On February 28, 2013, the Virginia Supreme Court affirmed in part and reversed in part the decision of the Three-Judge Circuit Court Panel overturning the decision of the Third District Disciplinary Committee of the Virginia State Bar which had found that Horace F. Hunter violated Rule 1.6 of the Rules of Professional Conduct by writing articles about trials in which he was personally involved as counsel.  The Third District Disciplinary Committee had also found that a disclaimer was required on the blog as the blog constituted an advertisement.  The Three-Judge Panel found that the writings were protected by the First Amendment to the United States Constitution and the Virginia State Bar could not prohibit Hunter from discussing what happened during the course of a public trial.  The Three-Judge Panel appeared to compromise on the issue of whether a disclaimer was required under Rule 7.2 (a) of the Rules of Professional Conduct, the rule governing attorney advertising, and drafted their own disclaimer that did not contain the language urged by the Bar.  The Bar argued that Hunter’s blog was an advertisement and therefore subject to regulation while Hunter maintained that the blog was political speech and absolutely protected under the Fist Amendment.  In a 7-2 decision, the Virginia Supreme Court unanimously held that under the First Amendment the Virginia State Bar could not prohibit Hunter from discussing trials in which he was personally involved.  However, the Court split 7-2 on the issue of whether the articles written on Hunter’s blog constituted commercial speech and, as such, were subject to regulation by the Virginia State Bar and found that the articles were, in fact, commercial speech and therefore subject to regulation.

    The case arose out of an investigation by the Bar into a blog written by Horace F. Hunter of the law firm of Hunter & Lipton, PC.  The law firm maintains a website and the website hosts a blog entitled “This Week in Richmond Criminal Defense.”  This Week in Richmond Criminal Defense consists of articles written by Hunter and involves topics relevant to the criminal justice system and, on their face, is news and commentary.  The problem for the Bar was that they considered the blog advertisement and wanted Hunter to put a disclaimer on his blog identifying it as an advertisement.  Hunter took the position that the actual content of the speech in question, ranging from articles criticizing Attorney General Alberto Gonzalez for the firing of eight United States Attorneys, to descriptions of the content and operation of state and federal law, such as the elements of a criminal prosecution under the federal Racketeering Influenced and Corrupt Organizations Practices Act, to descriptions, sometimes editorial commentary, of the outcomes of judicial proceedings in state and federal courts, clearly fell within the core definition of political speech protected by the First Amendment.  The Bar took the position that because he was writing articles about his own cases, Hunter had created a de facto advertisement and the rules governing attorney advertising applied to Hunter’s Blog.  The Bar never provided any controlling authority to support its contention that the blog was a de facto advertisement in spite of the fact that Hunter provided the Bar with ample authority supporting his contention that the content of the blog was absolutely protected political speech.  In fact, Hunter provided the Bar with United States Supreme Court cases that have long held that there is nothing of more public concern than the government’s conduct of criminal trials; “There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment….the judicial system, and in particular our criminal justice courts, play a vital part in a democratic state, and the public has a legitimate interest in their operations.”  Gintile v. State Bar of Nevada.  In spite of the efforts of Hunter to work out a compromise disclaimer that would have alleviated the concerns of the Bar as well as maintained the integrity of the blog without having to identify it as an advertisement, the Bar refused to make any concessions.

    Ultimately, Hunter refused to add a disclaimer to his blog identifying it as an advertisement and the Bar filed formal charges of misconduct.  After receiving the charges of misconduct, Hunter immediately filed suit against the Bar in the United States District Court for the Eastern District of Virginia seeking injunctive relief from the disciplinary action.  Judge John A. Gibney, Jr. dismissed the suit on the abstention doctrine and did not to address the First Amendment issue.  His ruling stated that Hunter would have ample opportunity to present the First Amendment issue in the Bar proceeding and although the federal courts have jurisdiction, it would be inappropriate to intervene in an ongoing state judicial proceedings.

    Hunter eventually hired Rodney Smolla, former dean of the University of Richmond and Washington & Lee law schools and one of the most preeminent First Amendment scholars in the county, to assist in the preparation of his case.  Smolla filed a 31 page brief citing numerous cases that rejected the Bar’s position that the speech in question was commercial speech and therefore deserving of less First Amendment protection.  In a stunning reversal, the Bar shifted the focus of its case from the failure of Hunter to put a disclaimer on his blog to his failure to obtain client consent prior to writing articles regarding the trial of their cases.  It appears that the Bar realized that their position was tenuous on the Fist Amendment issue regarding the disclaimer and felt that the failure of Hunter to get his clients’ consent would resonate more with the disciplinary panel.  The problem for the Bar on this issue was that there was a very recent case, Turner v. Commonwealth, which rejected that position out right.  The Bar argued that the case in question was not binding upon the panel and the panel could distinguish it from the facts of this case.

    After a full day of testimony and argument, the disciplinary committee sided with the Virginia State Bar.  It was a somewhat bizarre finding because their written decision made no mention of any of the First Amendment authority cited by Hunter in this case.  In fact, the written decision simply stated “the panel found no difference between marketing and advertising as defined in Rule 7.2.”  This was a very curious statement because the Supreme Court of the United States has not only found a fundamental difference between marketing and advertising, they have very clearly defined advertising for First Amendment analysis.  The disciplinary committee never addressed the standard they applied in finding the articles to be advertisements.  Further, the panel never provided any case law, scholarship, or analysis in determining that the blog constituted an advertisement as defined by the Supreme Court.  This was especially troubling in light of the fact that there have been two landmark First Amendment cases on this very issue that have been decided recently in the Untied States Supreme Court;  Citizens United v. Federal Election Commission and Sorrell v. IMS Health, Inc..  Equally as troubling was the disciplinary committee’s conclusion that the information disclosed at public trials was somehow confidential.  The decision stated, “Turner articulated a two-pronged test that the information must be both publicly relayed and generally known.  The panel did not find that the two cases cited as examples of violations met that standard.”  First, it is not clear what the disciplinary committee was referring to in that statement.  Secondly, Turner stated that information disclosed publicly during the course of a public trial is by definition “publicly known.”  Again, the disciplinary committee provided no authority, scholarship, nor any analysis on this issue.  Therefore, it is unclear how the committee reached its conclusions.
 
    The Three-Judge Panel appeared more determined to address the Fist Amendment issue than was the disciplinary committee.  In fact, the Three-Judge Panel was very troubled by the Bar’s position with respect to the allegation that Mr. Hunter committed an ethical violation by discussing elements of cases that became known at public trials.  This was very disconcerting for the Bar as they felt the alleged Rule 1.6 violation was the strongest part of their case.  Rodney Smolla attacked this alleged violation head on and in his opening remarks stated, “Every American lawyer has a First Amendment right, at the conclusion of a trial, to publicly read a transcript of that proceeding or discuss the proceeding, whether it is in a law school forum, a CLE, or on Fox News or CNN.”  He further argued that an “open public courtroom is no longer subject to Rule 1.6.  Period.”  He argued that “with very rare exceptions, we do not have ‘secret’ trials in this country.”  This argument seemed to resonate with the panel as the Judges continually asked whether a lawyer could discuss a case in which he or she was involved at a seminar, CLE, or some other academic or educational venue.  In fact, Judge Swersky appeared to take issue with Bar counsel continuing to argue that Hunter disclosed information regarding his clients’ cases by asking, “Isn’t it true though that Mr. Hunter did not “disclose” the information but that the information was disclosed during the course of the trials?”  Bar counsel then had to give a strained definition of the term “disclosure.”  With respect to whether a disclaimer was required, Smolla first argued that the blog was non-commercial speech and therefore not subject to regulation by the state.  He then argued that the articles written by Mr. Hunter on his blog were not inherently misleading.  Finally he argued that Mr. Hunter had offered an alternate disclaimer which should have taken all of the oxygen out of the room and quelled any concerns the Bar could have possibly had with his blog.  The alternate disclaimer read,

“This Week In Richmond Criminal Defense is a blog written by Horace F.
Hunter, founder and owner of Hunter & Lipton, PC.  The blog contains articles written by him which focus on issues relevant to the criminal
justice system.  To the extent that the articles discuss cases in which
Horace F. Hunter was personally involved as counsel, they are not intended to predict a similar outcome in future cases.”

Judge Melvin inquired as to whether the parties had tried to reach an agreement on the language of a disclaimer.  The parties acknowledged that there had been talks, but no agreement could be reached.  The Panel decided that a disclaimer would be required and Judge Melvin dictated a two-sentence disclaimer: “Case results depend upon a variety of factors unique to each case.  Case results do not predict similar results in any future case.”  The Panel did not require any other language or conditions mandated by Rule 7.2(a).

    The case was then appealed to the Virginia Supreme Court where Hunter challenged the Three-Judge Panel’s determination that any disclaimer was required while the Bar challenged that Court’s finding as to the lack of a Rule 1.6 violation.  The Virginia Supreme Court unanimously held that any prohibition preventing a lawyer from discussing events surrounding a public trial of criminal cases was a violation of the First Amendment.  The Court reasoned that it is well settled law that attorney speech regarding matters of public proceedings is protected by the First Amendment.  However, a seven Justice majority found that the articles written on the blog constituted commercial speech and the Bar’s regulation of that speech by way of requiring a disclaimer was reasonable.  The Court reasoned that because This Week in Richmond Criminal Defense is part of the law firm’s website and Hunter conceded that part of his motivation for writing the blog is economic then the content of the blog is therefore commercial speech.  This reasoning by the Court is troubling for two reasons.  First, the Majority does not address the actual content of the articles in reaching its determination that the speech was commercial.  As was noted by the Dissent, the content of the articles is quintessentially political.  Also, the majority does not address the sufficiency of the alternate disclaimer proffered by Hunter.  The Majority found that the articles were “potentially” misleading without a disclaimer but never found that the disclaimer offered by Hunter was potentially misleading.  Also, there is some question as to whether the majority used the appropriate standard in disclaimer cases.  The Majority found that if the communication is “potentially” misleading a disclaimer can be required.  However, many observers believe that the communication must be “inherently” misleading before a disclaimer can be required.

    The Dissent in this case was fairly vigorous in its determination that the speech was political, not commercial.  The Dissent focused on the actually content of the articles rather than any motivation Hunter may have had in writing them.  Writing for the Dissent, Justice Lemons stated,

                        “Speech concerning the criminal justice system has always been viewed as political speech….As political speech,
                        Hunter uses his blog to give detailed descriptions of how criminal trials in Virginia are conducted.  He notes how the acquittals of some of his
                        clients has exposed flaws in the criminal justice system.  The majority asserts that because Hunter only discusses his victories, his blog is commercial. 
                        The majority does not give sufficient credit to the fact that Hunter uses the outcome of his cases to illustrate his views of the system.”

    The case will now likely head to the United States Supreme Court for review. 

On June 5, 2012, a Three-Judge Panel overturned the decision of the Third District Disciplinary Committee of the Virginia State Bar which had found that Horace F. Hunter violated Rule 1.6 of the Rules of Professional Conduct by writing articles about trials in which he was personally involved as counsel.  The Third District Disciplinary Committee had also found that a disclaimer was required on the blog as the blog constituted an advertisement.  The Three-Judge Panel found that the writings were protected by the First Amendment to the United States Constitution and the Virginia State Bar could not prohibit Hunter from discussing what happened during the course of a public trial.  The Three-Judge Panel appeared to compromise on the issue of whether a disclaimer was required under Rule 7.2 (a) of the Rules of Professional Conduct, the rule governing attorney advertising, and drafted their own disclaimer that did not contain the language urged by the Bar.  The Bar argued that Hunter’s blog was an advertisement and therefore subject to regulation while Hunter maintained that the blog was political speech and absolutely protected under the First Amendment. 

The case arose out of an investigation by the Bar into a blog written by Horace F. Hunter of the law firm of Hunter & Lipton, PC.  The law firm maintains a website and the website hosts a blog entitled “This Week in Richmond Criminal Defense.”  This Week in Richmond Criminal Defense consists of articles written by Hunter and involves topics relevant to the criminal justice system and, on their face, is news and commentary.  The problem for the Bar was that they considered the blog advertisement and wanted Hunter to put a disclaimer on his blog identifying it as an advertisement.  Hunter took the position that the actual content of the speech in question, ranging from articles criticizing Attorney General Alberto Gonzalez for the firing of eight United States Attorneys, to descriptions of the content and operation of state and federal law, such as the elements of a criminal prosecution under the federal Racketeering Influenced and Corrupt Organizations Practices Act, to descriptions, sometimes editorial commentary, of the outcomes of judicial proceedings in state and federal courts, clearly fell within the core definition of political speech protected by the First Amendment.  The Bar took the position that because he was writing articles about his own cases, Hunter had created a de facto advertisement and the rules governing attorney advertising applied to Hunter’s Blog.  The Bar never provided any controlling authority to support its contention that the blog was a de facto advertisement in spite of the fact that Hunter provided the Bar with ample authority supporting his contention that the content of the blog was absolutely protected political speech.  In fact, Hunter provided the Bar with United States Supreme Court cases that have long held that there is nothing of more public concern than the government’s conduct of criminal trials; “There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment….the judicial system, and in particular our criminal justice courts, play a vital part in a democratic state, and the public has a legitimate interest in their operations.”  Gintile v. State Bar of Nevada.  In spite of the efforts of Hunter to work out a compromise disclaimer that would have alleviated the concerns of the Bar as well as maintained the integrity of the blog without having to identify it as an advertisement, the Bar refused to make any concessions.

Ultimately, Hunter refused to add a disclaimer to his blog identifying it as an advertisement and the Bar filed formal charges of misconduct.  After receiving the charges of misconduct, Hunter immediately filed suit against the Bar in the United States District Court for the Eastern District of Virginia seeking injunctive relief from the disciplinary action.  Judge John A. Gibney, Jr. dismissed the suit on the abstention doctrine and did not to address the First Amendment issue.  His ruling stated that Hunter would have ample opportunity to present the First Amendment issue in the Bar proceeding and although the federal courts have jurisdiction, it would be inappropriate to intervene in an ongoing state judicial proceedings.

Hunter eventually hired Rodney Smolla, former dean of the University of Richmond and Washington & Lee law schools and one of the most preeminent First Amendment scholars in the county, to assist in the preparation of his case.  Smolla filed a 31 page brief citing numerous cases that rejected the Bar’s position that the speech in question was commercial speech and therefore deserving of less First Amendment protection.  In a stunning reversal, the Bar shifted the focus of its case from the failure of Hunter to put a disclaimer on his blog to his failure to obtain client consent prior to writing articles regarding the trial of their cases.  It appears that the Bar realized that their position was tenuous on the Fist Amendment issue regarding the disclaimer and felt that the failure of Hunter to get his clients’ consent would resonate more with the disciplinary panel.  The problem for the Bar on this issue was that there was a very recent case, Turner v. Commonwealth, which rejected that position out right.  The Bar argued that the case in question was not binding upon the panel and the panel could distinguish it from the facts of this case.

After a full day of testimony and argument, the disciplinary committee sided with the Virginia State Bar.  It was a somewhat bizarre finding because their written decision made no mention of any of the First Amendment authority cited by Hunter in this case.  In fact, the written decision simply stated “the panel found no difference between marketing and advertising as defined in Rule 7.2.”  This was a very curious statement because the Supreme Court of the United States has not only found a fundamental difference between marketing and advertising, they have very clearly defined advertising for First Amendment analysis.  The disciplinary committee never addressed the standard they applied in finding the articles to be advertisements.  Further, the panel never provided any case law, scholarship, or analysis in determining that the blog constituted an advertisement as defined by the Supreme Court.  This was especially troubling in light of the fact that there have been two landmark First Amendment cases on this very issue that have been decided recently in the Untied States Supreme Court;  Citizens United v. Federal Election Commission and Sorrell v. IMS Health, Inc..  Equally as troubling was the disciplinary committee’s conclusion that the information disclosed at public trials was somehow confidential.  The decision stated, “Turner articulated a two-pronged test that the information must be both publicly relayed and generally known.  The panel did not find that the two cases cited as examples of violations met that standard.”  First, it is not clear what the disciplinary committee was referring to in that statement.  Secondly, Turner stated that information disclosed publicly during the course of a public trial is by definition “publicly known.”  Again, the disciplinary committee provided no authority, scholarship, nor any analysis on this issue.  Therefore, it is unclear how the committee reached its conclusions.
 
The Three-Judge Panel appeared more determined to address the Fist Amendment issue than was the disciplinary committee.  In fact, the Three-Judge Panel was very troubled by the Bar’s position with respect to the allegation that Mr. Hunter committed an ethical violation by discussing elements of cases that became known at public trials.  This was very disconcerting for the Bar as they felt the alleged Rule 1.6 violation was the strongest part of their case.  Rodney Smolla attacked this alleged violation head on and in his opening remarks stated, “Every American lawyer has a First Amendment right, at the conclusion of a trial, to publicly read a transcript of that proceeding or discuss the proceeding, whether it is in a law school forum, a CLE, or on Fox News or CNN.”  He further argued that an “open public courtroom is no longer subject to Rule 1.6.  Period.”  He argued that “with very rare exceptions, we do not have ‘secret’ trials in this country.”  This argument seemed to resonate with the panel as the Judges continually asked whether a lawyer could discuss a case in which he or she was involved at a seminar, CLE, or some other academic or educational venue.  In fact, Judge Swersky appeared to take issue with Bar counsel continuing to argue that Hunter disclosed information regarding his clients’ cases by asking, “Isn’t it true though that Mr. Hunter did not “disclose” the information but that the information was disclosed during the course of the trials?”  Bar counsel then had to give a strained definition of the term “disclosure.”  With respect to whether a disclaimer was required, Smolla first argued that the blog was non-commercial speech and therefore not subject to regulation by the state.  He then argued that the articles written by Mr. Hunter on his blog were not inherently misleading.  Finally he argued that Mr. Hunter had offered an alternate disclaimer which should have taken all of the oxygen out of the room and quelled any concerns the Bar could have possibly had with his blog.  The alternate disclaimer read,

          “This Week In Richmond Criminal Defense is a blog written by Horace F.
Hunter, founder and owner of Hunter & Lipton, PC.  The blog contains articles written by him which focus on issues relevant to the criminal
justice system.  To the extent that the articles discuss cases in which
Horace F. Hunter was personally involved as counsel, they are not intended to predict a similar outcome in future cases.”

Judge Melvin inquired as to whether the parties had tried to reach an agreement on the language of a disclaimer.  The parties acknowledged that there had been talks, but no agreement could be reached.  The Panel decided that a disclaimer would be required and Judge Melvin dictated a two-sentence disclaimer: “Case results depend upon a variety of factors unique to each case.  Case results do not predict similar results in any future case.”  The Panel did not require any other language or conditions mandated by Rule 7.2(a).

  The case will now go to the Virginia Supreme Court where the issues w ill again be briefed and argued.  The case continues to garner attention from lawyers and bloggers across the country.

On October 18, 2011, a panel of the Third District Disciplinary Committee sided with the Virginia State Bar and found that the First Amendment did not apply to a Richmond, Virginia attorney who actively blogged about cases in which he was personally involved as counsel.  In what was a highly publicized and highly contentious case between Horace F. Hunter and the Virginia State Bar, the panel’s decision promises to create a great deal of debate and controversy amongst attorneys nationwide.

The case arose out of an investigation by the Bar into a blog written by Horace F. Hunter of the law firm of Hunter & Lipton, PC.  The law firm maintains a website and the website hosts a blog entitled “This Week In Richmond Criminal Defense.”  This Week In Richmond Criminal Defense consists of articles written by Hunter and involve topics relevant to the criminal justice system and, on their face, are news and commentary.  The problem for the Bar was that they considered the blog advertisement and wanted Hunter to put a disclaimer on his blog identifying it as an advertisement.  Hunter took the position that the actual content of the speech in question, ranging from articles criticizing Attorney General Alberto Gonzalez for the firing of eight United States Attorneys, to descriptions of the content and operation of state and federal law, such as the elements of a criminal prosecution under the federal Racketeering Influenced and Corrupt Organizations Practices Act, to descriptions, sometimes editorial commentary, of the outcomes of judicial proceedings in state and federal courts, clearly falls within the core definition of political Speech protected by the First Amendment.  The Bar took the position that because he was writing articles about his own cases, Hunter had created a de facto advertisement and the rules governing attorney advertising applied to Hunter’s Blog.  The Bar never provided any controlling authority to support its contention that the blog was a de facto advertisement in spite of the fact that Hunter provided the Bar with ample authority supporting his contention that the content of the blog was absolutely protected political speech.  In fact, Hunter provided the Bar with United States Supreme Court cases that have long held that there is nothing of more public concern than the government’s conduct of criminal trials; “There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment….the judicial system, and in particular our criminal justice courts, play a vital part in a democratic state, and the public has a legitimate interest in their operations.”  Gintile v. State Bar of Nevada.  In spite of the efforts of Hunter to work out a compromise disclaimer that would have alleviated the concerns of the Bar as well as maintained the integrity of the blog without having to identify it as an advertisement, the Bar refused to make any concessions.

Ultimately, Hunter refused to add a disclaimer to his blog identifying it as an advertisement and the Bar filed formal charges of misconduct.  After receiving the charges of misconduct, Hunter immediately sued the Bar in the United States District Court for the Eastern District of Virginia seeking injunctive relief from the disciplinary action.  Judge John A. Gibney, Jr. dismissed the suit on the abstention doctrine and did not address the First Amendment issue.  His ruling stated that Hunter would have ample opportunity to present the First Amendment issue in the Bar proceeding and although the federal courts have jurisdiction, it would be inappropriate to intervene in an ongoing state judicial proceedings.

Hunter eventually hired Rodney Smolla, one of the most preeminent First Amendment scholars in the county, to assist in the preparation of his case.  Smolla filed a 31 page brief citing numerous cases that rejected the Bar’s position that the speech in question was commercial speech and therefore deserving of less First Amendment protection.  In a stunning reversal, the Bar shifted the focus of its case from the failure of Hunter to put a disclaimer on his blog to his failure to obtain client consent prior to writing articles regarding the trial of their cases.  It appears that the Bar realized that their position was tenuous on the Fist Amendment issue and felt that the failure of Hunter to get his clients’ consent would resonate more with the disciplinary panel.  The problem for the Bar on this issue was that there was a very recent case, Turner v. Commonwealth, that rejected that position out right.  The Bar argued that the case in question was not binding upon the panel and the panel could distinguish it from the facts of this case.

After a full day of testimony and argument, the panel sided with the Virginia State Bar.  It is a somewhat bizarre finding because their written decision makes no mention of any of the First Amendment authority cited by Hunter in this case.  In fact, the written decision simply states “the panel found no difference between marketing and advertising as defined in Rule 7.2.”  This was a very curious statement because the Supreme Court of the United States has not only found a fundamental difference between marketing and advertising, they have very clearly defined advertising for First Amendment analysis.  The panel never addressed the standard they applied in finding the articles to be advertisements.  Furthermore, the panel never provided any case law, scholarship, or analysis in its determination that the blog constituted an advertisement as defined by the Supreme Court.  This is especially troubling in light of the fact that there have been two landmark First Amendment cases on this very issue that have been decided recently in the Untied States Supreme Court;  Citizens United v. Federal Election Commission and Sorrell v. IMS Health, Inc..  Equally as troubling was the panel’s conclusion that the information disclosed at public trials was somehow confidential.  The decision stated, “Turner articulated a two-pronged test that the information must be both publicly relayed and generally known.  The panel did not find that the two cases cited as examples of violations met that standard.”  First, it is not clear what the panel is referring to in that statement.  Secondly, Turner stated that information disclosed publicly during the course of a public trial is by definition “publicly known.”  Again, the panel provided no authority, scholarship, nor any analysis on this issue.  Therefore, it is unclear how the panel reached its conclusions. 

  The case will now go to a three-judge circuit court panel where the issues will again be briefed and argued.  The case continues to garner attention from lawyers and bloggers across the country.

At issue in the case is whether a disclaimer is required on “This Week in Richmond Criminal Defense,” a blog written by Hunter and published as part of the News section of the Hunter & Lipton PC law firm website (www.hunterlipton.com).

In July 2010, the Virginia State Bar requested that Hunter post the disclaimer required for lawyer advertisements on his blog. Hunter responded by asserting that the blog was not an advertisement, but news and commentary and, as such, no disclaimer was required. He further asserted that the blog is protected by the First Amendment.

The two sides failed to reach an agreement and the Bar instituted formal charges against Hunter alleging, among other things, that his blog did not meet the requirements of the Rules of Professional conduct with respect to lawyer advertising.

“Adding Smolla to my team was a strategic move because of his expertise and the fact that this case has extraordinary implications with respect to the government’s ability to regulate the content of blogs,” Hunter said. “As more individuals begin to blog, significant questions arise as to what constitutes the ‘media’ and who exactly are considered ‘journalists’. This case could set a precedent for how blogs are defined in the future.” 
Rodney Smolla whose legal career has spanned more than thirty years, is a nationally recognized scholar, teacher, advocate and writer, and is one of America’s foremost experts on issues relating to freedom of speech, academic freedom and freedom of the press.  Smolla is also a frequent media commentator in newspaper, magazine and Internet news stories. In addition to writing pieces for the New York Times Book Review, he is as regular contributor to the on-line magazines Slate.com and The Huffington Post.

About Hunter & Lipton PC

Hunter & Lipton PC is a law firm based in Richmond, Virginia that focuses its practice primarily in the area of criminal defense.  The firm also publishes This Week in Criminal Law Defense, a blog dedicated to discussion of contemporary issues in criminal law.  For more information, contact Horace F. Hunter, Esq. (804) 780-1235 or email hhunter@hunterlipton.com.

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About Rodney A. Smolla

Rodney A. is currently the president of Furman University, and previously served as the Dean of the law schools at Washington & Lee and The University of Richmond School of Law.  He has authored several books on First Amendment issues including Free Speech in an Open Society (Alfred A. Knopf, 1992), Jerry Falwell v. Larry Flynt: The First Amendment on Trial (St. Martin’s Press, 1988) and Deliberate Intent (Crown Publishers, 1999).  His latest book, The Constitution Goes to College, (New York University Press, 2011) describes the constitutional principles and ideas that have shaped American higher education. Smolla is also a frequent media commentator in newspaper, magazine and Internet news stories. In addition to writing pieces for the New York Times Book Review, he is as regular contributor to the on-line magazines Slate.com and The Huffington Post.

    This case began when an immigrant hotel maid gave a stirring account of having been sexually brutalized by one of the most powerful men in the world.  The case had an almost poetic ring to it when we witnessed Strauss-Kahn being paraded in hand cuffs before the world in the “perp walk” and we exalted in the idea that neither fame nor fortune could insulate him from what could only be his just rewards, a prison cell at Rikers Island.  To make matters worse, the judge in the case appeared to triumph in her own virtue as she denied him bail.  Many commentators talked about how he should be forced to stay in jail until trial just like any other common criminal and that his money and power could not help him escape what he did too this poor woman.  He was all but tried and convicted before a funny thing happened, the facts started to come out.

    According to documents obtained by The New York Times, the prosecutors in the case ultimately conceded that none of the evidence established force or the lack of consent and the case rested entirely on the testimony of the woman.  And, the problem of course with the case resting entirely on her credibility is that the prosecutors in the case no longer believed her.  For starters, Mrs. Diallo’s account of what happened during and after the alleged assault began to develop inconsistencies. Even more troubling to prosecutors was what they said was a “pattern of untruthfulness” about her past.  That included a convincingly delivered story of being gang raped by soldiers in her native Guinea; she later acknowledged that she had fabricated the story, and prosecutors characterized her ability to recount a fictionalized sexual assault with complete conviction as being “fatal” to her credibility.  Another issue was that she had denied that she was interested in making money from the case, despite a recorded conversation that prosecutors said captured her discussing just that with her fiancé, a detainee in an immigration jail in Arizona, shortly after the encounter in the hotel.

    Of course, all of this begs the question of why not investigate prior to bringing charges, not after?  Even though he was a flight risk, authorities should have waited to gather more evidence before dragging him into jail and having him publicly paraded in front of the world like a show animal. 

  The media also deserves to be criticized with its culture of guilty until proven innocent.  The coverage in this case was overwhelming against Strauss-Kahn and all but had him convicted of these charges.  Now that more of the “facts” have come out, it is the duty of the media to highlight those facts with the same vigor with which they originally reported the story.  It is almost as if the media is disappointed that there will not be a trial; that their made for television drama, with the hotel maid as the heroine and the powerful and wealthy I.M.F chief as the villain, turned out to be nothing more than a he said she said with the “he” being sexually deviant and the “she” being a very convincing liar.

    This case demonstrates, once again, that simply being accused of a crime does not make you guilty.  It is important for all of us to live up to the lofty ideals that we have of our criminal justice system and that ALL are innocent until proven guilty.

Horace F. Hunter, Esq.

Vacationers always start out with the best intentions.  You book your ticket, pack your bags and head to far away places in search of rest and relaxation.  However, recent news of crimes involving American tourists traveling abroad—whether they be victim or perpetrator—makes criminal law even more challenging. 
The growing popularity of television shows like “Why I Ran” or “Locked Up Abroad” can shed light on the benefits of the American judicial system and the fact that those same rights are not often afforded to citizens once they cross borders.  Outcomes of the some of the more prominent cases have differed drastically:

Aruba – Natalee Holloway and Robyn Gardner

Natalee Holloway, a high school senior went missing while vacationing with her class in Aruba.  Her body has never been found.  The primary suspects in her case locals Joran van der Sloot and brothers Deepak and Satish Kalpoe were arrested on various charges including suspicion of involvement in her disappearance. Due to lack of evidence the three men were released without charge after each arrest. 
Although never tried or convicted in the case, Joran Van Der Sloot is currently awaiting trial in Peru for first-degree murder and robbery of Stephany Tatiana Flores Ramírez, who died in Lima, exactly five years after Holloway’s disappearance. 
More recently, Robyn Gardner ‘s disappeared on the island and is believed to be the victim of a crime committed by an American man she met online and with whom she traveled to Aruba.  Gary Giordano, the man now suspected in the disappearance of Ms. Gardner has been held by Aruban authorities after his accounts to police led them to increasingly suspect him in her death.

Italy – Amanda Knox

Amanda Knox, an American student studying abroad in Italy was convicted of murdering British university exchange student Meredith Kercher.  Evidence proved that Kercher was sexually assaulted and stabbed, and that property belonging to her was stolen.  The case brought chilling reality to crime in an educational setting.  Knox’s case received international news coverage and she was sentenced to 26 years.  It is anticipated that her appeal will end later this year. 

Iran – Josh Fattal, Shane Bauer and Sarah Shourd

Three United States citizens including two men and one woman were traveling along the Iraq/Iran border were arrested and detained for spying.  The three alleged that they were hiking.  Josh Fattal and Shane Bauer remain in Iranian custody and are awaiting the outcome of a trial which is expected to be handed down in the coming weeks.  Sarah Shourd was released in September 2010 for medical reasons, returning to the United States after 410 days of solitary confinement.  She remains a defendant in the case and is being tried in absentia.

These examples represent a cross-section of destinations from the Caribbean to Europe to the Middle East that have received International attention.  It is important to note that many more Americans are arrested and detained abroad annually for crimes of equal or lesser severity.  It is important to be aware of how venturing abroad can create complicated legal matters for you. 

Crime Crosses All Borders

There are virtually no countries that are without crime including the United States.  In many countries, American tourists are targeted due to perceived wealth, language barriers and their tendency to congregate in certain areas along with their general unfamiliarity with their surroundings.  Whether it is theft of valuables, assaults or even murder, tourists should be on alert when traveling.  Be sure to read travel advisories issued by the U.S. State Department before traveling and to let friends and relatives know your travel plans and how to contact you in case of emergency.

All Law are Not Created Equal

Vacationers should observe local customs and laws of each locale that you visit because authorities may issue arrests for conduct that is perfectly legal in the United States but no so at your destination.  Do your research before you travel and try to stay out of the murky waters.
You May Be Detained At Length If Arrested Abroad
If you are arrested detention times will differ based on your locale, as will your access to your personal articles and contacts.  You may also find yourself without the funds to post bail and in many cases may not have immediate access to legal counsel.  Arrests abroad may cause you to lose your travel privileges, result in lost time from work or a loss in income, and may seriously impact your family financially.

Legal Counsel is Important

Once a crime is committed abroad, international relations and criminal law intersect creating a more complex band of issues.  It is important to have competent counsel who understands all of the issues before you in order to you with proper legal assistance.

Jurisdiction Matters

No two cases are alike and the outcome of your case very much depends on when and where the crimes were allegedly committed and which charges can be effectively tried.  Cases that appear the same on the surface may be quite different based on a number of things including the defendants access to good legal representation, the strength of the evidence presented, the jury selection process and the presence of cameras in the courtroom.  Penalties will also vary depending on the law in the jurisdiction so two defendants charged with similar crimes sometimes in the same jurisdiction may have very different outcomes in their cases. 

Prosecutors do not typically try cases they do not feel that they can win

This does not mean that they will always win.  Prosecutors may seek to present a flawless case, but criminal defense attorneys do the same.  The outcome of a trial is always left up to the judge or a jury.

Extensive trial coverage is not typically seen by juries or judges

Some jurisdictions allow cameras in the courtroom and when cases are televised and broadcast nationally, they provide the public with an eye into the proceedings.  Public sentiment can grow exponentially but whether it affects the outcome of a trial is unknown.  Many judges will provide explicit instructions to jurors to avoid media coverage including watching television, reading newspaper, visiting websites and using social media.  Jurors in many cases are sequestered.  During the course of a trial they are without cellphones and other electronic devices and are asked to focus exclusively on the trial before them. 

Legal Standards are Important to Keep in Mind

There are legal standards that must be met before the conviction stage.  Civil cases which involve non-criminal matters have a preponderance of the evidence standard which means that it is more likely than not that the judge or jury can infer that a defendant caused some harm to the plaintiff.  In a criminal case, the standard is raised for a number of reasons.  A criminal conviction will typically result in some jail time where a defendant loses his or her freedom and in some cases their lives.  The prosecution must prove beyond a reasonable doubt that a criminal defendant is guilty in order for a conviction to be in order.

Evidence must be admissible

Contrary to public perception, all evidence collected in a case is not presented in a case or determined to be admissible.  Many times evidence may be excluded from a trial due to a number of factors including errors in its collection, its prejudicial nature or its relevance.  Issues and circumstances that the general public may feel are indicative of guilt may not hold any weight in a court of law.

A defendant is presumed innocent until proven guilty

As we see in cases like this one, meeting that standard is more difficult than the media may reveal and furthermore when a person’s life is at stake, everyday people have to make difficult decisions, legal strategies are employed to protect a defendant’s rights and the burden of proof is on the prosecution to prove the guilt of the defendant, not the defendant to prove that they are not guilty.

Having proper legal representation is critical

The chances of a favorable outcome in any legal matter whether criminal or civil can be improved when a defendant has competent, experienced counsel by their side.  There are virtually no major televised criminal trials where the defendant(s) does not have an established law firm representing their interests, which invariably affects outcomes.

In J.B.D. v. North Carolina, a 13-year-old middle school student was suspected of being involved in a pair of home break-ins.  A uniformed officer took the student out of class to a conference room, where two officers and two school administrators questioned him for 30 to 45 minutes.  The juvenile eventually confessed to the crimes and was subsequently convicted of the crimes.

The Supreme Court reversed the convictions on the grounds that the confession was inadmissible.  Writing for the majority, Justice Sotomayor wrote that a child is more likely to feel pressed by the demands of adult authority figures, especially police officers.

This decision appears to be a commonsense extension of the Miranda decision.  Of course children are more likely to feel coerced in certain circumstances than adults.  Children are still protected by the same Fifth Amendment privilege against self-incrimination as adults and it is good that the Supreme Court recognizes this fact.

The case arose out of the Dinwiddie County Circuit Court where William Bottoms was charged with two counts of construction fraud.  The primary allegation against Mr. Bottoms was that he committed construction fraud with respect to major renovations to the Eleven Oaks Baptist Church in Dinwiddie, Virginia.  The proposed project was to cost $75,000 and Bottoms was paid an advance of $45,000.  After receiving the advance, Bottoms purchased materials, hired laborers, and commenced work on the renovations to the church.  In fact, he completed the roof and the majority of the siding.  Several weeks into the project, the building inspector put a stop work order on the project due to licensing issues with Bottoms’ construction company.  Ultimately the work was not completed and Bottoms did not return the advance.  Subsequently, was charged with construction fraud.

Bottoms originally pleaded guilty to the charges.  However, he subsequently hired Horace Hunter and he moved to withdraw his guilty plea on the basis that he could not be found guilty of construction fraud based on the evidence.  The trial court denied the motion on the basis that the guilty plea had been entered into freely and voluntarily. It did not appear to matter to the trial court that Bottoms had an absolute defense to the charges. The problem for the trial court was that the Virginia Supreme Court expressly rejected the “freely and voluntary” basis as the only basis for withdrawing a plea of guilty.  In fact, the standard is whether there is a reasonable defense to the charges and the motion to withdraw a guilty plea is not made merely for the purpose of delay.  The trial court missed this as did the Court of Appeals.  The Court of Appeals applied the correct standard, however they missed the fact that Bottoms had an absolute defense to the charges.  This was very curious in light of the fact that the defense offered by Bottoms was clearly an absolute defense and the Court never addressed the fact that the trial court used the wrong standard when it denied Bottoms’ motion. 

Fortunately, the Virginia Supreme Court corrected this egregious error and remanded the case back to Dinwiddie Circuit Court.  It is bitter sweet however because the larger question remains of how two courts could have been so wrong on an issue that is very straight forward. 
___________________________________________________________
“This Week In Richmond Criminal Defense is a blog written by Horace F.
Hunter, founder and owner of Hunter & Lipton, PC.  The blog contains articles written by him which focus on issues relevant to the criminal
justice system.  To the extent that the articles discuss cases in which
Horace F. Hunter was personally involved as counsel, they are not intended to predict a similar outcome in future cases.”

The case stemmed from the October 20, 2010 shooting of Brandon Thomas outside the Chicken Box restaurant on East Brooklyn Park Boulevard.  There never appeared to be any motive for the shooting nor did there appear to be any connection between Fogg and the victim.  The defense consistently raised this issue and the defendant continued to maintain his innocence.  When the forensic evidence failed to tie Fogg to the shooting, the attorney for the Commonwealth, Toni Randall, decided to withdraw the charges against him.

What goes unnoticed in a case like this is the fact that a young man had to spend months in jail awaiting trial simply because he was charged with this offense.  It is not as if there was less evidence in the end than there was when they charged him.  This case poses the obvious question, “If this is all the evidence the authorities had, why charge him in the fist place?” This case again shows that you can’t assume that defendants are guilty simply because they are charged.

The case arose out of the Circuit Court for the City of Alexandria and the defendant was tried on an indictment for assault and battery on a police officer.  At the conclusion of the evidence, the attorney for the defendant requested that the trial judge take the case under advisement subject to certain terms and conditions and consider dismissing the charge if the defendant complied with all of the terms and condition.  The trial court held that it did not have the authority to that under the long standing precedent set by the Supreme Court of Virginia which essentially held that the trial judges did not have the authority to take cases under advisement in lieu of conviction.  In a stunning reversal, the Supreme Court reversed itself and found that trial judges do have the authority to take cases under advisement.  The Court was very careful to craft its opinion in such terms that it did not expressly overturn itself and differentiated this case from the previous case.  However, it is clear to all criminal practitioners and trial judges that this ruling opens the door to deferred dispositions in a variety of cases, not just those specifically designated by statute.

This case may signal a sea change in the Supreme Court, a Court generally viewed as very conservative.  This was not a conservative ruling and it will be interesting to see if the Court overturns itself on other controversial ruling in the near future.

This appears to be in response to the criticism the Department received over the railroading of former senator Ted Stevens under the Gonzalez administration.  This is a step in the right direction for a Department that lost a great deal of credibility under 8 years of right wing republican attempts to shape the justice department into an instrument of politics.  There were other instances of the Department playing politics under the Gonzalez administration, the most glaring of which of course was the firing of U.S. Attorneys for refusing to prosecute democrats prior to key elections.  We can only hope this trend to clean up the Department continues.

The trial of this case began with the testimony of the DEA agent who infiltrated the Outlaws Motorcycle Club.  The agent testified that he began this investigation while still an undercover member of the Mongols.  He testified regarding his two and a half year membership in the Outlaws and some of the criminal activity that he witnessed.  The problem for the government was that they were not trying to prosecute the isolated instances of criminal conduct that may have taken place with individual members of the club; they were trying to label the entire organization a criminal enterprise.

After the DEA agent there were a number of witnesses, most of whom were members or former members of the Outlaws, whom testified regarding their own criminal conduct as well as the criminal conduct of others within the organization.  Some of these witnesses attempted to paint a picture of an organization with a specific agenda to conspire to commit crimes.  Again, the problem for the government was that these individuals testified to isolated instances of criminal conduct and it was clear from the testimony that the entire organization was not a criminal enterprise and everyone within the organization was not part of a conspiracy.  Such was the case with William Davey.

William Davey, represented by Horace F. Hunter, was charged with conspiracy to violate RICO, conspiracy to commit an act of violence in aid of racketeering, violence in aid of racketeering, and possession of a firearm in furtherance of crime of violence.  All of theses charges against Mr. Davey arose out of an incident that took place at the Cockades Bar and Grill in Petersburg, Virginia in which a few members of the Outlaws were in a physical confrontation with members of the Desparados.  The problem for the government with respect to Mr. Davey was that he never possessed a firearm, never hit anyone, never aided in the assault of anyone, and it appeared that the Desparados started the fight.  The government attempted to convict Mr. Davey based on his membership in the Outlaws.  They alleged that he conspired to commit several acts of violence but the evidence showed that he, in fact, had not conspired to commit any acts of violence and had not committed any acts of violence.  Even the testimony of the DEA agent and other cooperating witnesses painted a picture of Davey as a quiet person who was not involved in the altercation.  Armed with this information, the government still attempted to prosecute Davey on the theory that even without action, he was part of a conspiracy.  And, the only evidence that he was part of any conspiracy was his membership in the Outlaws.  The obvious problem with this theory by the government is that membership in the American Outlaw Association is not a crime.  The government felt they could get a conviction based on guilt by association.  The government felt that if they could make the Outlaws look like a bunch of bad guys, anyone in the club would get convicted of the charges.  Fortunately for Mr. Davey, the jury saw through the government’s strategy and acquitted him of the charges.

This case demonstrates the government cannot simply go after organizations as a whole and think they can convict each and every member.  If the government is going to charge individual members of an organization then they need to prove the individuals committed crimes.  Hopefully, gone are the days when the government can just show up and charge conspiracy to violate RICO and expect to get a conviction based simply on membership in an organization.  Even if it is an organization that may not be popular politically, criminal prosecution are based on individual criminal conduct and no citizen should ever be guilty by association.

This case began as a 27 defendant case charged in a 50 page indictment charging violations o 12 federal offenses.  The indictment alleged that the Outlaws Motorcycle Club was a national criminal enterprise and the defendants were brought from as far away as South Carolina, Maine, and Wisconsin.  Almost all of the defendants were charged in Count I with Conspiracy to violate RICO.  Before discussing the facts of the case, it is important to understand RICO and how it is that individuals with little or nor ties to criminal conduct can be charged under this statute.

The Racketeering Influenced and Corrupt Organizations Act (RICO) was passed in the 1970’s in response to organized crime and the use of legitimate organizations, such as political parties and unions, for criminal purposes.  Specifically, a violation of RICO occurs when an individual is either associated with or employed by an enterprise in which two or more individuals reach an agreement to acquire or maintain an interest in or control of an enterprise through a pattern of racketeering activities.  Racketeering activity is defined by the statute and includes such crimes as bribery, extortion, and crimes of violence.  When someone is charged with conspiracy to violate RICO, the government need only prove that a person agreed to participate, directly or indirectly, in the affairs of an enterprise, the objective of the enterprise being a pattern of racketeering.  The government must prove that the individual participated in some manner, however slight, in the overall objective of the conspiracy and that the conspiracy itself involved, or would have involved, the commission of two racketeering acts.  However, the government is not necessarily required to prove either that an individual agreed to personally commit two racketeering acts or that the person actually committed two such acts.  Moreover, the government does not have to prove that the racketeering acts were actually committed.  It is the agreement that is punished and the agreement is very loosely defined under RICO.  Therefore, it is very easy for an individual associated with a group or organization who does not participate in criminal conduct to be charged with conspiracy to violate RICO.  The questions then becomes did the person actually conspire to commit a crime and, if not, is there a chance that they can be wrongfully convicted based on their association with others?  In other words, will jury convict an individual based on guilt by association.

In the present case, the challenge facing Mr. Davey was his membership in the Outlaws and the government attempting to convict him in large part on that fact alone.  As stated in the previous article, membership in the Outlaws is not a violation of RICO and one cannot be convicted of any crime based strictly on being a member (terrorist organizations excluded).  However, the government can, and did in this case, use membership in the organization to get into evidence bad acts or other crimes committed by other members of the group so long as the government alleges that the crimes were committed in furtherance of the organization.  This allows the government to poison the jury against a defendant by making him look bad for being in an organization that may have a few bad individuals in it.  Ultimately, this strategy back fired against the government and actually had the effect of demonstrating at trial that William Davey was not like some of the other individuals in the club and he appeared not to have broken any laws.

The case stemmed from a two and a half year investigation of the American Outlaw Association Motorcycle Club.  The club was infiltrated by three undercover DEA agents as well as three FBI informants.  At the time of the infiltration, the DEA agents had been posing as members of the Mongols Motorcycle Club.  The agents befriended members of the Outlaws and were subsequently offered an opportunity to “patch over” into the Outlaws from the Mongols.  This is an important fact because the Outlaws were not the original targets of a federal investigation based on reports of illegal activity.  They were first given the opportunity to become Outlaws, then they began looking for illegal activity.  This certainly explains some of the actions the agents. Once given the opportunity to join the Outlaws, the DEA agents recruited three confidential informants already working with the FBI and they started a chapter of the American Outlaw Association in Petersburg, Virginia.

Once they became members of the Outlaws, the agents began gathering evidence and building cases against individuals within the organization.  The cases the agents were building were for a variety of crimes including drug distribution and illegal gaming.  However, early in the investigation the decision was made (probably by senior level officials within the Justice Department) to not simply prosecute individuals within the organization for specific criminal conduct, but to attempt to label the entire organization a criminal enterprise and prosecute as many members as possible under RICO and conspiracy charges.  The problem with this decision was it changed the entire dynamic of the case.  Now, the government did not simply have to find individuals within the organization committing criminal offenses, they could look to prosecute individuals for simply being members of the organization based on the theory of conspiracy.  The problem for the government was that membership alone in the American Outlaw Association is not a crime.