity. Id . at 354 n.9, 358-59, 86 S. Ct. at 1518 n.9, 1520, 16 L. Ed. at 615 n.9, 618. The Supreme C ourt admonished the trial court in Sheppard for its failure to control the e xtrajudicial p ublicity: The fact that many of the prejudicial news items can be traced to the prosecu tion, as well as the defense, aggravates the judge's -20-

failure to take any action. Effective control of these sources

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