Morrissey, In re

• Decision Date: 11 February 1999
• Docket Number: No. 98-4168,98-4168
• Citation: 168 F.3d 134
• Parties: In re Joseph D. MORRISSEY, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 134

168 F.3d 134

In re Joseph D. MORRISSEY, Appellant.

No. 98-4168.

United States Court of Appeals Fourth Circuit.

Argued Oct. 28, 1998.

Decided Feb. 11, 1999.

ARGUED: David Bernard Hargett, Morrissey, Hershner & Jacobs, Richmond, Virginia, for Appellant. Andrew Gerald McBride, Assistant United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: J. Paul Gregorio, Morrissey, Hershner & Jacobs, Richmond, Virginia; Everette Garrett Allen, Jr., Hirschler, Fleischer, Weinberg, Cox & Allen, Richmond, Virginia, for Appellant. Helen F. Fahey, United States Attorney, David J. Novak, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Before ERVIN and HAMILTON, Circuit Judges, and MOON, United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge ERVIN wrote the opinion, in which Judge HAMILTON and Judge MOON joined.

OPINION

ERVIN, Circuit Judge:

Prior to a criminal trial in which he was a participating lawyer, Virginia attorney Joseph D. Morrissey ("Morrissey") made extrajudicial statements to the media regarding the case. Based on these actions, Morrissey was convicted of two counts of criminal contempt for violating Local Criminal Rule 57 ("Local Rule 57") of the United States District Court for the Eastern District of Virginia.

This case presents the question of whether Local Rule 57, which restricts a lawyer's extrajudicial comments about pending litigation, is facially unconstitutional because it violates an attorney's First Amendment right to free speech. The district court found that Local Rule 57 did not offend the First Amendment and denied Morrissey's motion to dismiss the contempt charges pending against him. Morrissey appeals. For the reasons set out below, we affirm.

I.

On January 16, 1997, Joel W. Harris ("Harris") was indicted on state drug distribution charges. Immediately following his indictment, Harris hired Morrissey, an experienced trial lawyer and former Commonwealth of Virginia prosecutor, as his attorney. Harris is a long-time Richmond political operative and former mayoral aide. His indictment attracted substantial media attention throughout the area.

Given Harris' political connections, the prosecution was dogged by accusations of partisanship on the part of the Commonwealth ¹ officials investigating the case. Eventually this political pressure impeded the investigation and federal authorities took over, moving the case to federal court.

As part of his trial preparation, Morrissey hired investigator James Bates ("Bates") to help him determine the identity of the witnesses who testified against Harris before the state grand jury. Bates identified John Buerkley ("Buerkley") as one of the grand jury witnesses and arranged an interview between Morrissey and Buerkley. During the videotaped interview, Buerkley recanted much of his state grand jury testimony. Neither party disputes the fact that they were aware Buerkley would be called as a government witness during trial.

Two days after this interview, Harris was indicted on federal drug distribution charges. The indictment alleged that Harris had exchanged drugs for sexual favors. These salacious details generated an even greater media frenzy in the geographic area from which jurors for the federal case would be drawn and in which key witnesses lived.

On the same day of Harris' indictment, the Assistant United States Attorney assigned to the case, James B. Comey ("Comey"), sent Morrissey a copy of the indictment and a copy of Local Rule 57. Comey felt the need to remind Morrissey of the applicability of Local Rule 57 because Morrissey had a reputation for aggressive use of the media in high-profile cases, and because comments similar to the ones that Morrissey had previously made during the state proceedings would be prohibited in federal court under this rule.

On the morning of February 11, 1997, John Honey ("Honey"), counsel for another potential witness against Harris, called Morrissey to caution him against approaching Honey's client directly for an interview. In that conversation, Morrissey indicated that he had scheduled a press conference for later that afternoon and planned to show the videotape of Buerkley recanting his grand jury testimony. Morrissey also told Bates and Buerkley's attorney Augustus Hydrick ("Hydrick") about the planned press conference. Both Hydrick and Bates discouraged Morrissey from holding the press conference for fear it would jeopardize their chances to convince any other witnesses to talk to them. Hydrick testified that Morrissey said he needed to do this in order to send a message to the other witnesses. Comey also found out about the press conference and faxed Morrissey a letter that again cited Local Rule 57 and urged him to cancel the press conference.

Morrissey went ahead with the press conference. He made some remarks, presented a press release, and played the videotape of Buerkley's recantation. The press conference received extensive media coverage throughout the Richmond area.

Later that afternoon, Morrissey responded to Comey's letter claiming that he had discussed Local Rule 57 with three former prosecutors and, based on their conversations, decided to hold the press conference. Later, during the show cause hearings, the three attorneys Morrissey spoke with all denied that they had advised him to go forward with the press conference.

In further support of his actions, Morrissey insisted that his statements to the media dealt only with the state case and the tainting of witnesses before the state grand jury. At that point, all state charges against Harris had been dismissed and only federal charges remained. According to Bates, Morrissey called the press conference to shake other witnesses, or as Morrissey put it, to induce others to come forward. Instead, these acts rattled several potential witnesses. One even threatened to recant his testimony just to avoid having to testify during trial.

The day after the press conference, the first show cause order was issued against Morrissey by District Court Judge James R. Spencer. The order charged him with willfully violating Local Rule 57 by holding a press conference to discuss information about and the credibility of a prospective government witness in a pending criminal proceeding. At Morrissey's February 19 show cause hearing, the district court judge reminded both parties of Local Rule 57 and promised harsh punishment for future violators.

On March 4, two weeks before the trial, Morrissey again made public statements about the Harris case in an interview with a Richmond newspaper reporter. Morrissey characterized the charges against Harris as vicious and vindictive and questioned whether they ever should have been filed. He went on to remark that if these charges had been filed when he was a prosecutor, they would have been laughed out of court. Based on these comments, a second show cause order was issued against him. Again, Morrissey was charged with willfully violating Local Rule 57 by making comments to a newspaper reporter regarding the merits of Harris' pending case.

Morrissey moved to dismiss the show cause orders, arguing that Local Rule 57 impermissibly infringed upon his right to free speech. On October 27, 1998, the district court denied the motion to dismiss on First Amendment grounds and conducted a bench trial on the charges.

At trial, the district court found that Morrissey knowingly violated Local Rule 57, specifically sections (C)(4) and (C)(6), which prohibit lawyers from making public statements regarding the identity, testimony, or credibility of prospective witnesses; or from giving any opinion as to the merits of a pending case. The court held that Morrissey's actions were reasonably likely to taint the jury pool, to make jury selection more difficult, and to interfere with prospective witnesses. Morrissey was found guilty of two violations of Local Rule 57 and sentenced to ninety days imprisonment and three years probation. Morrissey was also suspended from practicing law in the Eastern District of Virginia for two years. Morrissey appeals the district court's finding that Local Rule 57 does not violate the First Amendment.

II.

We review the district court's legal conclusion that Local Rule 57 is constitutional de novo. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1038, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) (encouraging the appellate court to review the entire record). In cases raising First Amendment challenges, "an appellate court has an obligation to 'make an independent examination of the whole record' in order to make sure that' the judgment does not constitute a forbidden intrusion on the field of free expression.' " Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-86, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)).

Morrissey argues that Local Rule 57 ² is facially unconstitutional because its restrictions on a lawyer's freedom of speech impermissibly infringe on Morrissey's First Amendment rights as interpreted by the Supreme Court in Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). Specifically, Morrissey argues that because the Court in Gentile held that the "substantial likelihood" standard was narrowly tailored enough to strike the proper balance between protecting the right to a fair trial and a lawyer's right to freedom of speech, the less protective "reasonable likelihood" standard in Local Rule 57 cannot also be sufficiently narrowly tailored to withstand a constitutional challenge.

We addressed the constitutionality of a rule very similar to Local Rule 57 in Hirschkop v. Snead, 594 F.2d 356 (1979), a pre-Gentile case. In Hirschkop, we found the "reasonable likelihood" standard to be sufficiently narrowly tailored so as not to violate...