United States v. Bulger

UNITED STATES

v.JAMES J. BULGER

Crim. Action No. 99-10371-DJC

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

July 1, 2013

MEMORANDUM AND ORDER

CASPER, J.

I. Introduction

The Defendant, James Bulger ("Bulger"), has now moved to vacate this Court's prior ruling, D. 973, barring the parties from violating Local Rule 83.2A of this Court on the grounds that it is unconstitutional under both the First Amendment and Sixth Amendment. D. 1051. For the reasons discussed below, the Court DENIES this motion.

II. Relevant Factual Background

Bulger filed this motion on the eve of the ninth day of testimony in the ongoing trial in this case. At trial, Bulger is facing charges for participation in an alleged racketeering conspiracy involving, among other crimes, murder, extortion and money laundering (Count 1) and separate charges of racketeering, money laundering, extortion, and a range of firearms crimes (Counts 2-27, 39-40, 42, 45 and 48). There has been extensive coverage of this case by numerous media outlets, representatives of which attend and report on the proceedings on a daily basis.

Prior to the commencement of trial, counsel for the government moved to bar Bulger's counsel from making extrajudicial statements following appearances in this Court, which hadbeen a regular practice of defense counsel during the pretrial phases of this case. D. 927. At the hearing on this motion, counsel for Bulger acknowledged the provisions of the Local Rule, the distinction that the Local Rule made about extrajudicial statements during the course of the trial and asserted that he would strictly follow the Local Rule. D. 1010 at 58-61 (Transcript of 6/3/13 Final Pretrial Conference). The Court granted the government's motion in part, ordering counsel for both parties to comply with the Local Rule 83.2A, but denied the motion to the extent the government sought a broader order to bar extrajudicial statements by defense counsel. D. 973.

III. Discussion

A. Local Rule 83.2A

This District Court's Local Rule 83.2A, adopted on September 1, 1990, "represents part of this District Court's response to the Supreme Court's direction [in Sheppard v. Maxwell, 384 U.S. 333, 363 (1966)] that: '[t]he courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function.'" United States v. Flemmi, 233 F. Supp. 2d 113, 116 (D. Mass. 2000) (quoting Sheppard, 384 U.S. at 363).

The Local Rule addresses the obligations of counsel at the various stages of litigation. The rule begins with the admonition that:

No lawyer or law firm shall release or authorize the release of information or opinion which a reasonable person would expect to be disseminated by means of public communication, in connection with pending or imminent criminal litigation with which he or the firm is associated, if there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.

During the pendency of a criminal case "until the commencement of trial," the rule provides, in relevant part, that:

[A] lawyer or law firm associated with the prosecution or defense shall not release or authorize the release of any extrajudicial statement, which a reasonable person would expect to be disseminated by means of public communication, relating to that matter and concerning... (6) [a]ny opinion as to the accused's guilt or innocence as to the merits of the case or the evidence in the case.

During the pendency of any criminal trial, the rule provides:

During the trial of any criminal matter, including the period of selection of the jury, no lawyer or law firm associated with the prosecution or defense shall give or authorize any extrajudicial statement or interview relating to the trial or the parties or issues in the trial which a reasonable person would expect to be disseminated by means of public communication, except that the lawyer or law firm may quote from or refer without comment to public records of the court in the case.

L. R. 83.2A.¹ Bulger contends that the absence of language in the rule explicitly allowing counsel to make extrajudicial statements during trial limited only by whether "there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice" renders this rule unconstitutional both under the First Amendment (by infringing his attorneys' right to free speech) and under the Sixth Amendment (by denying him effective assistance of counsel). The Court rejects both contentions.

B. Restrictions on Extrajudicial Statements

1. Addressing the First Amendment Challenge

As to a challenge on First Amendment grounds, a party may argue that a statute is facially overbroad or that the statute is unconstitutional as applied to the party. See, e.g., McCullen v. Coakley, 571 F.3d 167, 173 (1st Cir. 2009); McGuire v. Reilly, 386 F.3d 45, 57-61(1st Cir. 2004).² A challenged rule or law is facially overbroad if "it prohibits a substantial amount of protected speech" and it's "overbreadth [is] substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep." United States v. Williams, 553 U.S. 285, 292 (2008) (emphasis in original). By contrast, the "most common" as-applied challenge "is where the language of the statute is broad and could potentially cover many different types of fact situations," but the party attempts to "specify the law by freshly testing its constitutionality in one particular fact situation while refusing to adjudicate the constitutionality of the law in other fact situations." McGuire, 386 F.3d at 61. Here, although the Court notes the defendant's references to the statute's alleged overbreadth, D. 1051 at 1, 6-7, the Court understands the nature of the defendant's motion to be an as-applied challenge, in light of the defendant's specific references to ways in which the statute burdens his attorneys' First Amendment rights and his Sixth Amendment right to effective assistance of counsel in the context of this case.³ Id. at 6-8.

In the seminal case of Sheppard v. Maxwell, 384 U.S. at 355, the Supreme Court concluded that the media "bedlam that reigned at the courthouse during the trial," the failure of the court to supervise the environment in the courtroom, including its failure to alleviate the issue of trial publicity "by imposing control over the statements made to the news media by counsel, witnesses, and especially the Coroner and police officers" denied the defendant his Sixth Amendment right to a fair trial. Id. at 360. In so ruling, the Supreme Court instructed that courtsmust take steps to protect the court proceeding "from prejudicial outside interferences," id. at 363, including, as noted above, the extrajudicial statements by counsel and others involved in the proceedings.

Unlike the defendant in Sheppard, Bulger argues that he is being denied his Sixth Amendment right not because the extensive media coverage is infecting the court proceeding, but because his counsel's compliance with Local Rule 83.2A (apparently by making only limited extrajudicial statements) is denying him effective assistance of counsel under the Sixth Amendment and is denying his attorneys' First Amendment right to free speech.

For this position, Bulger relies in large measure on Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). D. 1051 at 3-6. Unlike this case concerning extrajudicial statements made by counsel during the course of a criminal trial, Gentile involved the disciplining of an attorney for holding a press conference only hours after his client was indicted on criminal charges. Id. at 1033. The Nevada Supreme Court affirmed a ruling of the Southern Nevada Disciplinary Board of the State Bar finding that the attorney had violated Nevada Supreme Court Rule 177, "a rule governing pretrial publicity," id., that was almost identical to the ABA Model Rule of Professional Conduct 3.6,⁴ barring attorneys from making extrajudicial statements if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Id. The Nevada rule contained both a section listing anumber of statements that ordinarily would result in material prejudice and a "safe harbor" provision listing a number of statements "that can be made without fear of discipline notwithstanding the other parts of the Rule." Id. at 1033. Since Rule 177 contained this "safe harbor" provision and that provision "appears to permit the speech in question," the Supreme Court reversed, finding the Rule, as applied by the State of Nevada, void for vagueness. Id. at 1048. Nevertheless, the Court concluded that the "substantial likelihood of material prejudice" test was consistent with the First Amendment because it furthers the compelling interest of "protect[ing] the integrity and fairness of a State's judicial system, and it imposes only narrow and necessary limitations on lawyers' speech." Id. at 1075; see Sheppard, 384 U.S. at 363.

Although Gentile recognizes that "[a]n attorney's duties do not begin inside the courtroom door" and that a "defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried," Gentile, 501 U.S. at 1043, the procedural posture of the criminal case at issue in Gentile was different than the case at bar, in that, as the Supreme Court recognized, Attorney Gentile's "primary motivation was the concern that, unless some of the weaknesses in the State's case were made public, a potential jury venire would be poisoned by repetition in the press of...