In the case of the People v. Antwan Odom, the District Attorney wants the defense attorney to shut up -- at least when it comes talking to reporters -- and the defense attorney wants the DA disqualified from the case.
In other words, the case of the People v. Antwan Odom has been reduced to two attorneys squabbling about what happens outside the courtroom.
The attorney vs. attorney dispute dates back to May 3 when Odom's attorney Frank Housh told reporters that he would defend his client by trying to show jurors that the fellow student Odom allegedly stabbed on Ross Street on Aug. 4.
In court on May 3, Housh said he intended to file a motion to get evidence introduced, in order to mount a self-defense claim, that impeached the character of Ray Leach, the local football star Odom allegedly cut with a knife multiple times, so outside of court, reporters asked him to clarify his motion.
"The fact that Ray Leach is known in the community to be a violent person, to be a confrontational person, who confronted (Odom) -- by the prosecution's own admission -- he was the first aggressor," Housh said outside of court on May 3. "He went to my client's house and called him out and beat him into unconsciousness.
"So, under those circumstances, to say, when the prosecution is admitting that he was the first aggressor, to say that his history of violence and intimidation is irrelevant is simply absurd. We should be able to bring that up because it goes to the circumstance of his justification."
District Attorney Lawrence Friedman included the quote in a May 8 filing with the court requesting a gag order on both attorneys in the case.
In court today, Housh also revealed that Friedman filed a grievance against Housh with the state courts for "unprofessional conduct."
"Now I feel there is a parallel prosecution by the elected District Attorney of me and my client," Housh said.
He said that raises a sufficient conflict of interest that Friedman should be disqualified from continuing as the prosecutor on the case.
That motion was continued until Odom's next court appearance on July 2.
Friedman, according to court discussions today, filed a one-sentence objection to the motion for disqualification.
Today, Friedman complained to Judge Charles Zambito that Housh was trying to get him disqualified from the case for following through on his ethical obligation to file a grievance over what he saw as unprofessional conduct.
Friedman said that as far as he knows nobody is prosecuting Housh and that he is not prosecuting Housh by following his "ethical obligation to report ethical misconduct."
"He says I'm seeking his disbarment," Friedman said. "I'm not seeking his disbarment. I followed through on the ethical obligation I have. All I wish to do is make sure he is able to remain professional and does nothing to violate professional conduct."
In his filing with the court, Friedman asserted that Housh's statements about Leach violated the rules of professional conduct, specifically the rule that prohibits attorneys from making statements could prejudice a jury, including statements relating to the character or credibility of a witness.
In the Order to Show Cause, Zambito ordered Housh and Friedman to show why they shouldn't be barred from "making statements to the media regarding anything involving this case."
The Batavian has filed a memo with Zambito objecting to the order. While judges in criminal cases can restrict what attorneys can say to the media, such orders, according to prior case law, can't be overly broad; can't apply to parties other than the attorneys in the case; and should consider how much time before the trial the statements are made.
In addition, both attorneys can use the jury selection process to identify potential jurors who should be disqualified because media exposure has tainted their view of the case.
Gag orders can act, courts have found, as a form of prior restraint (the government censoring speech before the speech is made), which violates the First Amendment.
While cases such as Gentile v. State Bar of Nevada have given courts leeway to restrict speech by attorneys because of their special access to information, in order to issue a gag order, courts have ruled that: a judge must make specific findings; consider less drastic alternatives; and narrowly tailor the order to address identified harm.
(For support of statements about gag orders in this story, see this brief filed by attorneys for the Reporters Committee for Freedom of the Press in another criminal case).
Courts have repeatedly found that a free press is essential to ensure fair trials, as in the 1965 case, Sheppard v. Maxwell.
"A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field," the Supreme Court said in its ruling. "The press does not simply publish information about trials, but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny.’’
In CBS Inc. vs. Young, a case that vacated a gag order, the court found that the newsgathering rights of a free press extend beyond the courtroom to include access to sources and court documents.
Asked to comment on the gag order by Zambito, an attorney for the Reporters Committee for the Freedom of the Press, Sarah Matthews, provided the following statement:
Although courts may restrict what attorneys can say about a case outside the courtroom, it raises First Amendment concerns when courts issue broad gag orders on attorneys that go beyond what the ethics rules require and actually bar any discussion of a case.
Meanwhile, Housh has shown he's fearful of even being seen nodding in the direction of a member of the press since Zambito issued the Order to Show Cause.
A few days after the order was delivered, a reporter ran into Housh at a local restaurant and Housh made it clear he didn't want to be seen talking to the reporter, and today when that reporter entered the courtroom and gave Housh a friendly wave, Housh shook his head as if to say, "don't even wave at me."