Posted by Eugene Volokh:
Louisiana Capital Post-Conviction Project Lawyer Trying To Suppress Blog
Commentary About Case:
http://volokh.com/archives/archive_2009_03_01-2009_03_07.shtml#1236116981
[1]Ben Sheffner (Copyrights & Campaigns) has the story, with all the
links you can want. Patrick Frey confirms that the commenter does
indeed seem to be the lawyer (something that's generally worth
checking on the [2]Internet). Here's an excerpt from Sheffner's long
and detailed post:
Patrick Frey is a Los Angeles County Deputy District Attorney. He
also has a blog called "Patterico's Pontifications," which features
news, analysis, and commentary on subjects including politics, the
criminal justice system, and media bias. Frey's blog includes a
disclaimer on the front page making clear that his blogging is
completely separate from his work as a prosecutor ....
Frey recently wrote a long and detailed post about allegations that
2 prosecution experts in a Louisiana murder case manufactured
evidence that helped send the defendant, Jimmie Duncan, to death
row. Frey's post included extensive analysis of the forensic
evidence, and the results of an interview he conducted with a
prosecution expert witness (who was not accused of manufacturing
evidence)....
Duncan's appellate attorney[,] ... Kathy Kelly of the Capital
Post-Conviction Project of Louisiana left the following comment on
Frey's blog:
I�m am [sic] Mr. Duncan�s lawyer. This case is currently on appeal.
You are not the prosecutor, the judge or a forensic expert. You
have noted contacting several people who are potential witnesses in
the case and who will be called as witnesses later on in an
evidentiary hearing. As a lawyer you should no [sic] that you have
no business talking to witnesses when you are not a party to this
case. Cease immediately or I will file an ethics complaint with
your state bar.... You are a memeber [sic] of the general public
you have no right to be demanding that this child�s autopsy or
medical records be turned over to you. Again you are neither the DA
or the JUdge [sic] in this case.
What? It's an ethical violation for an attorney who blogs as a
hobby to act exactly as a reporter: interviewing witnesses and
seeking relevant documents? On a case in which he has no official
involvement as an attorney? ...
Sheffner analyzes the California Rules of Professional Conduct, and
concludes there's nothing at all unethical in Frey's opining on the
case. I'm not expert enough on the Rules to verify this, but I can say
that First Amendment law should and likely does protect Frey's speech
even if Sheffner is mistaken and the Rules do indeed purport to
restrict Frey here (which I have no reason to believe is the case).
The Court has upheld (in [3]Gentile v. State Bar) some restrictions on
lawyer speech about his client when there's an impending trial,
chiefly because of concerns that the speech may unduly influence
jurors. But this rationale certainly doesn't apply to speech by
someone who isn't a lawyer for one of the parties, and who is speaking
while the case is on appeal (and thus before judges, who presumably
know enough not to be unduly influenced by public comments about the
case).
Frey's response, which is much to his credit: "I don�t intend to cease
exercising my First Amendment right to speak about matters of
legitimate public concern because some lawyer who is mispresenting the
content of my post threatens a bogus complaint to my State Bar."
References
1.
http://copyrightsandcampaigns.blogspot.com/2009/03/louisiana-criminal-defense-lawyer.html
2. http://www.unc.edu/depts/jomc/academics/dri/idog.html
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=501&invol=1030
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