Archive for category: Law

Paul Kiel reported this morning that Brent Wilkes doesn’t want the government to mention the prostitutes that Wilkes engaged as part of his bribe scheme to influence Duke Cunningham (here’s the filing). And if the Court doesn’t exclude the testimony about prostitutes, Geragos threatens, he’s going to haul the prostitute whose calendar has been submitted as a business record into court so he can delve into her record-keeping practices. That might be fun.

But I’m more interested in the possibilities presented by two of Wilkes’ other filings. The first objects to the government’s attempt to exclude duress as a defense. Geragos argues that the case law the government cites doesn’t apply, either because the cases pertained to evidence excluded during jury instructions, or because the case wasn’t directly on point.

Here, without having seen the government’s case, the defense has no way of knowing whether the prosecution’s theories of liability and evidence will necessarily foreclose a necessity or duress defense. Tellingly, the government cannot cite controlling authority holding that extortion is not a defense to the offenses charged against Mr. Wilkes. Instead, the government makes its argument through meandering statutory construction analysis and metaphor. Indeed, the only case it cites for a holding regarding the application of federal law does not address whether extortion is a defense to bribery, but rather whether extortion and bribery charges brought in the same case are mutually exclusive.

It’s unclear whether Geragos is just objecting to the government’s attempt to exclude a defense based on extortion for kicks, or whether the government was correct in anticipating that that may be what Wilkes intends to argue. In any case, though, Geragos seems intent on postponing any decision about the appropriateness of a duress defense until after he presents his case.

Gary Hengstler, Director Reynolds Center for the Courts and Media. Importance of having a judicial strategy for the media. Who makes editorial decisions now? previously, you’d give everyone access. BC of conglomeration, editorial decisions are not being made by journalists, they’re being made by commercial interests. Justice is in the entertainment and media field becoming a commodity. Tools to work with the media. Protective order. If you’re a journalist, they’re a gag order; if you’re a judge, they’re a protective order. Are they doing the reverse of what they were intended to, because in the absence of having the lawyers who know about the case, you’ll have the people who are speculating. To what extent is that counter-productive.

LeRoy Millette, Jr., Circuit Court, Prince William County. Presided over Bobbitt case, and John Mohammad case. One of the most important things in Mohammad trial was appointing really good lawyers. They agreed not to speak to the media. They considered the possibility that Mohammad would be tried in other jurisdictions. Incredible amount of discovery that was available–a lot of it that would not be allowed in trial. Did not put that information out for the media to have access to. Biggest problem: Malvo had confessed, that confession was suppressed in Fairfax, believe it was disgruntled law enforcement official. Main tool for a fair jury was change of venue. Gave jurors numbers, they used judges lunch room, questioned jurors to make sure they remained impartial. Want to make court room as normal as you can.

Terry Ruckriegle, Breckenridge, presided over Kobe’s trial (not the poodle, but the basketball player). Information got leaked before charges were filed. Decorum order, outlining guidelines for conduct. Approximately 20% of the filings were on the part of the media responding trying to open proceedings.
Court Reporter accidentally released portion of transcripts from closed hearings. Issued an order to delete and destroy those transcripts. "Of course, as you heard Lucy Dalglish say earlier, that’s prior restraint, which is like poking a sleeping bear with a stick." That order worked temporarily, Colorado Supreme Court upheld in 4-3 decision. Justice Breyer issued an order. Eventually released about 90% of those transcripts. Accuser’s civil attorneys launched a blitz as a result of the release, eventually withdrew from suit. Possibility of prosecutors, defense attorneys, other sources, you may have another source of information being put out to the public through the public.

On the comparative access panel, we got the European and Canadian perspective on media access, with a really interesting panel from Gavin Phillipson arguing that in the US the claims of the First Amendment are actually serving commercial interests. He argued that the British system, which made people responsible for leaks, was better.

Lucy Dalglish argued that we don’t have as much access as the others made out.

I asked whether the Wen Ho Lee and Hatfill cases are forcing us into a position akin to the British one Phillipson described–that media organizations have to pay the price for improper government leaks. Dalglish didn’t really respond, but the WaPo lawyer agreed afterwards that’s where we may be heading.

In the Institutional Response to Crisis, Judith Clair and Ron Dufresne used my example of the 80% of the blogosphere that was "dreck" (not my word") and the 20% that had acquired reputation. Clair talked about understanding the structure of the blogosphere before crisis, so you could reach out to the blogosphere. Dufresne pointed out that you might not want to reach out to the 80%–how do you identify who is what? This is, of course, a question Congress and the Courts and Read more →

As expected, Mark Geragos is in CA trying to keep Brent Wilkes out of jail. And perhaps to subpoena a bunch of corrupt Congressmen.

Laurie Levenson
Makes a joke about Geragos being in trial or on TV or both.

Talks about loading up your pleadings–"they’re more likely to get it right." You can comment on public records, so put stuff in your pleadings so you can refer back to it.

Discussion of cameras in the court room. May be courts saying cameras are alright in near future.

Should there be ethical codes on those who appear on the press? (Victoria Toensing, I’m looking at you!!) Suggestion of voluntary guidelines. Should lawyers have to disclose biases (she raises Geragos commenting on Scott Peterson case after having representing him (or do I have it reversed or the wrong damn pop culture case)?

Michael Tigar

Makes a case for the importance of First Amendment protections in cases.

Notes that on Nichols case, people would talk to NYT but not the defense team themselves.

"If you’re not restrained it harms the client. I don’t think jurors like it." Quotes a juror saying, "I think it makes a piss poor impression," appearing on TV.

Sound bite journalism is bad for the client, because we are not in charge of how it’s used.

Harold Haddon

Talks about the JonBenet Ramsey case–the leaks from the FBI and Boulder authorities in an attempt to get one of the parents to flip on the other.

Defense lawyers without as much information as the police early in the case–prevents defense lawyers from speaking publicly when the narrative on the trial is being set.