Oct 13, 2010

A Question Of Contempt And Consequences

The op-ed piece below is so spot on that I wish I had written it. I found it in the Connecticut Law Tribune, a magazine that has become one of my favorite online reads, mostly due to the quality of its writers, with the exception of one Norm Pattis, local lawyer/blogger who
I just discovered is a regular at the Tribune, very nearly causing me to re-consider my membership.

Ironically, Pattis it turns out, is pointedly referenced in the article posted below, and wouldn't you know it-- in a decidedly unflattering manner He also has an Op-ed piece in the very same issue which naturally takes the contrarian viewpoint. It appears to be something akin to a point/counterpoint type of deal, whether it was impromptu or planned remains to be seen.

In any event, kudos to Jeffrey Meyer for making a cogent case for Jeremiah Donovan to be found in contempt of court and also putting Pattis in his well-deserved place.

Of Contempt And Consequences

It is thankfully rare when a criminal lawyer turns criminal defendant. Yet later this month a lawyer for accused triple-murderer Joshua Komisarjevsky faces a well-deserved criminal contempt hearing before a judge in New Haven.

Defying a court-imposed “gag” order, attorney Jeremiah Donovan convened a press conference on the courthouse steps during a lunch break in the trial of co-defendant Steven Hayes. For Donovan, it was a chance to bask in the glow of cameras and prime billing on the six o’ clock news. But for our judicial system, the ensuing contempt case is a significant test of how to respond to a lawyer who openly exceeds the legitimate bounds of advocacy and at the expense of his client’s victims.

When Donovan sidled up to the cameras, he described in terms that don’t dignify repetition here the sexually graphic details of his client’s assault upon young Michaela Petit. He minimized what his client did and claimed it squared with the Hayes trial evidence and the confession his client gave the police. His client’s police confession was not part of the trial evidence in the Hayes case. Indeed, a prime reason why Komisarjevsky and Hayes insisted on burdening the State and the Petit family with separate trials was to prevent the use of their police confessions against one another.

Donovan’s justifications for staging a press conference were absurd. He said it was to offer some “small solace” to the Petit family. He said he couldn’t talk with the Petit family except through the media. He said it didn’t violate the gag order for him to speak if he didn’t answer follow-up questions. He later claimed (wrongly) that incurring a contempt citation was “the only way we could appeal” the gag order.

It is fair to ask if Donovan was emboldened by Komisarjevsky’s mockery of the gag order last year when he shared his story with the author of a sensationalist book. The book’s author told the Hartford Courant that defense attorneys were aware of what he was doing. Komisarjevsky faced no consequences and, so far as the public record suggests, no one has investigated whether Komisarjevsky’s defense team was privy to this publicity ploy.

How will Donovan defend his press conference now? Maybe he’ll claim privilege under an ethics rule that allows a criminal defense lawyer to “make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.” See Conn. Rules of Professional Conduct 3.6(b). But, as the rule’s commentary makes clear, it is subordinate to any supervening court order such as the gag order here.

Donovan could have asked the court’s permission had he thought it vital to protect his client with a lunchtime keynote to the worldwide media.

Donovan might also don the cloak of the First Amendment. But the Supreme Court has declined to protect statements for which a reasonable lawyer would know there is a substantial likelihood of materially prejudicing a trial. See Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). That standard is likely met here given the mid-trial timing of Donovan’s statements and his allusion to inadmissible evidence.

No matter the outcome, the Donovan contempt fiasco could derail the prosecution of Komisarjevsky – and maybe that was the point all along. If Komisarjevsky goes to trial while the contempt charges or any appeal are still pending against Donovan, he could later challenge any conviction on the ground that Donovan, as a target himself of current criminal prosecution, had a conflict of interest. See, e.g., Armienti v. United States, 234 F.3d 820, 824-25 (2d Cir. 2000).

To make matters worse, Walter C. Bansley III, who is Donovan’s co-counsel, has myopically decided to represent Donovan in the contempt case. This could open the door for Komisarjevsky to claim that Bansley had divided loyalties between his real client (Komisarjevsky) and his co-counsel-cum-contempt-client (Donovan). If all this messiness provokes the court to act now to oust Donovan and Bansley, then expect another year or more for the trial of Komisarjevsky as new counsel would have to prepare the case.

As if the real issue weren’t an attorney who flouts a court order rather than lawfully challenging it, Law Tribune columnist Norm Pattis has recently urged in these pages that the gag order should be extended to the whole Petit family. Yes, that’s right, gag all the victims. But we don’t live in a society where criminals may murder and judges may silence their survivors from speaking about the horrors done to them (or even where judges may silence non-party lawyers like Pattis from insulting the Petit family). Don’t blame the victims for Donovan’s misdeed.

It’s a truism that attorneys are “officers of the court” who should strive to abide by court orders, not to treat them as stationary objects for circumvention. That’s true even for death penalty cases, as almost all defense lawyers know. As a former federal prosecutor, Donovan may once have respected the rights of crime victims who are drawn into our

far-from-perfect criminal justice system through no fault or choice of their own. He may once have known that basic decency does not license a lawyer to soliloquize on the courthouse steps about his client’s attack on an 11-year-old girl. Contempt should have its consequences.•

Jeffrey A. Meyer is an adviser to Dr. William A. Petit Jr., and a Professor of Law at Quinnipiac University School of Law and Visiting Clinical Professor of Law at Yale Law School.


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Anonymous said...

Since Jeffrey Meyer represents Dr.Petit hasn't he violated the gag order as well?

Laurel O'Keefe said...

The article notes that Meyer is advising Dr Petit, and I am told that he is a non practicing attorney who teaches law and is advising Dr Petit as a friend or a olleague would: The victim/survivor of these crimes, BILL Petit has no choice but to rely on the proesecutor as his official lawyer-like voice. Even if Jeffrey Meyer were an actual practicing attonrey he has no legal rights to address the judge or the court in the criminal case. Also Dr Petit and his family are not bound by the gag order it turned out, a fact that was unbeknowst to them for nearly three years after the order was placed by Judge Damiani.h=jUST ABOUT three mnths ago they discovered the order did not inlcude them after all and yet they still chose to remain silent just to be safe and to honor the memory thier fasmily. Too bad Ulmann and Donovan have no such decency,