Breiner v. Takao

• Decision Date: 03 September 1992
• Docket Number: No. 16152,16152
• Citation: 835 P.2d 637,73 Haw. 499
• Parties: , 20 Media L. Rep. 1762 Myles S. BREINER, Petitioner, v. Honorable Frank T. TAKAO, Judge of the Circuit Court of the First Circuit, State of Hawaii and State of Hawaii, Respondents.
• Court: Hawaii Supreme Court

Page 637

835 P.2d 637

73 Haw. 499, 20 Media L. Rep. 1762

Myles S. BREINER, Petitioner, v. Honorable Frank T. TAKAO, Judge of the Circuit Court of the First Circuit, State of Hawaii and State of Hawaii, Respondents.

No. 16152.

Supreme Court of Hawai'i.

Sept. 3, 1992.

Syllabus by the Court

1. Mandamus is an extraordinary remedy which will not issue unless the petitioner demonstrates (1) a clear and indisputable right to relief and (2) a lack of other means to adequately redress the alleged wrong or obtain the requested action.

2. Mandamus is the appropriate remedy where the order of the court imposes a restraint on free speech rights unrelated to the merits of the criminal case and thus could not be raised on appeal.

3. A trial court possesses both the power and the responsibility to take affirmative measures to insure a defendant's right to a fair trial and to prevent or reduce prejudicial pretrial publicity.

4. A trial court seeking to reduce prejudicial pretrial publicity by prohibiting trial participants from communicating with the media must give due consideration to the defendant's right to a fair and impartial trial and the individual's right to free speech.

5. Attorneys may be subject to prior restraint by a trial court upon a demonstration that the activity restrained poses a serious and imminent threat to a defendant's right to a fair trial, the order restraining the attorney is narrowly drawn, and that less restrictive alternatives are not available to prevent the threatened harm.

Carl M. Varady, American Civil Liberties Union of Hawaii Foundation, Honolulu, for petitioner Myles S. Breiner.

Alexa D.M. Fujise, Deputy Pros. Atty., City and County of Honolulu, Honolulu, for respondent State of Hawaii.

Anthony K. Bartholomew, Honolulu, for respondent Frank T. Takao.

Before LUM, C.J., WAKATSUKI, MOON and LEVINSON, and WALTER M. HEEN, Intermediate Court of Appeals Associate Judge, in place of KLEIN, J., recused.

PER CURIAM.

In this original proceeding, Petitioner Myles Breiner (Petitioner) seeks the issuance of a writ of prohibition and/or mandamus vacating the trial court's pre-trial order entered in State v. Greyson, FC-Cr. No. 62. The pre-trial order grants the State's oral motion to prohibit counsel from communicating with members of the news media on matters related to this case. Petitioner contends the order is overly broad and constitutes a prior restraint of his right to free speech unjustified by the record. Upon reviewing the record, we conclude that the restrictive order was impermissible, and accordingly, the petition is granted. ¹

I.

The underlying criminal proceeding in this case involves a charge of murder, Hawaii Revised Statutes (HRS) § 707-701 (1985), ² against Malcolm Greyson (Greyson) who is accused of causing the death of his infant son in 1983. Although Greyson is acting as his own defense counsel, Petitioner was appointed by the court to act as advisory counsel to Greyson.

On May 7, 1992, immediately prior to trial, the deputy prosecuting attorney in this case orally moved the court to enforce attorney disciplinary rules regarding publicity after seeing Petitioner talking to a news reporter from a local television station. Petitioner explained his conversation with the news reporter was completely unrelated to the case. Petitioner further explained that he knew the disciplinary rules and reviewed them with Greyson. The following exchange took place:

Petitioner: Your Honor, this is an unusual case. We have a pro se defendant representing himself in a murder trial, a fourth retrial. It's unusual and the media is interested. The media has been contacted--has contacted myself and asked me questions. So far I have not responded. I just simply told them the trial is going ahead, come and see the trial.

Now if questions are posed of me by the media, I feel I have a right and an obligation to say something and say something in a professional manner that's not going to purely (sic) reflect upon Mr. Takata's case, my case, or the dignity and honor of the court. But to gag the defense, there's no reason for it whatever.

Prosecutor: Your Honor, media can be present in the courtroom. They can file an application for extended coverage and they can cover the trial that way. There should be no communication from the attorneys or Mr. Greyson to the media, and I ask for a gag order on all parties.

Transcript of May 7, 1992 at 4-5.

After considering the arguments by both parties, the court orally made the following ruling:

In order to ensure a fair trial in this case, the jury should not read any media accounts of this trial. And no information should be--no interview should be granted by any counsel regarding this trial. I will, therefore, issue a gag order and no communication should be made to any reporters or media personnel regarding any aspect of this trial.

Transcript of May 7, 1992 at 8.

Two weeks later, the trial court issued a written order titled "Order Granting Oral Motion to Enforce Code of Professional Responsibility Regarding Trial Publicity." The order specifically provides as follows:

Myles Breiner, Defendant Pro Se Malcolm Greyson, and Deputy Prosecutor Kevin Takata are prohibited from making any extrajudicial statement to any member of the media relating to the trial, parties, or issues in the trial or other matters that are reasonably likely to interfere with a fair trial, during jury selection and the trial in this case.

On May 22, 1992, Petitioner filed the instant petition seeking an order from this court prohibiting the court from enforcing its order of May 7, 1992.

II.

This court has consistently held that a writ of mandamus and/or prohibition is an extraordinary remedy which will not issue unless the petitioner demonstrates (1) a clear and indisputable right to relief and (2) a lack of other means to adequately redress the wrong or obtain the requested action. State v. Oshiro, 69 Haw. 438, 441, 746 P.2d 568, 570 (1987) (citing State ex rel. Marsland v. Shintaku, 64 Haw. 307, 640 P.2d 289 (1982) (per curiam)). Such writs, however, are not meant to supersede the legal discretionary authority of the trial courts, nor are they to serve as legal remedies in lieu of normal appellate procedure. State ex rel. Marsland v. Town, 66 Haw. 516, 668 P.2d 25 (1983). In this case, mandamus is the appropriate remedy where the order of the court imposed a restraint on free speech rights unrelated to the merits of the criminal trial and thus could not be raised on appeal.

III.

Petitioner argues that the trial court's order is overly broad and constitutes a prior restraint of expression unjustified by the record. ³ Despite the language used at the hearing on the State's motion, the State insists the court order is not a "gag order" and does not foreclose any communication which is otherwise appropriate within the terms of the Code of Professional Responsibility (Code). ⁴ The State explains it did not intend to seek an order broader than the restrictions contained in the Code except to extend the rules to Greyson. ⁵ Thus, the State contends there is no reason for this court to vacate the order.

IV.

We note, at the outset, that the court's order in no way restricted the news media from covering the trial involved in this case. Thus, we must consider only the restraint on the trial participants.

It is well settled that a trial court possesses both the power and the responsibility to take affirmative measures to insure a defendant's sixth amendment right to a fair trial is not compromised and at the least to prevent or reduce prejudicial pretrial publicity. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). As previously noted, the court order in this case does not involve a prior restraint on the news media. Instead, it imposes restrictions upon extrajudicial statements made by the trial participants in this case. This distinction is important given the fact that attorneys, as officers of the court, have a legal and ethical responsibility to safeguard the defendant's right to a fair trial. See Levine v. United States Dist. Court, 764 F.2d 590 (9th Cir.1985), cert. denied, 476 U.S. 1158, 106 S.Ct. 2276, 90 L.Ed.2d 719 (1986); National Broadcasting Co. v. Cooperman, 116 A.D.2d 287, 501 N.Y.S.2d 405 (1986). As Justice Brennan explained in his concurring opinion in Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976):

As officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice. It is very doubtful that the court would not have the power to control release of information by these individuals in appropriate cases and to impose suitable limitations whose transgression could result in disciplinary proceedings.

Id. at 601 n. 27, 96 S.Ct. at 2823 n. 27 (Brennan, J., concurring) (citation omitted); see also Sheppard v. Maxwell, 384 U.S. at 363, 86 S.Ct. at 1522 ("[c]ollaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures").

A trial court seeking to reduce prejudicial pretrial publicity by prohibiting trial participants from communicating with the media must give due consideration to both the defendant's right to a fair and impartial trial and the individual's right to free speech. While attorneys have a professional responsibility to protect the fairness and integrity of the judicial process and courts may, in specific circumstances, regulate attorneys' conduct, this does not mean that lawyers surrender their constitutional rights at the courthouse door. Levine v. United States Dist. Court, 764 F.2d at 595.

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