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A.(3) fair trial and free press

1908 Canons of Professional Ethics (until 1969!) Canon 20 (p.492 Supp.), as to pending or anticipated litigation (a) newspaper publications generally condemned” (b) in “extreme circumstances” a public statement may be justifiable (c) but never anonymously

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A.(3) fair trial and free press

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  1. 1908 Canons of Professional Ethics (until 1969!) Canon 20 (p.492 Supp.), as to pending or anticipated litigation (a) newspaper publications generally condemned” (b) in “extreme circumstances” a public statement may be justifiable (c) but never anonymously 2. Canon 27: indirect advertising by publication about causes lawyer is involved in also no-no Historical background A.(3) fair trial and free press

  2. Historical background c’t’d Trial of Bruno Hauptmann for kidnapping and murder of Charles Lindbergh’s son, in 1930’s, involved unprecedented and clearly prejudicial publicity, with Hearst newspapers leading cry for conviction Kennedy assassination in 1963, and trial of Jack Ruby in Dallas for assassinating Lee Harvey Oswald, also provided example Sheppard v. Maxwell (US 1966) (“The Fugitive” movie and TV series) began development of due process standards

  3. Historical background c’t’d ABA CPR (1969) DR 7-107: regulatory approach exclusive lists of permissible statements at various stages of crim and civ cases MRPC 3.6 (1983): general standard for determining prohibited statements by any lawyer (“substantial likelihood of material prejudice”), with lists of presumptively impermissible and presumptively permissible statements

  4. Background c’t’d Gentile v. State Bar of Nevada (S.Ct. 1991), described in Bernabe-Riefkohl, p. 473ff • Is MRPC standard constitutional? • Is the formulation of 3.6(b) unconstitutionally vague? • 5-4 yes on each, w/ O’Connor as swing vote! • 1994 amendments to 3.6, to accommodate Gentile – especially Comments 4 and 5

  5. Problem pp. 470-1 • Any statements of prosecutor improper? • advice to policeman Powell? • statements to reporter 3 days prior to trial? • statement by policeman Powell to same reporter? • Any statements of defense counsel improper? • response to newspaper report? • follow-up interview after conviction?

  6. Problem p. 470 • What about the judge’s responses to the publicity?

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