UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
October 21, 1985
UNITED STATES OF AMERICA
JOHN A. SHORTER, JR.
The opinion of the court was delivered by: GREENE
Defendant, an attorney appearing pro se, was convicted after a twenty-one day trial of one count of tax evasion and six counts of willful failure to pay income taxes. By motion filed before the verdict was rendered on Count 1, defendant moved for a mistrial as to that count and to vacate the verdict on Counts 2 through 7, on the ground of prosecutorial misconduct.
The jury began its deliberations in this case on October 3, 1985. On October 10, 1985, a partial verdict was returned, finding defendant guilty of six misdemeanor counts of willful failure to pay taxes. Five days later, on October 15, 1985, the jury returned a verdict of guilty on the one remaining count, which charged the felony of willful tax evasion. Defendant's motion is based upon the publication of news articles by the Washington Post on October 4, 1985, and October 11, 1985,
and he claims that the source of the information was the U.S. Attorney's Office.
Defendant's concern focuses on the eleventh and twelfth paragraphs of the article published on October 4, which describe the defendant's 1974 nolo contendere plea to a charge of failing to file a federal income tax return, his 1977 guilty plea to a charge of failure to pay District of Columbia taxes, and a 1968 civil judgment entered against him for unpaid federal taxes. Although all of this information was available on the public record at the time the article was written, it is the Court's conclusion, based upon similarities in wording, that the author of the article relied upon a description of defendant's taxpaying history that was provided by the U.S. Attorney in a press release issued eleven months earlier, on November 1, 1984, on the occasion of defendant's indictment.
Defendant contends that the November 1 press release constitutes a violation of this Court's Local Rule 1-27(c)(3), which provides:
From the time of . . . the filing of an . . . indictment in any criminal matter until the commencement of trial . . ., a lawyer . . . associated with the prosecution . . . shall not release or authorize the release of any extrajudicial statement which a reasonable person would expect to be disseminated by means of public communication, relating to that matter and concerning:
(1) The prior criminal record . . . of the accused . . .
The substance of Local Rule 1-27(c)(3) is identical to that of the ABA Model Code of Professional Responsibility, Disciplinary Rule 7-107(B).
The November 1 press release was issued in the interval between indictment and trial, intended to be disseminated publicly, and contained information about defendant's prior criminal record. On this basis, it would appear to violate both the Local Rules of this Court and the Model Code of Professional Responsibility issued by the American Bar Association. However, when ruling upon a defendant's motion for a mistrial and to vacate the verdicts, this Court's decision does not depend upon the propriety per se of the prosecution's conduct under these rules. In contrast to those bodies whose primary function it is to supervise professional conduct, the Court's principal concern is the likely impact of the disputed news coverage upon the fairness of the criminal proceedings before the Court.
Whether this fair trial issue is described as one of prosecutorial misconduct, as the defendant characterizes it, or as one of prejudicial publicity, as it might also be characterized, the standard governing the motion for a mistrial is the same: is it likely that the fairness of the proceedings has been actually prejudiced by the issuance of the government's press release and the subsequent Washington Post articles? United States v. Hasting, 461 U.S. 499, 510-11, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1982) (prosecutorial misconduct); Murphy v. Florida, 421 U.S. 794, 800, 44 L. Ed. 2d 589, 95 S. Ct. 2031 (1974) (publicity); United States v. DeCoster, 199 U.S. App. D.C. 359, 624 F.2d 196, 227 (D.C. Cir. 1979) (en banc) (opinion of three judges) (same); United States v. Chapin, 169 U.S. App. D.C. 303, 515 F.2d 1274, 1289 (D.C. Cir. 1975) (same).
The jurors themselves are the best source for assessing whether actual prejudice has occurred. See United States v. Haldeman, 181 U.S. App. D.C. 254, 559 F.2d 31, 60 (D.C. Cir. 1976) (defendant is obliged to demonstrate real prejudice to the jury in order to prevail on a fair trial claim and he must normally look to voir dire as the sole source of evidence of prejudice).
At defendant's request, the jurors were polled on the morning of October 15, 1985 (just prior to delivery of their verdict on Count 1) as to whether they had read the two articles in question or had heard about them. In response to the Court's query, two jurors raised their hands and were heard at the bench. One juror indicated that he had seen the headline of one of the articles but could not remember what the headline said,
and that he had no knowledge of the article's contents. The other juror said that she was aware that the case had received news coverage, but had never seen or read any of it. Both jurors stressed that they had avoided learning anything about the case from news reports, in obedience to the Court's instructions. The Court found the responses of these two jurors to be completely credible.
Several other factors at work in this case suggest that it is extremely unlikely that the jury was aware of the disputed press reports.
At the outset of the trial and regularly thereafter, the Court admonished the jury to disregard any accounts of the case that might appear in the news media. On October 4, 1985, the date on which the most troublesome article appeared and when the defendant first brought this matter to the attention of the Court, the jurors again received a strongly worded instruction on their obligation to avoid news reports about the case.
"A crucial assumption underlying [our] system is that juries will follow the instructions given them by the trial judge." Parker v. Randolph, 442 U.S. 62, 73, 60 L. Ed. 2d 713, 99 S. Ct. 2132 (1979). This Court has no indication whatever that this jury -- which demonstrated unusual attentiveness during three weeks of trial, deliberated for six and one-half days thereafter, posed four questions of law to the Court during deliberations, and returned a partial verdict on the fifth day of their deliberations -- was anything less than sincere and responsible in its approach to the case and its obedience to the Court's instructions.
Prejudice from trial publicity is not to be presumed from a record barren of evidence that jurors were actually influenced unless publicity about the case has so pervaded the community as to "utterly corrupt" the trial atmosphere. Dobbert v. Florida, 432 U.S. 282, 303, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977); Murphy v. Florida, 421 U.S. 794, 798, 44 L. Ed. 2d 589, 95 S. Ct. 2031 (1974); United States v. Ehrlichman, 178 U.S. App. D.C. 144, 546 F.2d 910, 916 n.8 (D.C. Cir. 1976). The two articles challenged by the defendant do not suggest that publicity has in any sense "pervaded the proceedings." Murphy v. Florida, supra, 421 U.S. at 799. The few cases in which prejudice has been presumed involved a degree of publicity that was far beyond anything alleged in this case. See, e.g., Rideau v. Louisiana, 373 U.S. 723, 10 L. Ed. 2d 663, 83 S. Ct. 1417 (1963) (defendant's filmed confession broadcast three times by local television station).
Because defendant has not presented any evidence of actual prejudice to his fair trial rights, and has not established that publicity has so pervaded the proceedings as to create actual prejudice, it is this 21st day of October, 1985
ORDERED that defendant's motion be and it is hereby denied; and it is further
ORDERED that sentence shall be imposed on December 2, 1985 at 10:00 a.m. in Courtroom No. 1.