In re: Proud Boys: To Speak or Not -- A Conundrum


The so-called Proud Boys trial has finally started. A jury of twelve and three alternatives heard a half day of evidence last week. This week, the Government will present as many as a dozen more witnesses. In the weeks to come, a jury will hear evidence about the extent to which, if at all, the five defendants on trial planned to use force or otherwise planned to disrupt the certification of electoral college votes by Congress on January 6, 2021. I represent one of the defendants, Joe Biggs.

            How much, if anything at all, can I say about the ongoing proceedings?

            I note first, an obvious, but immaterial truth: the trial is not about the Proud Boys at all. The organization is not on trial. Five defendants are: Enrique Tarrio, Ethan Nordean, Zachary Rehl, Dominic Pezzola and, my client, Joe Biggs. All were members of the Proud Boys on January 6, 2021. All face serious charges. These five men stand trial. They stand trial for their actions as leaders of the Proud Boys. Drawing a distinction between them and the organization to which they belonged is what lawyers like to call a distinction without a difference.

            It’s the sort of fiction on which legal proceedings often hang.

            Here’s another conundrum presented by the case. As a lawyer engaged in the case, I cannot say things out of court that will be disseminated by “means of mass public communication and will create a serious and imminent threat of material prejudice to the proceeding.” That’s enshrined in Rule 3.6 of the Rules of Professional Conduct governing the conduct of lawyers in the District of Columbia, where this case is being tried. The commentary to the rule, a note explaining what the rule might mean in practice, reads as follows: “It is difficult to strike a proper balance between protecting the right to a fair trial and safeguarding the right of free expression, which are both guaranteed by the Constitution. On one hand, publicity should not be allowed to influence the fair administration of justice. On the other hand, litigants have a right to present their side of a dispute to the public, and the public has an interest in receiving information about matters that are in litigation. Often a lawyer involved in the litigation is in the best position to assist in furthering these legitimate objectives. No body of rules can simultaneously satisfy all interests of fair trial and all those of free expression.”

            A classic example of violations of the rule are broadcasting from the courthouse steps information a lawyer knows is not admissible as evidence. But, given the law, what is the harm in that?

            Judges instruct juries in all cases to avoid the media, and not to read or listen to anything about the case on which they are sitting. The jury in this case was selected as the House Select Committee on January 6 released its report. It’s difficult to imagine a person with eyes and ears not seeing or hearing about the event, especially in D.C., a company town where the business is government. But, as the law says, a properly instructed jury is presumed to follow the law.

            A presumption is really a default assumption. You begin consideration of an issue by explicitly applying a factual assumption Thus, in the case of a jury, it is assumed that jurors will and do follow a judge’s instructions. It is a rebuttable presumption that can only be overcome by evidence that application of the assumption is unwarranted. Thus, in the Proud Boys trial, jurors are presumed not to read, see or listen to any coverage of the trial. They are to decide the case based solely on the facts and evidence presented in court.

            If we truly believe this, then why the need for Rule 3.6? What harm would come were I to let my hair down – and there is plenty of hair there – and stand on the courthouse steps to defend my clients in the court of public opinion? Jurors are presumed to follow the law, aren’t they? So let me speak the truth as I see it, without fear of judicial consequences.

            In some jurisdictions, but not in D.C., there is an exception to the blanket prohibition expressed in Rule 3.6 – lawyers are permitted to rebut negative pre-trial publicity that they did not themselves generate. Call my client an insurrectionist, and I might respond with a defense. What would happen if I responded aggressively to media coverage just now, when the courthouse is crawling with reporters looking for a scoop?

            Thus far, I’ve not crossed that line. 

            I close noting the following. The jury has been instructed to avoid the press. I am seemingly enjoined from speaking, but application of that rule makes no sense. If jurors are presumed to follow the law, then what would be the harm in speaking? Is it the risk that a juror might break the rule, and prove the presumption to be another of the silly fictions with which the law is riddled?

            I note this tension without having decided how it applies concretely in the Biggs case. If my comments on the case seem cryptic, you now know why. The safe course is merely to report on what happens in the courtroom in open court, without interpretive gloss. Even that will be too much for those who opt for complete silence, but I don’t think the rule mandates silence. Neither does the commentary to the Rule.

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