US v. Bingham, 89 CR 909.
| Citation | 769 F. Supp. 1039 |
| Decision Date | 13 August 1991 |
| Docket Number | No. 89 CR 909.,89 CR 909. |
| Parties | UNITED STATES of America, Plaintiff, v. Kenny BINGHAM, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
This multi-defendant criminal case is one of a series of criminal cases filed in this federal district court in the past few years1 as a result of a multi-jurisdictional investigation into alleged crimes by persons alleged to have been associated with the Chicago street gang the El Rukns.2 The indictment in this case alleges, among other criminal violations, RICO conspiracy, narcotics conspiracy, and numerous racketeering acts which include allegations of multiple murders, kidnapping, witness intimidation, obstruction of justice and narcotics distribution.
On August 9, 1991 the jury concluded its deliberations as to the thirteen alleged El Rukn members on trial. That trial began April 9, 1991. The trials of certain other defendants named in the indictment were severed and are scheduled to begin later this year. The charges against one person named as a defendant in the indictment have been dropped. Other defendants have pleaded guilty and still others remain fugitives.
This opinion deals not with the defendants nor with the indictment's allegations but instead with a collateral matter: the conduct of two of the defense counsel, Charles J. Aron and Deborah J. Gubin, on the eve of the jury selection in the now concluded trial. The court believes that conduct was improper and contemptuous. Consequently the court recommends the Executive Committee of this United States District Court examine the matter and decide whether to impose disciplinary sanctions pursuant to the appropriate procedures, see Local General Rule 3.50, et seq., and the United States Attorney of the Northern District for Illinois investigate and decide whether to file criminal contempt charges under 18 U.S.C. Section 401(3) against Mr. Aron and Ms. Gubin, attorneys of record in this case. See, e.g., United States v. Kozel, 908 F.2d 205 (7th Cir.1990).
For many years Local Criminal Rule 1.07 ("Rule 1.07") of this United States District Court has set forth the duties of counsel relating to extrajudicial statements about pending criminal cases. Rule 1.07 states in pertinent part that:
Additionally, at the March 4, 1991 status report in this case, with Mr. Aron and Ms. Gubin present, the court stated, among other things:
I don't anticipate that any of you experienced lawyers will make any comments to the media ... but I want all counsel to be aware that comments to the media should be kept to a minimum and avoided unless there is some pressing need to talk to the media.4
On March 29, 1991 the court granted the "Government's Motion for Anonymous Jury" without detailing fully its reasoning so as to minimize possible prejudice resulting from media commentary regarding that issue so close to the scheduled trial date.
On April 9, 1991, the first day of trial, the court met with counsel and the parties. The court's explanation of procedures to counsel and the court's ruling on newly filed motions consumed the day so the commencement of jury selection was deferred to the next day. Among other matters discussed on April 9, the court explained the procedure which would be followed the next morning in selecting the anonymous jury (April 9, 1991, Tr. 13-21). The court's explanation included a general description of what the venire would be told as to why the jury was anonymous (April 9, 1991, Tr. 16-17).
Also on April 9, 1991, the court addressed a defense motion for change of venue which had as its premise the prejudicial nature of the pretrial publicity surrounding the case. The court in denying that motion stated, "We'll just wait and see tomorrow whether this panel of jurors has been so exposed to news media and the articles listed in that motion that they won't be able to be fair and impartial" (April 9, 1991, Tr. 78-79).
When counsel left the courtroom for the day on April 9, 1991, the court certainly did not expect any of them to personally contribute to the case's media exposure that evening. There is no question that Ms. Gubin and Mr. Aron, by submitting themselves to be interviewed on television and making the statements they made for broadcast to the Chicagoland area, the same area from which the venire would be coming the following morning, created a "serious and imminent threat of interference with the fair administration of justice." (Rule 1.07.)
Exhibit "Videotape No. 1" contains the segments of Ms. Gubin's and Mr. Aron's videotaped interviews which were aired on news broadcasts on ABC's Chicago television station, WLS, Channel 7, and on CNN-Cable News Network that same evening, April 9, 1991.
The court has excluded for purposes of its recommendations the statements which Mr. Keith Bromery (the Channel 7 reporter who conducted the videotaped interviews) attributed to Ms. Gubin and Mr. Aron on Videotape No. 1 that:
(Videotape No. 1, WLS Channel 7 News, April 9, 1991 broadcast). Considering only the statements made directly by Mr. Aron and Ms. Gubin on the broadcasts actually aired, Mr. Aron's and Ms. Gubin's conduct was contemptuous. Comparing their actual videotaped statements with the recitation each gave in court the next day, their contemptuous conduct appears to be knowing and willful.
When the court inquired on the afternoon of April 10, 1991, less than 24 hours after Ms. Gubin and Mr. Aron made their televised statements, as to "Who spoke to the media?", Ms. Gubin responded:
MS. GUBIN: Your Honor, I was interviewed. They asked me about the concept of having so many attorneys being present on the case. They then started to ask me about the case, and I said, "There's a pretrial order concerning that," and that was the end. They were asking about what was it like to have so many defense lawyers and defendants at one trial. That was what the questions were concerning, when I was asked.
(April 10, 1991, 4:25 p.m., Tr. 3, lines 2-9.) The court was willing to accept Ms. Gubin's description of her media interview at that point. However, as subsequent events revealed, Ms. Gubin's response to the court's inquiry on April 10, 1991, was woefully lacking in material facts. As was later revealed, at the time of her interview which was both given and televised on the eve of jury selection, Ms. Gubin made inflammatory and denigrating remarks about the government's motive for seeking the selection of the anonymous jury.
MS. GUBIN: And we're horrified. We found that it is some way that the government is trying to scare the jury, and, like, be afraid of these individuals, that they are so scary that you can't even tell us your name.
(Videotape No. 1, CNN News, April 9, 1991 broadcast.)
Mr. Aron, on the afternoon of April 10, 1991, in response to the court's question, "Who spoke to the media?", offered some remarks after Ms. Gubin admitted she had been interviewed, stating:
MR. ARON: — as was I. I was standing with Ms. Gubin at the same time. We did not answer any questions about the case, and, as we were led to understand, you said once the trial started we were not to speak to the press, and the trial hadn't started.
(April 10, 1991, 4:25 p.m., Tr. 3, lines 10-14.)
Mr. Aron's statement, "We did not answer any questions about the case," was blatantly false. What Mr. Aron said at his April 9th videotaped television interview about the case and the anonymous jury to be selected the next morning, was:
MR. ARON: It tends to set an oppressive tone for the trial. The allegations are such of violence and intimidation, and when you have an anonymous jury, it reinforces, before they hear the first scrap of evidence that there could be intimidation.
(Videotape No. 1, WLS, Channel 7 News, April 9, 1991 broadcast.)
On May 7, 1991, after the videotape of the Aron-Gubin television interviews ("Videotape No. 1") had been subpoenaed and reviewed by Ms. Gubin and the court, neither Ms. Gubin nor Mr. Aron offered any justification for their conduct. Ms. Gubin, for the first time, however, admitted:
MS. GUBIN: Mr. Aron was asked a question about the anonymous jury. I was then asked another question about the anonymous jury because I had written a response to the government's request for it, and that's what apparently appears on CNN.
(May 7, 1991, Tr. 2812, lines 12-16.) Ms. Gubin proceeded to tell the court on May 7 that, when the television...
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Lafferty v. Jones
...(9th Cir. 1995) (applying clear and present danger to attorney speech outside of pending judicial proceeding); United States v. Bingham , 769 F. Supp. 1039, 1045 (N.D. Ill. 1991) (concluding that defense counsel's speech in televised interview on eve of jury selection constituted clear and ......
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