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His presentation was entitled  Recent Changes in the Grievance Procedure and How They Will Affect Your Law Practice. Over 20 attorneys and busi- ness professionals were in attendance. For more information on this event please contact Ms. Arlisia Hawkins, Austin Black Lawyer s Association, at 512- 480-5638 or the Bennett Law Firm at 713.225.6000. Bennett Law Firm Launches  Defend the Doc Blog As anticipated, The Bennett Law Firm began publishing it s medically-focused  Defend the Doc web log in mid-January. Look for new entries to be added in the comings months, especially in regards to the issues of hospital peer review (www.peerreview.org), Medicare and Medicaid. As always, you may also find fur ther pertinent information by viewing the firm s medical site at www.bennettlawfirm.com. Hayes Hearing set for this Wednesday, February 7th in Cameron County Bob Bennett is the acting defense counsel for Pastor Daniel Arthur Hayes in the State of Texas v. Arthur Daniel Hayes. As part of the case s most recent developments, a discovery hearing will be held this Wednesday at the 404th Dis- trict Court, Cameron County, Texas. For the most recent news concerning this case and other BLF criminal cases, please click here. Sherri R. Katz and Natalie N. Fowler write Gag Order article for use in Pastor Hayes case Sherri Katz and Natalie Fowler of The Bennett Law Firm recently composed an article acting as a  primer for fighting against a gag order, specifically from the perspective a defense team responding to the actions of a district attorney. This article was written in light of the Bennett Law Firm s current representation of Pastor Daniel Arthur Hayes of Harlingen, TX. The entire text follows below. For further in formation and case updates, please visit the firm s criminal law page here.  Aggressive Fighting for the Right is the Noblest Sport the World Affords. Theodore Roosevelt  Aggressive Fighting for the Right is the Noblest Sport the World Affords. Theodore Roosevelt THE BENNETT LAW FIRM, P.C. Attorneys and Counselors at Law Bob Bennett speaks at Texas Black Lawyer s Association Mr. Bennett spoke to the Black Lawyer s Association on Wednesday, January, 10 2007, at 12 p.m. at the George Carver Museum in Austin, TX. His presentation was entitled  Recent Changes in the Grievance Procedure and How They Will Affect Your Law Practice. Over 20 attorneys and business professionals were in attendance. For more information on this event please contact Ms. Arlisia Hawkins, Texas Black Lawyer s Association, at 512-480-5638 or the Bennett Law Firm at 713.225.6000. Bennett Law Firm Launches  Defend the Doc Blog As anticipated, The Bennett Law Firm began publishing it s medically-focused  Defend the Doc web log in mid-January. Look for new entries to be added in the comings months, especially in regards to the issues of hospital peer review (www.peerreview.org), medicare and medicaid. As always, you may also find further pertinent information by viewing the firm s medical site at www.bennettlawfirm.com. Hayes Hearing set for this Thursday, February 1st in Cameron County Bob Bennett is the acting defense counsel for Pastor Daniel Arthur Hayes in the State of Texas v. Arthur Daniel Hayes. As part of the case s most recent developments, a discovery hearing will be held this Thursday at the 404th District Court, Cameron County, Texas. For the most recent news concerning this case and other -------------------------------------------------------------------------------- BENNETT LAW FIRM NEWSLETTER Volume I, Issue 3 January 2007 -------------------------------------------------------------------------------- Bob Bennett speaks at Texas Black Lawyer s Association Mr. Bennett spoke to the Black Lawyer s Association on Wednesday, January, 10 2007, at 12 p.m. at the George Carver Museum in Austin, TX. His presentation was entitled  Recent Changes in the Grievance Procedure and How They Will Affect Your Law Practice. Over 20 attorneys and business professionals were in attendance. For more information on this event please contact Ms. Arlisia Hawkins, Texas Black Lawyer s Association, at 512-480-5638 or the Bennett Law Firm at 713.225.6000. Bennett Law Firm Launches  Defend the Doc Blog As anticipated, The Bennett Law Firm began publishing it s medically-focused  Defend the Doc web log in mid-January. Look for new entries to be added in the comings months, especially in regards to the issues of hospital peer review (www.peerreview.org), medicare and medicaid. As always, you may also find further pertinent information by viewing the firm s medical site at www.bennettlawfirm.com. Hayes Hearing set for this Thursday, February 1st in Cameron County Bob Bennett is the acting defense counsel for Pastor Daniel Arthur Hayes in the State of Texas v. Arthur Daniel Hayes. As part of the case s most recent developments, a discovery hearing will be held this Thursday at the 404th District Court, Cameron County, Texas. For the most recent news concerning this case and other BLF criminal cases, please click here. Sherri R. Katz and Natalie N. Fowler write Gag Order article for use in Pastor Hayes case Sherri Katz and Natalie Fowler of The Bennett Law Firm recently composed an article acting as a  primer for fighting against a gag order, specifically from the perspective a defense team responding to the actions of a district attorney. This article was written in light of the Bennett Law Firm s current representation of Pastor Daniel Arthur Hayes of Harlingen, TX. The entire text follows below. For further information and case updates, please visit the firm s criminal law page here. A PRIMER: HOW TO KEEP THE DISTRICT ATTORNEY FROM GAGGING YOU AND YOUR CLIENT USING THE D.A. S BATTLE PLAN TO WIN THE WAR: FIGHTING AGAINST A PROSECUTOR S MOTION FOR A  GAG ORDER By Sherri R. Katz and Natalie N. Fowler The Bennett Law Firm THE BENNETT LAW FIRM, P.C. Attorneys and Counselors at Law The Bennett Law Firm Brief Tuesday, February 13, 2007 - Bob Bennett to speak at Hayes County Bar Association, San Marcus, TX. The Bennett Law Firm, P.C. 515 Louisiana, Suite 200 Houston, Texas 77002 Phone: (713) 225-6000 Fax: (713) 225-6001 A former federal prosecutor, Robert S.  Bob Bennett is Board Certified in Consumer and Commercial Law and is a founding partner of The Bennett Law Firm, P.C. in Houston, Texas. The Bennett Law Firm, P.C. not only specializes in the representation of attorneys and judges in grievance matters, but also the representation of health care professionals in matters before the Texas State Medical Board. Mr. Bennett has authored numerous articles relating to grievance, professional conduct, and health law issues. For copies of articles and additional information see www.bennettlawfirm.com. *If you know of any other individuals (attorneys, doctors, etc) who may wish to receive this newsletter, please contact the firm at the address here. *If you wish to be removed from future mailings, please reply here with the subject line:  UNSUBSCRIBE. Robert S. (Bob) Bennett A former federal prosecutor, Robert S.  Bob Bennett is Board Certified in Consumer and Commercial Law and is a founding partner of The Bennett Law Firm, P.C. in Houston, Texas. LEGAL ARTICLES UPCOMING EVENTS This is a primer for fighting against a gag order. When the client is arrested and the first action of the district attorney is to hold a press conference and spew false and misleading statements, defense counsel may find it necessary to counter the unfair prejudicial effect of the district attorney s public statement. Texas Rules of Disciplinary Conduct Rule 3.07, comment 3, provides:  The existence of  material prejudice normally depends on the circumstances in which a particular statement is made. For example, an otherwise objectionable statement may be excusable if reasonably calculated to counter the unfair prejudicial effect of another public statement. As a defense attorney in Texas, in preparation for a hearing on a prosecutor s motion for a gag order, it is prudent to rely on the Texas District and County Attorneys Association s (TDCAA) manual entitled  Legal Ethics and Texas Criminal Law  Prosecution and Defense, 2006 Edition, by Edward L.  Chip Wilkinson; edited by Diane Burch Beckham, Senior Staff Counsel for the TDCAA. A reading of Ms. Beckham s Editor s Note sets the tone for how a prosecutor should act, i.e., that  the responsibility of prosecuting criminals, announcing  ready for the State, and standing up for crime victims is an awesome burden, one that calls for scrupulously ethical behavior. Editor Beckham likewise champions the efforts of Mr. Wilkinson, stating that he  has become the criminal law ethics expert in Texas, after compiling and digesting thousands of cases, rules and statutes on prosecutor ethics. Ms. Beckham further states that it is the TDCAA s  hope that this book will become the go-to volume for both prosecutors and defense attorneys facing ethical issues in their practice. Thus, using the TDCAA s own manual and expert immediately establishes credibility and prevents the prosecution from demeaning your arguments. If you are quoting from their manual, how can you be wrong? It is also imperative that a defense attorney keep in mind the role of the government prosecutor: the state s interest  is not that it shall win a case, but that justice shall be done. Young v. United States, 481 U.S. 787, 803 (quoting Berger v. United States, 295 U.S. 78, 88 (1935). The words of Justice Sutherland set forth the parameters of ethical conduct for Assistant United States Attorneys in Berger, 295 U.S. 78 (1935), which is still quoted today: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor  indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger at 88. The same applies to any Texas district attorney. Ethics and Publicity in Criminal Trials Chapter Three of the TDCAA s Legal Ethics and Texas Criminal Law clearly sets out the Texas State standard for evaluating the propriety of a gag order against trial participants. The Texas Supreme Court has additionally imposed a higher standard under the Texas Constitution for evaluating the propriety of a gag order. In Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992)(orig. proceeding), the trial court appointed a guardian ad litem to represent juveniles among numerous plaintiffs who had brought civil suit. Davenport was a civil case and addressed the propriety of a gag order against counsel. The Texas Supreme Court ultimately found that the gag order issued by the trial court violated the guarantee of free expression contained in Article I, 8 of the Texas Constitution, which provided broader speech protections than the First Amendment of the United States Constitution. Davenport at 8-9. Under this broader guarantee,  it has been and remains the preference of this court to sanction a speaker after, rather than before, the speech occurs. Id. at 9. Prior restraint on free speech is presumptively unconstitutional under the Texas Constitution and permissible  only when essential to the avoidance of an impending danger. Id. Thus, a gag order will be subject to a higher standard of constitutional scrutiny under the Texas Constitution than under the United States Constitution. Id. at 10. According to the TDCAA manual, under the holding of Davenport, a gag order will withstand constitutional scrutiny only where there are specific findings supported by evidence that: (1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm. Davenport at 10. This Davenport test is also applicable to criminal cases, pursuant to San Antonio Express News v. Roman, 861 S.W.2d 265 (Tex. App.-San Antonio 1993, orig. proceeding). In S.A. Express News, the newspaper sought mandamus to review a trial court order prohibiting the newspaper from publishing the names of two minor witnesses in a criminal trial. The Court of Appeals held that the order violated the constitutional rights of the newspaper under the State Constitution, and that mandamus was the appropriate remedy. Express News at 268. The TDCAA manual further states that in resolving both whether the alleged harm is imminent and irreparable and whether the proposed judicial action is the least restrictive means to prevent that harm, a court must look to the injury asserted, the relief requested, and the underlying evidence. See Ex parte Tucci, 859 S.W.2d 1, 5-6 (Tex. 1993). Speculative testimony of mere fear, apprehension, or the possibilities of harm is not sufficient to establish an  imminent and irreparable injury. See Markel v. World Flight Inc., 938 S.W.2d 74, 79 (Tex. App.-San Antonio, 1996). Rather, there must be clearly established evidence in the record of the media coverage, as well as evidence of the potential and actual threats to the rights of the parties. Markel at 79. It has been a somewhat usual practice in Texas for the government prosecutor to file a State s Motion to Restrict Publicity, which oftentimes is taken almost word for word from In re Houston Chronicle, 64 S.W.3d 103 (Tex. App. 2001). In re Houston Chronicle distinguishes S.A. Express News, supra. The In re Houston Chronicle court refused to extend the Davenport standard to media attacks upon a gag order, which was issued by the trial court after the trial judge grew concerned about the effect the media interviews were having on defendant Andrea Yates right to a fair trial. The State did not request the gag order in Houston Chronicle  it was the trial court s concern which led to the gag order. Yet, oftentimes, the government prosecutor will request that the trial court issue a gag order after the prosecutor s own office has clearly engaged in the questionable pretrial publicity that they then seek to restrict. A defense attorney should be wary of a district attorney that holds a press conference, gives television interviews, and makes comments quoted in local newspapers regarding often prejudicial aspects of your client s character or alleged crime, because after the defense offers a public response to the false statements and accusations leveled against him, the prosecutor may then seek a gag order from the trial court. This amounts to the prosecutor poisoning the air, then filing a motion for a gag order to deny a defendant a chance to respond to false and inflammatory statements and accusations made against him. It is the usual practice for the prosecutor to cite a Press Release issued by defense counsel as the basis for their request for a gag order restricting publicity. This is done by claiming that the defense s press release contains  extrajudicial statements that a reasonable person would expect to be disseminated by means of public communication and that defense counsel knew or reasonably should have known that these statements  will have a substantial likelihood of materially prejudicing an adjudicatory proceeding and thereby violates Rule 3.07 of the Texas Disciplinary Rules of Professional Conduct. See Tex. Disciplinary R. Prof l Conduct 3.07(a), reprinted in Tex. Gov t. Code, tit.2, subtit. G, app. A (Tex. State Bar R. art 10 sec. 9). This claim is easily shown to be unfounded and lacking merit. Examples of what a prosecutor might claim as  prejudicial statements could include: (1) information about your client s awards or accomplishments, including any military service (2) a statement that your client had been attempting to cooperate fully with investigators; (3) a statement that witnesses have provided exculpatory information to the government investigators; (4) if there is evidence of a violation of your client s civil rights, a statement that notice has been sent to the NAACP and the Civil Rights Division of the Department of Justice; and (5) A request that all persons who were treated unfairly or had agreements broken by the district attorney s office should contact your client or his defense counsel. Arguably, all information and statements contained in a press release, as the examples above show, should be accurate, and best if they are already a matter of public record. In addition, statements in a defense press release might be made to show the district attorney what a mess he has made of the investigation and prosecution of your client - to show how he has trampled on your client s civil rights. Accordingly, the information and statements given in the example are well within the limits imposed on attorneys by Rule 3.07. Expert witness testimony should be sought to confirm this defense position. Likewise, a defense attorney should argue that there is no evidence that the statements made in the defense press release, or any statements made by defense counsel for that matter, will materially prejudice an adjudicatory proceeding or the defendant s right to a fair trial. It should be argued that it is absurd that the prosecutor would find the defense press release unfair or prejudicial, especially in light of the misleading and false statements issued by the prosecutor s office, and that the defense press release was issued in direct response to the negative media blitz initiated by the prosecutor and his office in an attempt to stop the prosecutorial madness. It is clear that the goal of any order restricting pretrial publicity is to protect, primarily, a defendant s right to a fair trial. Often, a defendant will not wish the trial court sustain any government motion to restrict publicity. The media is typically the only available outlet for a wrongfully accused defendant to offset the misleading statements made by the prosecutor and to seek defense witnesses. Texas Rules of Disciplinary Conduct: Rule 3.07 and 3.09 Typically, in a prosecutor s motion for a gag order restricting publicity, the prosecutor will state, as discussed above, that defense counsel has violated Rule 3.07 of the Texas Rules of Disciplinary Conduct. However, be wary if only one section of the rule, or part of the rule is cited by the prosecutor. Statements made by defense counsel conform to Rule 3.07 by either including: (1) information contained in a public record; (2) information about the conduct of a judicial proceeding; (3) information about matters of public concern; and/or (4) information calculated to counter the unfair prejudicial effect of another public statement. In section (c), the rule provides a list of permitted statements. See Tex. Disciplinary R. Prof l Conduct 3.07(c). Permitted statements include:  the information contained in a public record. See Tex. Disciplinary R. Prof l Conduct 3.07(c)(2). This section of Rule 3.07 can be used to argue, if applicable, that the statements made by defense counsel contain information that is a matter of public record, or could be located by any competent investigative reporter. Also, comment 1 of Rule 3.07 states that although a lawyer s right to free speech is subordinate to the constitutional requirements of a fair trial, [t]here are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy. See Tex. Disciplinary R. Prof l Conduct 3.07 cmt. 1. Because of a prosecutor s vast discretion at all stages of the criminal process, the public has an interest in its responsible exercise. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1036 (1991). In Gentile, the Supreme Court held that an attorney who held a press conference after his client was indicted on criminal charges did not violate a Nevada Supreme Court rule prohibiting lawyers from making extrajudicial statements to the press that he knew or reasonably should have known had a substantial likelihood of materially prejudicing adjudicative proceedings. Gentile at 1036. In Gentile, the Court stated, an attorney may take reasonable steps to defend a client s reputation and reduce the adverse consequences of indictment, especially in the face of prosecution deemed unjust or commenced with improper motives. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried. Gentile, at 1043 (emphasis added). Justice Kennedy acknowledged that  public awareness and criticism have an even greater importance where& the criticism questions the judgment of an elected public prosecutor. Gentile at 1035-36. Statements by defense counsel regarding the motives behind a prosecutor s tactics, including an excessively high bond recommendation, improper investigative procedures used on witnesses, and possible civil rights violations, are certainly matters of public concern. Defense counsel s statements regarding these types of issues are classic examples of political speech in that they are critical of the government and its officials.  Speech critical of the exercise of the state s power lies at the very center of the First Amendment. Gentile at 1034. Do you have a corrupt district attorney and an office that needs to be investigated? Whether corrupt or not, this is potentially a matter of great public concern, and should be freely debated. Most importantly, comment 3 of Rule 3.07 states that  . . . an otherwise objectionable statement may be excusable if reasonably calculated to counter the unfair prejudicial effect of another public statement. See Tex. Disciplinary R. Prof l Conduct 3.07 cmt. 3. As noted above, if statements made by defense counsel are in direct response to the statements made to the media by the prosecution, or are an attempt by defense counsel to educate the prosecutor about ethical violations or unfair investigative tactics, they are arguably within the bounds of Rule 3.07. The district attorney and his office conceivably could release numerous statements reported by the media that are littered with misrepresentations and innuendos. These reports will likely cast your client in a false light. Free access to the press is sometimes the only way your client can counter the unfair prejudicial effect of the prosecutor s statements and attempt to locate witnesses who have suffered a similar fate at the hands of the prosecutor, to try and bring an end to this miscarriage of justice. If the media is cut off, the public is cut off. If applicable to your situation, make the argument that the district attorney s office has violated Rule 3.07 of the Texas Rules of Disciplinary Conduct by providing numerous false statements and misrepresentations to newspaper and television reporters. Review all television news broadcasts carefully, and make a transcript of what the reporter and any person interviewed says. Attach these media reports and newspaper articles to your response to the prosecutor s motion requesting a gag order. Make the argument that the statements given by the prosecutor are  extrajudicial statements that a reasonable person would expect to be disseminated by means of public communication that they knew or should have known would  have a substantial likelihood of materially prejudicing an adjudicatory proceedi