The Ethics and Constitutionality of Gag Orders

The disappearance (and presumed murder) of Jennifer Dulos caused a sensation in Connecticut. The main suspect was Jennifer’s husband and the husband’s mistress. Although a body was never found, the husband was arrested and charged with tampering with evidence-based on video showing him leaving with items from the house presumably related to the disappearance. Before the trial, there were numerous extrajudicial statements made to the press from both sides. The state filed a motion for a gag order to prevent fall sides from making extrajudicial statements.

In State v. Dulos, 2019 WL 4898712 (Conn. 2019), the trial judge entered a gag order in the case against the prosecutor, the defendant, attorney for the defendant, all potential witnesses, police agencies that have been investigating the case. The judge in this case does an excellent job of setting out the tension between the First Amendment right to free speech and the defendant’s right to a fair trial. The U.S. Supreme Court in Sheppard v. Maxwell, 86 U.S. 333 (1966), held that a defendant’s due process rights were violated where the trial itself was conducted in a “carnival atmosphere” in the courtroom and the pre-trial publicity that the case received. The Court chastised the trial judge for failing to take steps to protect the defendant from the prejudicial impact of these statements. As an aside, I highly recommend that you Google the Sheppard case if you do not know about it. On the other hand, the participants in the case have a First Amendment right to speak. In the case Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), the Supreme Court held that a lawyer could be restricted from making extrajudicial statements that had a “substantial likelihood of material prejudice” to an on-going case without violating the attorney’s First Amendment rights. In subsequent cases, courts have defined “substantial likelihood of prejudice” to include: comments likely to influence the actual outcome of the trial, and comments that are likely to prejudice the jury venire.

It is important to note that the ethical obligation of lawyers with regard to extrajudicial statements tracks the Gentile standard. ABA Model Rule of Professional Conduct 3.6(a) (the Mississippi Rule of Professional Conduct is identical) prohibits a lawyer from making statements that would be publicly disseminated if they would “have a substantial likelihood of materially prejudicing an adjudicative proceeding.” Thus, the ethical standard and the constitutional standard are consistent.

The judge in Dulos does an excellent job of struggling with the tensions between the Defendant’s right to a fair trial and the right of those involved in the case to speak. The gag order was appealed to the Connecticut Supreme Court which spent over an hour questioning the state and Dulos’ attorney on the constitutionality of the gag order. Ultimately, however, the Connecticut Supreme Court dismissed the appeal without opinion because Dulos committed suicide. The oral argument can be heard here.

Gag orders present an interesting intersection of constitutional law and legal ethics. How broad can they constitutionally be? Can they only bind lawyers and not parties? Is it appropriate for a gag order to be as broad as it was in this case? If the gag order is meant to protect the defendant’s right to a fair trial, should the defendant be able to waive that right to avoid the gag order?