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Ethics in 2020
Federal Criminal Law Update
August 18, 2020
Presented by:
CYNTHIA EVA HUJAR ORR
GOLDSTEIN & ORR
310 S. ST. MARY’S STREET
29TH FLOOR TOWER LIFE BUILDING
SAN ANTONIO, TEXAS 78205
(210) 226–1463
whitecollarlaw@gmail.com
Advisory: Readers should exercise discretion when reading the portion
of this paper concerning our clients’ perception of justice since it cites
artistic rap lyrics containing explicit language.
2
Table of Contents
I. Public Discourse ..................................................................................................4
A. “If It Bleeds, It Leads” ....................................................................................... 4
B. Duty to Maintain Technological Competency ............................................. 5
C. Public Comment to Correct Publicity Prejudicing an Adjudicative
Proceeding ............................................................................................................... 5
D. The Supreme Court Recognizes Our Duty to Speak.................................. 9
E. Vouching for Clients is a Dangerous Game ............................................... 11
F. Not Being Blinded by the Glare of Your Rolex.......................................... 12
G. Commenting on Cases That Aren’t Yours .................................................. 13
H. Are Lawyer’s Always Lawyers? .................................................................... 13
I. Press Releases by the Government ............................................................... 14
J. Judicial Gag Orders—When Should They Be Issued?.............................. 17
II. Implicit and Other Biases ...............................................................................20
III. Conflicts of Interest ........................................................................................21
IV. Attorney-Client Privilege ................................................................................23
V. Federal Prosecutors’ Duty to Disclose Relevant Favorable Evidence
Under the Texas Rules ..........................................................................................24
VI. Conclusion ........................................................................................................26
3is broadcast over Twitter,
I. Public Discourse Facebook, Snapchat, TikTok,
Instagram, YouTube, WeChat
A. “If It Bleeds, It Leads” and even instant messaging apps,
such as WhatsApp and Kik. The
The media is not what it pervasive dissemination of
once was. Gone are the days information provides even the
when neighbors and families least technologically advanced
gathered around a tv screen at citizens real time pushed updates
home, the local diner, or bar to regarding the political, social,
hear breaking news or catch up and cultural climate. These
on recent developments. 1 The advances in technology and
American public receives this online media over the years have
information on multiple made it easier for the public to be
platforms instantaneously and informed and voice their opinions
daily, whether or not they intend regarding crucial issues that
to. From the Varsity Blues affect our daily lives. Social
scandal2 to Michael Cohen’s media has been recognized by the
testimony before Congress on United States Supreme Court as
February 27, 2019 3, such content the new public square. 4 It has
1
Richard A. Marini, Cohen Testimony (Apr. 4, 2019, 3:33 AM),
on San Antonian’s Minds—and https://abcnews.go.com/US/breaking-
Computers, TVs, Phones, SAN ANTONIO accusations-parents-varsity-blues-
EXPRESS-NEWS (last updated Feb. 27, cheating-scandal/story?id=62121159.
2019, 6:08 PM), 3 Michael Cohen, President Trump’s
https://www.expressnews.com/entertai former lawyer openly testified about
nment/movies-tv/article/Cohen- attorney-client privileged information
testimony-on-San-Antonian-s-minds- and client confidences before Congress.
and-13650437.php. Michael D. Cohen Congressional
Testimony, N.Y. TIMES (Mar. 5, 2019),
2 Actresses Lori Loughlin and Felicity https://www.nytimes.com/interactive/2
Huffman were among others in 019/02/27/us/politics/michael-cohen-
Hollywood charged for alleged testimony.html.
involvement in a massive college
entrance scandal. Aaron Katersky & 4Packingham v. North Carolina, 582
Bill Hutchinson, Actresses Felicity U.S. ___ (2017).“With one broad
Huffman and Lori Loughlin Face stroke, North Carolina bars access to
what for many are the principal
Judge in Massive ‘Varsity Blues’ sources for knowing current events,
College Entrance Scam, ABC NEWS checking ads for employment,
4also allowed almost any technology. While the most
influencer to try a case in the obvious application of this rule in
court of public opinion. With the the criminal context will involve
advent of Zoom, now civil district competence in computer and cell
courts in Bexar County were phone technology with regard to
invaded with porn by hyjackers. search warrants, subpoenas and
And a criminal speeding ticket motions to suppress; it also
jury trial took place in JP Court, includes competence in public
but not without significant discourse and the extent that
problems. See Criminal Court client’s cases are publicized on
Reopening and Public Health in social media.
the COVID 19 Era.
C. Public Comment to
B. Duty to Maintain Correct Publicity
Technological Competency Prejudicing an Adjudicative
Proceeding
The Rules of Ethics require Counsel must be aware of
counsel to maintain technological the extent to which a client’s case
competency. Whether it concerns is covered on social media sites
state and federal electronic filing, that disperse immediate and
efficient word processing and sometimes harmful information.
document editing tools, the There is no longer a big or small
security of cloud data, virtual case. Every case has the
meeting platforms, or the niceties potential to “break the internet;”
of cellular communication; or receive such widespread
counsel must have adequate coverage that your client may be
technological knowledge to convicted before even faced with
competently represent clients. formal charges. Entire shows are
Rule 1.01 of the Texas dedicated to hour long
Disciplinary Rules of Professional documentaries on pending
Conduct requires counsel to be cases—20/20, Dateline, and
competent. Commentary Discovery ID are only a few
expressly mentions this includes examples. Innumerable podcasts
competence in relevant cover every detail of pending
speaking and listening in the modern media altogether thus prevents users
public square, and otherwise exploring from engaging in the legitimate
the vast realms of human thought and exercise of First Amendment rights.
knowledge. Foreclosing access to social
5cases as well. This type of media The phenomenon of
can “go viral”, publicizing your pervasive electronic
client’s case world-wide; 24/7. In dissemination of case information
this environment, counsel must raises important questions
consider whether the silent and regarding attorneys’ ethical
stoic response, that once assured duties while advocating for their
that a story would not have clients in the public realm. For
“legs,”5 is any longer effective. instance, what actions may an
Allowing such pervasive media attorney take when attempting to
coverage to go unanswered may, correct false information
in fact, be ineffective. A lawyer disseminated about their client?
may not make a public statement Do public pre-trial statements by
that will have a substantial the prosecution violate the Fair
likelihood of materially Trial vs. Free Discourse
prejudicing an adjudicative dichotomy? Is it appropriate for
proceeding. The goal of this rule attorneys to publicly vouch for
is to prevent a lawyer from their clients? Do we, as attorneys,
influencing a trial’s outcome or have a duty to wage a public
prejudicing the jury venire. 6 A defense in addition to the one we
lawyer cannot make a present in the courtroom? Are
extrajudicial statement that a attorneys allowed to provide
reasonable person would expect opinions regarding cases in which
to be dispersed by means of public they are not counsel? Should they
communication. But this is be allowed? When should judges
counter balanced by the fact the issue gag orders in this
rule recognizes that a lawyer can environment? When does a client
make a statement for public effectuate a waiver of attorney-
dissemination of it is made to client privilege in a statement to
counter the “unfair prejudicial the media? These are just some
effect of another public of the ethical issues counsel faces
statement.” 7 in the electronic media rich
environment. We will also cover
the broader Texas attorney-client
5 A reference to the length of time a v. State Bar of Nevada, 501 U.S. 1030
story remains in the media. (1991).
6
Rule 3.07 of the Texas Disciplinary 7
Rule 3.07 of the Texas Disciplinary
Rules of Professional Conduct. Gentile Rules of Professional Conduct,
comment 3.
6privilege, the ethical rules that respect to public comments by
govern conduct of lawyers in attorneys involved in criminal
Texas federal courts, conflicts of proceedings, ABA Rule 3.6 is even
interest both in multiple more instructive:
representation and regarding
professional self-interests, and “A lawyer who is
the disclosure required of federal participating or has
prosecutors in Texas under the participated in the
ethical rules. In addition, we will investigation or litigation of
consider whether how we treat a matter shall not make an
counsel who are women, extrajudicial statement
minorities, or who are differently that the lawyer knows or
abled or oriented is governed by reasonably should know
the Texas Rules. This will be disseminated by
presentation constitutes one means of public
attorney’s view on these crucial communication and will
issues, and how we as criminal have a substantial
defense attorneys, can best likelihood of materially
advocate for our clients’ interests prejudicing an adjudicative
while protecting our own proceeding in the matter.” 9
professional integrity.
The rule identifies types of public
American Bar Association communication that do not
Model Rule (Model Rule) 1.3 constitute a violation of this rule:
serves as a starting point in the
analysis: “A lawyer shall act with “Notwithstanding
reasonable diligence and paragraph (a), a lawyer may
promptness in representing a state: (1) the claim, offense
client.”8 Sounds easy enough to or defense involved and,
follow—provide zealous except when prohibited by
representation, and don’t slack law, the identity of the
off. But just how far this persons involved; (2)
underlying rule allows attorneys information contained in
to go in their representation has public record; (3) that an
been highly contested. With investigation of a matter is
8 MODEL RULE OF PROF’L CONDUCT R. 9 MODEL RULE OF PROF’L CONDUCT R.
1.3 (2018). 3.6(a)(2018)[emphasis added].
7in progress; (4) the substantial undue
scheduling or result of any prejudicial effect of recent
step in litigation; (5) a publicity not initiated by
request for assistance in the lawyer or the lawyer’s
obtaining evidence…; [and] client.”12
(6) a warning of danger
concerning the behavior of a This exception opens the door to
person involved….” 10 any response necessary to
neutralize the prejudice. In
Additional permitted disclosures almost every federal case, the
in criminal cases are: U.S. Attorney’s Office or
Department of Justice will issue
“(i) the identity, residence, a press release. These press
occupation and family releases seldom are limited in
status of the accused; (ii) if scope to the exceptions for public
the accused has not been comments. Coming from such an
apprehended, information authoritative source, they appear
necessary to aid in to be a violation of the rule
apprehension of that prohibiting a statement in the
person; (iii) the fact, time media that has a substantial
and place of arrest; and (iv) likelihood of prejudicing an
the identity of investigating adjudicatory proceeding. They
and arresting officers or are guaranteed to lead the news.
agencies and the length of
the investigation.”11 Recognizing that public opinion is
often shaped by media heads and
Finally, 3.6 allows a lawyer to outlets that persistently analyze
make statements that will the actions of public officials,
protect the client from prejudice attorneys, and the like, it is
caused by publicity: imperative to ensure prosecuting
attorneys don’t “cross the line”
“a reasonable lawyer would when issuing public commentary.
believe is required to Counsel should correct any
protect a client from misimpression these press
10 MODEL RULE OF PROF’L CONDUCT R. 12 MODEL RULE OF PROF’L CONDUCT R.
3.6(b)(2018). 3.6(c)(2018).
11 MODEL RULE OF PROF’L CONDUCT R.
3.6(b)(7) (2018).
8releases foster and attempt to
cure the prejudice they cause.13 “When this case goes to
Thus, in the current trial, and as it develops,
environment, counsel may need you’re going to see that the
to issue a statement to level the evidence will prove not only
playing field after a prosecution that [Defendant] is an
press release. It is notable that in innocent person and had
Special Counsel Robert Mueller’s nothing to do with any of
tenure as Independent counsel he the charges that are being
issued factual press releases in leveled against him, but
his indictment, conviction, or that the person that was in
guilty pleas of thirty-four people the most direct position to
and three.14 have stolen the drugs and
money, the American
D. The Supreme Court Express Travelers’ checks,
Recognizes Our Duty to is Detective Steve Scholl….
Speak There is far more evidence
that will establish that
In Gentile v. State Bar of Detective Scholl [was
Nevada, the Supreme Court held responsible] than any other
that attorneys are allowed to living human being.” 16
comment on a case in order to
correct false.15 Dominic Gentile, Justice Kennedy, writing
a Nevada attorney, held a press for the majority, first
conference after his client was characterized Gentile’s speech as
indicted. He alleged that a classic political speech—speech
member of the Las Vegas that lies at the very heart of the
Metropolitan Police Department First Amendment. 17 He next
was responsible for the offenses, noted that attorneys’
not his client. responsibilities do not begin at
13 Ira H. Raphaelson, Convictions from Robert Mueller’s
“Press….Press…Pull”: When “No Investigation, Time, March 24, 2019,
Comment” No Longer Serves the by Ryan Teague Beckwith.
Client’s Interests, 33RD ANNUAL 15 501 U.S. 1030 (1991).
NATIONAL INSTITUTE ON WHITE COLLAR 16 Id. at 1059.
CRIME (2019). 17 Id. at 1034.
14
Muller Investigation: All of the
Indictments, Guilty Pleas, and
9court, and suggests that our authorized to make public
duties extend far beyond that, statements about the nature of a
both in time and location: criminal case, it should be
attorneys who are trained, well-
“[Attorneys] cannot ignore informed, credible, and qualified
the practical implications of to speak about the intricacies of
a legal proceeding for the the case. 18 This analysis is right
client. Just as an attorney in line with the American Bar
may recommend a plea Association’s Criminal Justice
bargain or civil settlement Standards for Fair Trial and
to avoid the adverse Public Discourse which espouse
consequences of a possible the view that an open and
loss after trial, so too an transparent criminal justice
attorney may take system is crucial to democracy,
reasonable steps to defend a and that attorneys and other
client’s reputation and officials involved in the criminal
reduce the adverse justice system must ensure
consequences of indictment, proceedings are conducted
especially in the face of a fairly. 19
prosecution deemed unjust
or commenced with At the very center of the
improper motives. A Gentile opinion is the notion that
defense attorney may public comment is often times
pursue lawful strategies to necessary to safeguarding our
obtain dismissal of an client’s rights and mitigating use
indictment or reduction of of the courts for improper
charges, including an purposes.20 Dominic Gentile felt
attempt to demonstrate in his commentary was imperative,
the court of public opinion due to concerns that repetitive
that the client does not pre-trial publicity from the state
deserve to be tried.” and law enforcement would affect
potential jurors. In other words,
Justice Kennedy further explains “he sought only to counter
that if anybody should be
18
Id. at 1056. 20 Id. at 1058.
19 ABA CRIM. JUST. STAND. ON FAIR
TRIAL AND PUBLIC DISCOURSE
8.1.1(a)(b)(i)-(ii)(2016).
10publicity already deemed same position as the
prejudicial.” 21 attorney referred to in the
Gentile case—an insider
Gentile is one instance privy to facts, and a public
where an attorney’s press status removing him from
statements properly protected his the leagues of common
client’s interests. observers or uninvolved
attorneys. He was not
What if a former lawyer merely a lawyer with a
discusses his client’s case. In passing interest in the
United States v. Scarfo, the Third case.”24
Circuit considered whether a
heightened reason for restricting Applying the Gentile
attorney speech needed to be framework in this case, the
shown when the attorney court determined that the
involved no longer represented former attorney’s statements
the criminal defendant who was to the press did not jeopardize
the subject of the speech. 22 The the fairness of the trial or
Court determined that the fact materially prejudice or impair
that the attorney no longer the court’s judicial power. 25
represented Scarfo did not Where the Court had issued a
prevent them from applying the gag order in the Scarfo case,
Supreme Court’s reasoning in the Court of Appeals found it
Gentile.23 The attorney in was improper.
question was not just an ordinary
citizen. E. Vouching for Clients is a
Dangerous Game
“[He] was the beneficiary of
extensive client Herman Cain was a 2012
communication, and his Republican presidential
statements were received candidate who faced multiple
by the press as especially allegations of sexual assault.
authoritative…. [the After a fourth woman made
attorney here] was, for all allegations against him, Cain and
intents and purposes, in the
21 Id. at 1042. 24
Scarfo, 263 F.3d at 93 (2001).
22 263 F.3d 80, 93 (3d Cir. 2001). 25 Scarfo, 263 F.3d at 95 (2001).
23 Scarfo, 263 F.3d at 92-93 (2001).
11his attorney, Lin Wood, decided should limit their comments only
to attempt to put the accusations to remarks based on their own
to rest. 26 Multiple news outlets indisputable observations, rather
weighed in on the veracity of his than information from a client or
counterclaims, one source going information that could change in
as far as suggesting that Cain the future.
would “go down in flames because
he failed to learn the first rule of F. Not Being Blinded by the
political scandal: Don’t make Glare of Your Rolex
statements that can be
falsified.” 27
Another issue attorneys
who choose to speak publicly
Vouching essentially must be cautious regarding is
involves, to some degree, their motive or perceived motive
revelation of client confidences. for public exposure. On one end
As demonstrated by the Herman of the spectrum is damage
Cain case, vouching for a client control—shielding your client’s
can backfire, especially when freedom and reputation from
information given to the press harmful information media
subsequently turns out to be attention that carries the
false. Attorneys who have to potential of infecting the jury
retract their statements not only pool.28 On the other end of the
risk losing credibility, but they spectrum, there is the desire to be
may also make their clients look in the limelight at all costs.
like liars. This is so even if the
client didn’t ask their attorney to Michael Avenatti, the
make the public statement in the former attorney representing
first place. Attorneys who do Stormy Daniels, has been a
decide to make public statements
26
A Fourth Woman Accuses Herman politics/2011/11/herman-cain-sexual-
Cain of Sexual Harassment, ATLANTIC harassment-press-conference-his-
(Nov. 07, 2011), falsifiable-statements-will-destroy-
https://www.theatlantic.com/politics/ar him.html.
chive/2011/11/a-fourth-woman- 28 See Skilling v. United States, 561
accuses-herman-cain-of-sexual- U.S. 358 (2010) [Defendant alleging
harassment/248050/. pretrial publicity and prejudice
27 William Saletan, Cain of Denial, prevented him from a fair trial had to
SLATE (Nov. 09, 2011, 8:51 AM), show a presumption of juror prejudice
https://slate.com/news-and- or that actual bias so infected the jury].
12frequent figure in the national to hold entities who engage in
media in high-profile cases. He is misconduct accountable, or is it
known for making public claims really about one’s own public
that he has damaging image and recognition?
information about public figures,
which garners mass media G. Commenting on Cases
attention. 29 More recently, That Aren’t Yours
Avenatti was indicted for
extortion arising out of a meeting The ABA in its Standards
with attorneys for Nike in which on Fair Trial and Public
he allegedly threatened to release Discourse recognized that
harmful information about the lawyers will comment on others’
brand, unless he was paid cases as news commentators.
millions of dollars. 30 These They advise that, in this
allegations among others have circumstance, counsel should be
put Avenatti in the public eye, competent to provide information
but at what cost? Were his about the law, legal procedure,
entreaties to Nike settlement and information that enhances
negotiations? Did every press the public understanding of
conference about President criminal matters. However, the
Trump advance Ms. Daniel’s rules caution that counsel should
case? not express opinions on the
Immediately talking to the performance of counsel or predict
cameras and social media each outcomes.31
time could detract from one’s
credibility as an attorney. Even H. Are Lawyer’s Always
assuming revelations of public Lawyers?
interest have some credence, one
might question counsel’s motive We have seen Rudy Giuliani
to appear before the public. Is it comment on news and talk shows
29
Brennan Weiss et al., Meet Michael ael-avenatti-bio-lawyer-representing-
Avenatti, the Former Professional stormy-daniels-2018-3.
Sports Car Driver Who Represented 30 Criminal Complaint at 3, United
Stormy Daniels and Was Just Charged States v. Avenatti, No. 19MAG2927
for Attempting to Extort More Than (S.D. N.Y. March 24, 2019).
$20 Million from Nike, BUS. INSIDER 31
Standard 8-2.4, Criminal Justice
(Mar. 25, 2019, 4:22 PM), Standards on Fair Trial, Public Discourse.
https://www.businessinsider.com/mich
13about President Trump almost The preamble to the ABA
every day in a manner that Model Rules suggest that the
appears more intended to appeal rules of ethics and professional
to the President’s base from the conduct still apply. 33
standpoint of an election I. Press Releases by the
campaign than aimed at a Government
defense against accusations of
criminal wrongdoing. When a Prosecutors often make pre-
person is a lawyer, is the trial press statements regarding
individual always bound by the investigations. An interesting
rules of ethics? Or can a lawyer question is to what degree do
wear another hat and perform the these statements violate Model
functions of a political adviser or Rule 3.6 and its state
a legislator without being bound counterpart, Rule 3.06 of the
by attorney rules of conduct. Texas Disciplinary Rules of
Congressman Matthew Gaetz Professional Conduct, which
sent a tweet threatening Michael prohibit a lawyer from seeking to
Cohen before his Congressional influence jurors concerning the
testimony about President merits of a pending case by
Trump. Was he acting as a means prohibited by law or other
legislator, promoting the rules of procedure. 34
Republican party and its leader?
Or was he obstructing Congress Ethics rules and standards
and tampering with a witness in any given jurisdiction provide
before Congress? special guidance regarding such
In both cases, the speaker statements. The American Bar
claims to have been acting as a Association’s Criminal Justice
political or media flack.32 Do the Section Standards on Fair Trial
rules of ethics and professional and Public Discourse is one such
conduct apply to us in every role
in which we appear as a
representative?
32
One who provides publicity like a press practice of law or to practicing lawyers
agent or public relations professional. even when they are acting in a
33
Preamble to ABA Model Rules of nonprofessional capacity.” See eg Rule
Professional Conduct provides that 8.4.
“[T]here are rules that apply to 34 Tex. Disciplinary R. of Prof. Conduct
lawyers who are not active in the 3.06(a)(2).
14source. 35 They identify topics since their statements are likely
that pose a risk of prejudicing the to be received as especially
criminal proceeding such that authoritative.” 37 Limitations on
they should generally be avoided such speech are necessary to
by prosecutors. Those areas ensuring Defendants are not
include: (1) the defendant’s prior condemned by negative publicity
criminal record; (2) character, arising from prosecutorial
credibility or reputation; (3) race, statements. As the ultimate goal
ethnicity, creed, religion, or of a prosecutor is to serve justice,
sexual orientation; (4) personal even when that means dismissing
opinion as to guilt or innocence, a case, we hope that prosecutors
(5) existence or contents of any abide by these standards, and
confession or statement, or value the presumption of
failure to make a statement; (6) innocence.
results of or failure to submit to
any examination or test; (7) As discussed above, when
nature of physical evidence; (8) the government is in the initial
race, ethnicity, creed, religion, or phases of pre-trial investigations
sexual orientation, expected of a high-profile case, and the
testimony, criminal record, and grand jury has returned an
reputation of a witness or victim; indictment, a press conference
(9) the possibility of a plea; and will often follow. We see no
(10) information the prosecutor commentary however, when the
knows or has reason to know defense prevails and obtains an
would be inadmissible.36 acquittal after trial.
The Supreme Court in When prosecutors do decide
Gentile recognized that to make a press statement after
“extrajudicial statements [by an unfavorable disposition, it is
attorneys] pose a threat to a usually to stand behind their
pending proceeding’s fairness, initial investigation and decisions
since they have special access to made before and during the trial,
information through discovery if any. Seldom do these
and client communication, and subsequent statements contain
ABA CRIM. JUST. STAND. ON FAIR
35 36 ABA CRIM. JUST. STAND. ON FAIR
TRIAL AND PUBLIC DISCOURSE (2016). TRIAL AND PUBLIC DISCOURSE 8-2.2
(a)(i)-(ix)(2016).
37 501 U.S. 1030 (1991).
15apologies or an acknowledgement decision to drop charges was just
that justice has been done. that—not an exoneration. Magat
further made clear: “[a]n
Jussie Smollett was alternative disposition does not
recently charged with filing a mean that there were any
false police report claiming he problems or infirmities with the
was a victim of a hate crime. Law case or the evidence. We stand
enforcement involved in the behind the Chicago Police
investigation gave lengthy press Department’s investigation and
conferences, detailing their our decision to approve charges in
investigation prior to him being this case. We did not exonerate
charged. The press responded Mr. Smollett. The charges were
with wonderment at how guilty dropped in return for Mr.
Smollett was and speculated how Smollett’s agreement to do
much jail time he could be community service and forfeit his
expected to serve. When his case $10,000….” 38
was resolved in a manner
consistent with other false report After a jury acquitted East
cases (by a diversion), the news Pittsburgh Police Officer Michael
and outrage spread via public Rosfeld of the shooting of 17-year-
comments by the police old Antwon Rose, 39 Alleghany
department handling the case, County District Attorney
the Mayor of Chicago, and even Stephen A. Zappala Jr. issued a
the President of the United statement to the cameras, in light
States. of the immediate demonstrations
that erupted locally following the
After the Cook County verdict:
State’s Attorney’s office
dismissed charges against actor “While I respectfully
Smollett, prosecutor Joseph disagree with their verdict,
Magats explained that the it is the people of this
38
Prosecutors on Dropping Smollett 39P.R. Lockhart, Officer Who Shot
Charges: ‘We Did Not Exonerate’ Him, Antwon Rose is Accused of Past Civil
NBC CHI., Rights Violations, VOX (July 5, 2018),
https://www.nbcchicago.com/news/loca https://www.vox.com/identities/2018/7/
l/jussie-smollett-charges-dropped- 5/17537150/antwon-rose-police-
reaction-507673291.html (last updated shooting-pittsburgh-michael-rosfeld-
Mar. 26, 2019, 4:53 PM). civil-rights-lawsuit.
16commonwealth who decide have refrained from
guilty or not guilty, and disagreeing with the jury’s
they have spoken to this verdict and placing those
matter…. In the interest of jurors in the public eye and
justice, we must continue to exposing them to harassment.
do our job of bringing Such statements threaten to
charges in those situations intimidate future jurors and
where charges are discourages them from voting
appropriate, regardless of their honestly held beliefs in
the role an individual holds deliberations.
in the community.” 40
George Floyd, Breonna Taylor,
This statement was issued Sandra Bland, and Eric Garner
among demonstrators who and many other and cases have
called for the DA’s ouster: “Hey caused us to reexamine our
hey, ho ho, [DA] Steve Zappala charging, sentencing, and trial
has got to go!” decisions. We must do better
and we must do more.
In both instances the
statements of the Chicago J. Judicial Gag Orders—
police before charge and after When Should They Be
resolution tainted the jury pool Issued?
for the Smollett and other
cases. In contrast, the Trial judges presiding over
statements of DA Zappala criminal cases have an
fostered respect for the law affirmative duty to safeguard
and the criminal justice against potentially prejudicial
process. However, he should pretrial publicity. 41 This
40
Megan Guza & Renatta Signorini, News–Journal Corporation v. Foxman,
Not Guilty Verdict in Rosfeld Trial 939 F.2d 1499, 1512 (11th Cir. 1991)];
Sparks Demonstrations in Downtown, ABA CRIM. JUST. STAND. ON FAIR TRIAL
East Liberty, TRIB LIVE (Mar. 22, 2019, AND PUBLIC DISCOURSE 8-
4:000 AM), 4.1(a)(2016)[“[J]udges…should not
https://triblive.com/local/pittsburgh- make, cause to be made, or condone or
allegheny/what-to-expect-on-day-4-of- authorize the making of any public
the-michael-rosfeld-trial/. extrajudicial statement about a
criminal matter other than one
41Pedini v. Bowles, 940 F.Supp. 1020, concerning the processing of the
1023 (N.D. Tex. 1996) [citing The case.”].
17safeguard can be manifested in would effectively prevent
the form of “gag” orders which the threatened danger.” 44
restrict attorneys, parties, and
witnesses from making extra- Gag orders might provide
judicial statements about a case. protection and assurance that our
The United States Supreme clients receive a fair trial. But,
Court and Courts of Appeal follow when existing prejudice
different standards when threatens a fair trial, gag orders
reviewing gag orders, depending acrt as a barrier to protecting
on the subject of the order.42 In clients’ interests and reputations.
the Fifth Circuit, “gag” orders Gag orders have become more
targeting attorneys are only prevalent and may be excessive
permitted where there is a when applied to the media. When
substantial likelihood that applied to individual citizens
extrajudicial commentary will involved in the proceedings, they
undermine a fair trial.43 The may also be excessive based on
Northern District of Texas has the scope of the order. 45 “Because
further analyzed that standard. a gag order on the parties does
“Gag” orders will issue when: not affect the media’s rights, and
is narrower than a blanket gag
“(1) there is a clear or order on all the media, it’s
serious threat to the considered a less restrictive
fairness of the trial; (2) less means of protecting fair trial
restrictive alternatives are rights.”46
not adequate to mitigate the
harm; and (3) the order In United States v. Brown,
the district court imposed a gag
42 United States v. Scarfo, 263 F.3d 80, (last visited Apr. 7, 2019).
92 (3d. Cir. 2001). 46 Isabel Farhi, When Silence Isn’t
43 United States v. Brown, 218 F.3d Golden: How Gag Orders Can Evade
415 (5th Cir. 2000). First Amendment Protections, YALE L.
44 Pedini v. Bowles, 940 F.Supp. 1020, SCHOOL, MEDIA FREEDOM & INFO.
1024 (N.D. Tex. 1996) [citing Nebreska ACCESS CLINIC (Oct. 24, 2017),
Press Ass’n v. Stuart, 427 U.S. 539, https://law.yale.edu/mfia/case-
563 (1976)]. disclosed/when-silence-isnt-golden-
45
Ruth Ann Strickland, Gag Orders, how-gag-orders-can-evade-first-
FIRST AMENDMENT, amendment-protections.
https://www.mtsu.edu/first-
amendment/article/961/gag-orders
18order on the parties and speaking to the press was
witnesses mandating that they unconstitutional. 49 Scarfo’s
refrain from initial defense attorney was
disqualified from representation
“any public and subsequently revealed to the
communications media press that he expected the filing
about the case which could of a motion to suppress arising
interfere with a fair trial, from the government’s
including statements questionable surveillance
intended to influence public methods. 50 The district court
opinion regarding the rendered the order preventing
merits of this case, with “anybody from talking to the
exceptions for matters of press about the motion that [the
public record and matters court hadn’t] seen and…[knew]
such as assertions of nothing about.” 51 As an issue of
innocence.”47 first impression, Scarfo was
unique, because it examined the
On review, the Fifth Circuit held ability of the court to “gag” a
that “gag” orders may be issued criminal defendant’s former
when there is a substantial attorney, rather than the current
likelihood that extrajudicial attorney or the defendant.52 In
commentary will threaten a fair support of its holding, the court
trial and that the “gag” order in reasoned that the former defense
question did not violate the First counsel’s comments posed no
Amendment. 48 threat to the fairness of the trial
nor to the jury pool.53
Conversely, in United
States v. Scarfo, the Third Circuit Roger Stone, “[r]epublican
held that a gag order prohibiting operative and longtime Trump
former defense counsel from friend,” was faced with trouble
47 United States v. Brown, 218 F.3d 50 United States v. Scarfo, 263 F.3d 80,
415, 418 (5th Cir. 2000)[internal 83 (3d. Cir. 2001).
quotations omitted]. 51 United States v. Scarfo, 263 F.3d 80,
48 United States v. Brown, 218 F.3d 83 (3d. Cir. 2001).
415 (5th Cir. 2000). 52 United States v. Scarfo, 263 F.3d 80,
49 United States v. Scarfo, 263 F.3d 80, 91 (3d. Cir. 2001).
83 (3d. Cir. 2001). 53 United States v. Scarfo, 263 F.3d 80,
95 (3d. Cir. 2001).
19after a judge learned that the bond.” That they will support the
book he was planning to publish constitution, demean themselves
carried the potential of violating in the practice of law, discharge
a “gag” order to which Stone was duties to clients to the best of
subject. Although Stone is not an their abilities, and conduct
attorney, and the court merely themselves with integrity and
issued a warning, U.S. District civility when dealing or
Judge Jackson stated that she communicating with all courts
had “‘serious doubts whether and parties. Under the Creed,
[Stone] learned any lesson at all,’ counsel should treat all
and warned she would order him differently abled and persons
to jail for future violations.”54 different from themselves with
Clearly, Stone cannot be the same respect and courtesy
prevented from publishing a book counsel desire for themselves.
he had written before he was Recent studies show that
charged with any offense. He has women lawyers are dismissed,
a First Amendment right to harassed, and treated in a
engage in free speech. It may paternalistic manner in courts.
have been wise to advise the Long standing statistics show
Court of the impending that more African Americans are
publication at the time the gag sentenced to prison than expected
order issued. However, a gag in light their percentage of the
order should not extend so far. population and commission of
similar crimes by white
defendants. And disabled
II. Implicit and Other Biases persons are overlooked or
The Texas Lawyers Creed is incorrect assumptions are made
one all counsel swear to uphold about their abilities. An example
when they become lawyers. is my observation during the time
Under the Creed, lawyers that I was wheel chair bound that
promise that their “word is [their] persons would stand in front of
54Spencer S. Hsu & Manuel Roig- legal-issues/judge-orders-roger-stone-
Franzia, Judge Orders Roger Stone to to-explain-imminent-release-of-book-
Explain Imminent Release of Book that-may-violate-gag-
That May Violate Gag Order, WASH. order/2019/03/01/c5302c0e-3c80-11e9-
POST (Mar. 3, 2019), aaae-
https://www.washingtonpost.com/local/ 69364b2ed137_story.html?utm_term=.
46778db7d62c.
20me, blocking my view or egress, able to represent more than one
and would speak to me loudly as person in a case because of
if I were hearing disabled as well. counsel’s duty of loyalty to the
The Texas Lawyers Creed client and the competing
requires that we treat all court interests of each client. For
participants well. We should be example, in Wheat v. U.S., 486
mindful of our own implicit U.S. 153 (1988) case, Eugene
biases. Once we become aware of Iredale sought to represent
them, we self-correct. Becoming Wheat after previously
aware of implicit biases is simple representing a co-defendant. The
with readily available through United States Supreme Court
internet testing (IAT tests)55 and upheld the disqualification of
recognition of current Iredale because his position
stereotypes. representing both co-defendants
would become “untenable”
particularly because he could not
III. Conflicts of Interest cross-examine his former client,
one of the co-defendants, in any
We are all familiar with the meaningful way57
conflict of interest created by An additional conflict of
multiple representation. Where interest arises because of the
one lawyer (or one firm)56 placement of Criminal Justice
endeavors to represent two Act (CJA) vouchers under the
persons in one case. Each client authority of federal district
has different interests and judges and the Fifth Circuit
criminal exposure. It is the rare
case in which the lawyer would be
Implicit Association Test available online through favor of his current client. Please note
55
Harvard.
that the Wheat v. U.S., 486 U.S. 153
56 If one lawyer in a firm has a conflict 1988) has been overruled in part by
of interest, all lawyers in that firm U.S. v. Gonzales-Lopez, 548 U.S. 140
share the same conflict of interest. In (2006), which held that one’s right to
such situation, when the lawyer is counsel of choice is not satisfied by the
disqualified, the entire firm is fact that other competent counsel is
disqualified. available to try the case. Depriving
57 This is because he could not use any
one of their counsel of choice is
information that he learned by virtue structural error. U.S. v. Gonzales-
of representing his former client to Lopez, 548 U.S. 140, 151 (2006).
assist his current client and could not
act adversely to his former client in
21Court of appeals to regulate.58 government to its proof in
The Cardone Report noted that assuring that no one is unjustly
unwarranted voucher cutting convicted of a crime” … “in
takes place in Texas and that criminal cases, a defense lawyer
placement of CJA regulation may…put the government to its
under the judiciary creates a proof in every case and require
conflict of interest. If counsel are the prosecutor to prove every
neglecting to ask for expert element of the offence to assure
witnesses, immigration counsel, that no one is unjustly convicted.”
or investigative assistance in This means that Lawyers can ask
cases where it is needed because for the government to prove its
a judge disfavors such requests; case and lawyers have a duty to
then counsel is functioning with zealously act to make sure their
an actual conflict of interest. client is not wrongfully convicted.
Because a judge disfavors such Judges that restrict the necessary
requests or will voucher cut fees resources of appointed counsel
in cases where such requests are undercut this principle and
made, the lawyer under these undermine justice when they do
circumstances is looking out for so to save money. Attorneys, by
their own reputational or folding to the authority of such
economic best interests with the judges, violate their duty of
judge and, thus, are acting loyalty. Because the accused in a
adversely to the client. criminal case is entitled to
This is because the voucher counsel to represent his or her
cutting process is preventing the interest “single-mindedly”
lawyer from zealously without loyalty divided between
representing his client. Rule 9.3 the client and another that might
of the ABA Model Rules of restrain or interfere with the
Professional Responsibility states lawyer’s judgement or actions on
that “A lawyer shall represent a behalf of the client.” Counsel
client zealously within the should always request the
bounds of the law.” “The duty of necessary resources regardless of
zealousness is a duty not just to the popularity of such requests.
the client, but to the system of Our clients have little faith
justice as well in putting the in the justice system and justice
58See generally 2017 Report of the Ad Report) pages xviii-xix; The Crisis in
Hoc Committee to Review the Federal Criminal Law
Criminal Justice Act (the Cardone
22perceived is as important and criminal case, a client has a
justice received. Recent rap lyrics privilege to prevent a lawyer or
show the public popular lawyer’s representative from
impression that justice is only disclosing any other fact that
available to those with came to the knowledge of the
substantial assets. Jay Z raps lawyer or the lawyer’s
that when he is stopped by the representative by reason of the
police he has “99 problems but attorney-client relationship.”
the bitch ain’t one, hit me.” “Plus Tex. R. E. 503(b)(2). This rule
I got a few dollars, I could fight broadens the attorney-client
the case.” Reflecting that because privilege, which protects
he has money, Jay Z does not feel information relating to the
he will be convicted of an offense representation, to include client
or given an enhanced penalty. In confidences. Client confidences
addition, Ice Cube raps “Public are any information learned by
Defender, Public Pretender” virtue of the representation. For
indicating his lack of confidence example, when Michael Cohen,
in an attorney who is not paid. President Trump’s attorney,
And TayK47 raps that he needs testified before Congress that the
“a hunnit bands” [lots of money], President was a bigot, he violated
to “tryna beat a case” but that “I the Texas attorney-client
ain’t beat a case, bitch, I did the privilege. The specific instances
race,” indicating that he had to that Mr. Cohen mentioned to
flee because he did not have the support his claim that President
funds to defend himself. Trump is a racist, he learned
To begin to engender while spending time with the
confidence in our criminal justice President as his attorney.
system, we must address these Any other legal advice or
popular fears. work that Mr. Cohen testified
regarding, that did not fall under
the crime/fraud exception, was
IV. Attorney-Client Privilege also a betrayal of client
confidences and the privilege.
The attorney-client There is a video in the
privilege in Texas is much presentation where President
broader than the privilege in Trump denies knowledge of a
other states. Texas Rule of payment made to Stormy Daniels
Evidence 503 states, “In a and directs the press to speak to
23his lawyer, Michael, about it. his testimony about those other
This relayed to the press and the matters (the auction of a portrait)
public that Trump had not and confidences (that Trump is a
engaged Cohen as counsel to racist) revealed client confidences
arrange a non-disclosure and privileged communications.
agreement in exchange for
consideration. Thus, Trump was V. Federal Prosecutors’ Duty to
advising the public and Special Disclose Relevant Favorable
Counsel Robert Mueller that any Evidence Under the Texas Rules
information Michael Cohen had
The Michael Morton Act is a
about the Stormy Daniels
unique law designed to prevent
payment was his own information
and combat prosecutorial
and not subject to the attorney
misconduct in the discovery
client privilege. Was that waiver
process.60 The Texas legislature
of the attorney-client privilege,
enacted the Michael Morton Act
does this example fall under the
to radically change the criminal
crime /fraud exception 59, or does
discovery process in Texas, which
it merely indicate that Cohen’s
previously disadvantaged
Stormy Daniels records were not
defendants by placing a burden
privileged in the first place?
on defense counsel to show good
Either way, Cohen’s
cause why extremely limited
testimony violated the attorney-
information might be ordered
client privilege. The crime/fraud
disclosed by a court. 61 Prior
exception did not extend to all
discovery in Texas was similar to
matters in which Cohen
discovery under the federal rules.
represented the President. Thus,
59
The crime/fraud exception applies when a client or evidence regardless of materiality
lawyer seeks to use a lawyer’s services or advice to
[Francis v. State, 428 S.W.3d 850, 856
commit a crime or fraud.
60Codified in amended article 39.14, n.12 (Tex. Crim. App. 2014) (noting
the Michael Morton Act shifts the the prior version of article 39.14 was
prosecution’s duty to disclose evidence in effect at the time of trial)]; See also
in Texas from a discretionary decision Cynthia E. Hujar Orr & Robert G.
based on good cause to a relevance- Rodery, The Michael Morton Act:
based decision based on counsel’s Minimizing Prosecutorial Misconduct,
request [TEX. CODE CRIM. PROC. 46 ST. MARY'S L.J. 407, 419 (2015).
61 See Cynthia E. Hujar Orr & Robert
ANN. §39.14 (West 2014)]. The victory
in the Michael Morton case places the G. Rodery, The Michael Morton Act:
prosecution under a statutory duty to Minimizing Prosecutorial Misconduct,
continually disclose exculpatory 46 ST. MARY'S L.J. 407, 409 (2015).
24See Rule 16 of the Federal Rules ethical rule is to impose on the
of Criminal Procedure. But the prosecutor the professional
Michael Morton Act, codified in obligation to “see that the
Rule 39.14 of the Texas Rules of defendant is accorded procedural
Criminal Procedure now requires justice, that the defendant’s guilt
relevance-based discovery of is decided upon the basis of
favorable matters relevant to the sufficient evidence, and that any
matter. It is very broad, far sentence imposed is based on all
reaching, and requires only a unprivileged information known
request by defense counsel. to prosecutor.” Tex. Disciplinary
Following the Texas discovery Rules Prof’l Conduct R. 3.09(d)
rule, Rule 3.09(d) of the Texas cmt. 1. Unlike Brady, this
Rules of Professional Conduct obligation is regardless of the
requires prosecutors in criminal anticipated impact. While the
cases to timely disclose “all purpose of disclosure under the
evidence or information known to Brady constitutional duty is to
the prosecutor that tends to merely assure a fair trial under
negate the guilt of the accused or the due process clause and
mitigates the offense[.]” requires materiality.
Materiality is not a component of All prosecutors practicing in
this test. Texas courts, both state and
Rule 3.09(d) encompasses a federal, are subject to Rule
prosecutor’s duty to disclose 3.09(d). The Texas Disciplinary
exculpatory evidence imposed Rules of Professional Conduct
under Brady v. Maryland, 373 provide this in its jurisdictional
U.S. 83 (1963) but it goes much rule. Rule 8.05(a): Jurisdiction
further than that. In Shultz v. states “[a] lawyer is subject to the
Comm’n. for Law. Discipline, OP. disciplinary authority of this
55649 (Tex. Bd. Disp. App. 55649, state, if admitted to practice in
Dec. 17, 2015) the Texas Board of this state or if specifically
Disciplinary Appeals held that admitted by a court of this state
rule 3.09(d) is broader than for a particular proceeding.” And
Brady based on the plain the United States District Court
language of the rule and the for the Western District of Texas,
different purpose of the duty to as well as other districts in Texas,
disclosure favorable evidence requires “[m]embers of the Bar of
under the disciplinary rule. The this court and any attorney
purpose for disclosure under the permitted to practice before this
25court [to] comply with the pervasive public discourse. And
standards professional conduct they should consider that
set out in the Texas Disciplinary avoiding conflicts of interest
Rules of Professional Conduct” in include not only avoiding
Rule 7 Discipline of Attorneys. multiple representation, but also
What this means is that obtaining necessary resources
regardless of where a lawyer is despite the fact that judges may
licensed, they are bound by the disfavor such request.
broad disclosure requirements
contained in Rule 3.09 that
reflects the disclosure scheme set
out in the Michael Morton Act. I
have included a motion and order
acknowledging this in your
materials for your use from one of
my cases in the Southern District
of Texas.
VI. Conclusion
While ethical rules provide
no affirmative duties on
prosecutors to act in a given case
and Department of Justice
Policies create no rights for
defendants, they do provide
incentive for prosecutors to
provide broad discovery. Each
prosecutor seeks to avoid an
encounter with the Office of
Professional Responsibility or the
State Bar of Texas if they are
licensed here.
In addition, counsel should
be mindful that their areas of
required competence and
effective practice have changed
with advance technology and
26Criminal Court Reopening and Public Health
in the COVID-19 Era
NACDL Statement of Principles and Report
Photo credit: CDC Alissa Eckert, MS; Dan Higgins, MAMS
June 2020Contents
Summary of Core Principles for Reopening Courts ....................................................................... 1
Introduction ..................................................................................................................................... 2
The Inherent Tension ...................................................................................................................... 3
Explication of Core Principles for Reopening Courts .................................................................... 3
Discussion ....................................................................................................................................... 6
I. Reopening Must Be Based on Science, Must Be Made Under
Independent Medical Supervision, and Must Be Limited
to the Duration of the Pandemic
(Principles 1, 2, and 3). ........................................................................................................ 6
II. Measures Designed to Facilitate Reopening Cannot Be Implemented
Unless Conditions Are Restored for Defense Counsel to Fulfill
Their Sixth Amendment Functions
(Principles 4 and 5). ............................................................................................................. 8
III. Measures Designed to Facilitate Reopening Must Not Abridge
Fundamental Constitutional, Statutory, or Customary Rights
(Principles 6, 7, and 8). ........................................................................................................ 9
IV. Measures Designed to Facilitate Reopening Must Not Exacerbate
the Historic Failures of the Criminal Legal System
(Principles 9 and 10). ......................................................................................................... 12
Appendix A ................................................................................................................................... 13
Appendix B ................................................................................................................................... 18
Appendix C ................................................................................................................................... 21Summary of Core Principles for Reopening Courts
I. In-Person Proceedings Must Be Certified by Independent Medical
Experts to Present Minimal Risk of COVID-19 Transmission
II. High-Risk Individuals Should Not be Required to Participate in In-Court
Proceedings in Which There is a Risk of Infection in the Courthouse, Nor
Should That Person or the Accused Suffer Any Penalty or Loss of Rights
for Declining to Participate
III. Any Measures Implemented to Address the Pandemic Must Be Limited
to the Duration of the Pandemic and Tailored to Meet an Articulated
Public Health Need
IV. Criminal Proceedings Require That Conditions Are Restored That
Ensure Defense Counsel Can Meet Their Sixth Amendment Obligations,
Including the Conditions Necessary for Robust, Ethical Attorney-Client
Relationships
V. Criminal Proceedings Require That Conditions Are Restored That
Ensure Effective Representation by Conflict-Free Defense Counsel
VI. Constitutional Rights Must Not Be Abridged
VII. Use of Virtual Mechanisms Must Be Temporary, Limited, and Consistent
with Constitutional Rights
VIII. Use of Virtual Mechanisms Requires the Informed and Voluntary
Consent of the Accused Based on a Robust Attorney-Client Relationship
IX. Any Measures Implemented to Address the Pandemic Must Not
Exacerbate the Well-Recognized Historic Failures of the Criminal Legal
System
X. Courts Should Use Pre-Trial Release and Other Mechanisms to Minimize
the Pressures on the Accused During the Pandemic, Including Affording
an Accused the Unilateral Right to Elect a Bench Trial Where that Right
Does Not Already Exist
1Introduction
NACDL recognizes that the unprecedented public health risks caused by the COVID-19 pandemic
present enormous challenges for court operations especially in criminal matters where liberty, and
in some venues, life are at stake.1 There is an inherent conflict between core constitutional rights
and public safety. A highly infectious and potentially deadly disease, which experts in the medical
profession have concluded spreads most virulently when people are in close proximity in enclosed
spaces for extended periods, makes business as usual in the nation’s courthouses impossible.2
From a legal perspective, there can be no justice when fundamental constitutional rights are
suspended or curtailed.3 NACDL members have reacted with care and courage by seeking release
for incarcerated individuals who face increased risk of COVID-19 infection by virtue of age, race,
pre-existing medical conditions, conditions of confinement, or other factors. Despite personal risk
of exposure and adverse economic circumstances, NACDL members have remained steadfastly
committed to their clients and to the Constitution to ensure that the fear and panic caused by this
pandemic does not undermine our shared values of liberty and fairness.4
While the medical profession is reporting evidence of a resurgence of the virus and warning that a
second wave of deadly infection is expected for autumn 2020, the nation’s courts press forward
with tentative reopening. It is imperative that leadership of the judiciary and other stakeholders
understand the implications for the criminal legal system and adhere to core principles going
forward.
1
NACDL has issued several statements to address the impact of the COVID-19 pandemic on the criminal justice
system. See March 4, 2020, NACDL Statement: Nation’s Criminal Defense Bar Calls for Prompt Implementation of
Comprehensive, Concrete, and Transparent COVID-19 Coronavirus Readiness Plans for Nation’s Prisons, Jails, and
Other Detention Facilities; March 19, 2020, NACDL Statement of Principles and Further Call to Action Concerning
COVID-19 and America's Criminal Justice System; May 9, 2020, NACDL Supplemental Statement of Principles and
Further Call to Action Concerning COVID-19 and America’s Criminal Justice System: Avoiding Criminalization in
Confronting COVID-19 (via May 11, 2020, NACDL News Release); May 27, 2020, Joint Statement: Proposed Public
Health and Public Safety Pathways for Criminal Justice System Responses to COVID-19 (May 27, 2020) (“The
principles below represent pathways for institutionalizing approaches that maintain high levels of health and safety
during this unprecedented public health crisis and beyond.”) (Read the joint news release here.)
2
https://nypost.com/2020/04/28/coronavirus-in-ny-3-judges-die-almost-170-court-workers-infected/;
https://www.nydailynews.com/coronavirus/ny-coronavirus-pandemic-unprepared-nyc-courts-20200526-
fe2zknj7cbgutpjdn3vtfruiiq-story.html;
https://www.latimes.com/california/story/2020-05-28/los-angeles-county-public-defender-dies-from-covid-19
3
https://eji.org/news/covid-19s-impact-on-people-in-prison/
4
As Attorney General William Barr stated in his memorandum of April 27, 2020, “[T]he Constitution is not suspended
in times of crisis. We must therefore be vigilant to ensure its protections are preserved, at the same time that the public
is protected.”
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