In re Morrissey

• Decision Date: 24 February 1998
• Docket Number: No. CRIM. 3:97MS16.,CRIM. 3:97MS16.
• Citation: 996 F.Supp. 530
• Parties: In re Joseph D. MORRISSEY.
• Court: U.S. District Court — Eastern District of Virginia

996 F.Supp. 530

In re Joseph D. MORRISSEY.

No. CRIM. 3:97MS16.

United States District Court, E.D. Virginia, Richmond Division.

February 24, 1998.

Everett G. Allen, Robert L. Harris, Jr., Hirschler, Fleischer, Weinberg, Cox & Allen, Richmond, VA, for John D. Morrissey.

David Novak, Assistant United States Attorney, Office of the United States Attorney, Richmond, VA, for United States.

MEMORANDUM OPINION

PAYNE, District Judge.

The defendant, Joseph D. Morrissey, a member of the bar of Virginia and the bar of this Court, stands convicted of two counts of contempt of court which were instituted by show cause orders on February 12, 1997 and April 9, 1997, respectively. In each show cause order, Morrissey was directed to show cause why he should not be found guilty of criminal contempt for willfully, intentionally, and contumaciously violating Local Criminal Rule 57(C) of the United States District Court for the Eastern District of Virginia ("Local Rule 57(C)"). The charges were tried to the Court sitting without a jury. The findings of conviction were fully documented on the record on October 31, 1997¹ and are incorporated by reference herein.

Before trial, Morrissey moved to dismiss the show cause orders on the ground that Local Rule 57(C) violated the right of free speech secured to him by the First Amendment. For the reasons set forth below, the Court holds that Local Rule 57(C) does not offend the First Amendment and denies the motion to dismiss the contempt charges.

I. THE LOCAL RULE

In relevant part, Local Rule 57 provides:

(A) Potential or Imminent Criminal Litigation: In connection with pending or imminent criminal litigation with which a lawyer or a law firm is associated, it is the duty of that lawyer or firm not to release or authorize the release of information or opinion (1) if a reasonable person would expect such information or opinion to be further disseminated by any means of public communication, and (2) if there is a reasonable likelihood that such dissemination would interfere with a fair trial or otherwise prejudice the due administration of justice.

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(C) Pending Criminal Proceedings — Specific Topics: From the time of arrest, issuance of an arrest warrant, or the filing of a complaint, information, or indictment in any criminal matter until the termination of trial or disposition without trial, a lawyer or a 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 further disseminated by any means of public communication, if such statement concerns:

(1) The prior criminal record (including arrests, indictments, or other charges of crime), or the character or reputation of the accused, except that the lawyer or law firm may make a factual statement of the accused's name, age, residence, occupation, and family status and, if the accused has not been apprehended, a lawyer associated with the prosecution may release any information necessary to aid in his or her apprehension or to warn the public of any dangers such person may present;

(2) The existence or contents of any confession, admission, or statement given by the accused, or the refusal or failure of the accused to make any statement;

(3) The performance of any examinations or tests or the accused's refusal or failure to submit to an examination or test;

(4) The identity, testimony, or credibility of prospective witnesses, except that the lawyer or law firm may announce the identity of the victim if the announcement is not otherwise prohibited by law;

(5) The possibility of a plea of guilty to the offense charged or a lesser offense;

(6) Any opinion as to the accused's guilt or innocence or as to the merits of the case or the evidence in the case.

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(D) Pending Criminal Proceedings — General: During a jury 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, if there is a reasonable likelihood that such dissemination will interfere with a fair trial, except that the lawyer or law firm may quote from or refer without comment to public records of the Court in the case.

II. STATEMENT OF FACTS

The charges in this case have historical antecedents in the state court and, therefore, it is necessary briefly to sketch the background of the state court proceedings which began on January 16, 1997 when Joel W. Harris was indicted by a state grand jury on drug distribution charges. Morrissey almost immediately undertook the defense of Harris in the state case.

Harris was active in state and local politics. Consequently, his indictment for distributing controlled substances spawned substantial attention from the print and broadcast media. It also generated a rather shameless display of lawyer-generated publicity. It is safe to say that the constant flow of media attention created a circus-like atmosphere.

After the state proceedings became heavily laden with well-publicized accusations and counter-charges respecting the political motivations of the participants and of various local law enforcement officials, federal authorities took over the investigation. Thus, by January 21, 1997, a federal investigation of Harris' activities was well-underway and, on that date, Morrissey and Harris met with the lead federal prosecutor, James B. Comey, for a proffer session in which the somewhat broadened range of charges under federal investigation were discussed. Meanwhile, Morrissey continued to investigate and prepare a defense to the still pending state charges.

As part of that preparation, Morrissey, Harris and Morrissey's investigator, James Bates, sought to ascertain the identity of witnesses against Harris by reviewing the state court indictment and the allegations in an affidavit in support of a state search warrant. One of the witnesses identified by this process was John Buerkley, who had testified against Harris before the state grand jury. Bates arranged for Morrissey to interview Buerkley on February 2, 1997. During that interview, which was consensually recorded on videotape, Buerkley recanted some of the testimony he had given to the state grand jury.

Two days later, February 4, Harris was indicted by a federal grand jury on drug distribution charges allegedly involving the exchange of drugs by Harris in return for sexual favors, heterosexual and homosexual. Needless to say, the charges were of great interest to the already rather sensational reporting which now could add a salacious overlay to the coverage of the drug distribution charges against a political figure said to possess significant behind-the-scenes influence in local and state political circles. Indeed, by then even the most poorly informed of the Richmond area populace could discern that any story about the Harris case would attract the attention of a ravenous media which, quite predictably, would thrust the information into broadcast sound bites and newspaper headlines. Morrissey, an experienced criminal trial lawyer, knew full well that any news about his client's case would receive substantial broadcast and print media exposure in the geographic area from which juries for this Court are drawn and in which witnesses in the case resided.

Indeed, because Morrissey had so actively communicated to the press his opinions and theories about the charges against Harris in the state proceedings, Comey provided Morrissey with a copy of Local Rule 57(C) when he delivered the federal indictment to Morrissey on February 4. Comey also reminded Morrissey that the Local Rule prohibited the kind of communication with the press in which Morrissey had engaged in the state case (GX 12).

The next day, February 5, found Harris before a United States Magistrate Judge of this Court for a detention hearing. During the course of that proceeding, Morrissey expressed awareness that Buerkley was a potential witness in the federal case against him. Also, on February 5, Augustus S. Hydrick, Jr., counsel for Buerkley, confirmed to Morrissey that Buerkley would be a witness in the federal case.

On February 7, the state prosecutor filed a motion to nolle prosse all state charges against Harris. On February 10, the motion was granted. Nonetheless, Morrissey attempted to schedule hearings in state court on a motion seeking return of some of Harris' seized property. However, the state judge declined to set a hearing on that motion because all state proceedings against Harris had been terminated, thereby depriving the state court of jurisdiction with respect to Harris and the motion to recover the seized property.

On February 10, Comey informed Hydrick that he intended to call Buerkley as a witness in the federal case, notwithstanding the recent recantation by Buerkley of his state grand jury testimony in the videotaped interview with Morrissey. Also, on February 10, Bates attempted to communicate with another witness, Teri Czelusniak, who had been identified by Morrissey, Bates and Harris in their review of the state court indictment and the search warrant affidavit. Czelusniak, however, was disturbed by the efforts of Bates to arrange an interview with Morrissey and informed her counsel, John K. Honey, Jr.

On the morning of February 11, Honey informed Morrissey of Czelusniak's concerns and directed Morrissey to make certain that all communications on this topic were with Honey, not Czelusniak. During that conversation, Morrissey also told Honey that Buerkley would be a witness in the pending proceedings. Although Morrissey did not mention the federal proceedings by name, the federal case was the only one then pending.

During the conversation with Honey...