# Zimmermann v. Board of Professional Responsibility > Tennessee Supreme Court · January 23, 1989 · 764 S.W.2d 757 URL: https://www.frixlaw.com/law-library/cases/9679495 ## Case - **Full name:** In Re John ZIMMERMANN, an Attorney Licensed and Admitted to the Practice of Law in Tennessee, Respondent/Appellant, v. BOARD OF PROFESSIONAL RESPONSIBILITY, Appellant - **Court:** Tennessee Supreme Court - **Decided:** January 23, 1989 - **Citations:** 764 S.W.2d 757; 1989 Tenn. LEXIS 14 - **Precedential status:** Published - **Opinion:** Concurring in part by Drowota - **Judges:** O'Brien, Harbison, Fones, Cooper, Drowota - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9679495 ## How later opinions describe it (automated extraction) - discussing In re Rachmiel, 90 N.J. 646, 449 A.2d 505 (1982) ## Opinion text DROWOTA, Justice, concurring and dissenting. I concur in part and dissent in part. I agree with the majority opinion that DR 7-107 does not violate the freedom of expression rights secured by the United States and Tennessee Constitutions as applied in the present case. I disagree with the majority’s finding that Respondent, John Zimmerman, was in technical violation of DR 7-107 and that “the discipline imposed [private reprimand] was adequate and appropriate.” I further disagree with the majority when it states: “We are of the opinion his [Zimmerman’s] comments were not very well considered and, in order to avoid the possibility of violating an accused’s constitutional rights, that it would be prudent for the District Attorney to review his ‘open policy with the media’ in relation to the nature of the comments his staff is encouraged to communicate.” DR 7-107 is entitled “Trial Publicity.” Section (A) deals with extrajudicial statements made during the investigation of a criminal matter, Section (B) deals with extrajudicial statements made prior to trial, Section (D) deals with extrajudicial statements made during trial and Section (E) deals with extrajudicial statements made after trial and prior to the imposition of sentence. In this case we deal only with Sections (B) and (E). 1 Put in its simplest *764 form, the technical violation of DR 7-107(B), as found by the majority in this case, is that a lawyer associated with the prosecution of a criminal matter, prior to commencement of trial, has made an extrajudicial statement that relates to: (4) the results of examinations or the refusal or failure of the accused to submit to examinations or tests, and (6) any opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case. The Board of Professional Responsibility filed charges against John Zimmerman, an Assistant District Attorney General in Davidson County, alleging that he made improper extrajudicial statements to the news media about two pending criminal cases, which I shall refer to as the Sheffield case and the Emmitt and Haynes case. The Sheffield case involved the murder of a quadriplegic veteran in a Nashville cemetery by Sheffield. At his preliminary hearing Sheffield’s confession was introduced, where he admitted stabbing the victim, Campbell. After the preliminary hearing, Zimmerman was questioned by reporters from the Nashville Banner and WSM radio. TV reporters and cameramen were also present. The following article appeared in the Nashville Banner about the Sheffield case: “The medical examiner said (Campbell) was strangled, stabbed in the chest multiple times and had his throat slashed all the way across,” Assistant District Attorney General John Zimmerman said. “The photographs of the body were pretty bad. We’re considering asking for the death penalty,” Zimmerman said today. Once at the cemetery, Sheffield allegedly stabbed the victim “multiple times in the chest and slashed his throat,” Zimmerman said after Wednesday’s preliminary hearing in General Sessions Court. The following article also appeared in The TENNESSEAN: Assistant Attorney General John Zimmerman said outside the courtroom that Sheffield, 19, told police he attempted to strangle Campbell, 52, but the older man “wouldn’t die.” Then, according to Zimmerman, Sheffield said he stabbed Campbell “multiple times in the chest” before slashing his throat, almost from ear to ear. With reference to the Sheffield case, the Hearing Committee found that Sheffield’s confession (which was truly prejudicial) had been introduced at the preliminary hearing, therefore it was of public record and Zimmerman’s comments concerning the confession were permissible. See DR 7-107(B)(3). The Committee, however, found Zimmerman’s comments to the media concerning the examination and report of the medical examiner and photographs of the body were in violation of DR 7-107(B)(4). I am of the opinion that Zimmerman’s statements regarding the medical examiner’s findings did not violate DR 7-107(B)(4). It should be pointed out that in the Sheffield case the cause of death was not a contested issue, nor was the medical examiner’s description of the injuries disputed, and the medical report had no bearing on the guilt or innocence of Sheffield. The *765 autopsy report is a public record, T.C.A. § 38-7-110(c), and therefore, an attorney may state the medical examiner’s findings. DR 7-107(B)(4) deals with “results of any examinations or tests or the refusal or failure of the accused to submit to examinations or tests” [emphasis added]. Section (B)(4) is meant to prevent comments about tests or refusal to submit to tests by the accused, not a victim. For example, the failure of a defendant to pass or to take a polygraph test cannot be commented upon, but here we have an examination of a victim, not the defendant. With reference to Zimmerman’s statement that “the photographs of the body were pretty bad,” the photographs were never displayed or offered to the media by Zimmerman, and they were, therefore, not disseminated to the public. The majority opinion fails to cite what specific rule prohibits such a statement by Zimmerman and how it threatened the Defendant’s fair trial. Emmitt and Haynes were convicted in separate jury trials of assault with intent to commit first degree murder, aggravated kidnapping, aggravated rape, armed robbery, and first degree burglary. The victim was an 82-year-old senior citizen volunteer worker. Before the sentencing hearing, the following statements were attributed to Zimmerman in a local newspaper: “I think these verdicts speak the mind of the jury for the community, in that crimes like this against the elderly are not going to be tolerated.” will ask Judge Sterling Gray in a sentencing hearing ... to impose the maximum sentences on both Emmitt and Haynes and to order those terms consecutive.” “This woman suffered torture at the hands of these two men for about three hours.... As far as I am concerned, there is nothing worse they could have done short of killing her.” With reference to the Emmitt and Haynes case, the Hearing Committee determined there was no violation of DR 7-107(E) because it was not reasonably likely that Zimmerman’s remarks had any effect on the imposition of the sentence in the case. Judge Gray testified at the disciplinary hearing that he was unaware of any extrajudicial statements made by Zimmerman and was not influenced by anything said or done by Zimmerman outside the courtroom. Zimmerman’s statements to the press were not a staged press conference, he did not initiate the discussion, he responded only to questions propounded to him by the news media representatives outside the courtroom. The policy of the District Attorney’s office was to speak openly and courteously with all members of the press consistent with the code of professional responsibility. This John Zimmerman did and he should not now be reprimanded for his actions. The majority opinion points out that “[t]he hearing committee as well as the trial judge in this case has indicated a need for more precise guidelines for interpreting the applicability of DR 7-107 to extrajudicial statements in criminal cases.” The hearing committee noted three tests or standards adopted by courts in other jurisdictions which lend guidance in applying DR 7-107. The three tests are, whether extrajudicial statements of counsel posed: (1) a serious and imminent threat to the fair trial of a defendant, Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 249 (7th Cir.1975), cert. den., 427 U.S. 912 , 96 S.Ct. 3201 , 49 L.Ed.2d 1204 (1976); 2 (2) a clear and present danger to the fair trial of the defendant, Markfield v. New York, 49 App.Div.2d 516, 370 N.Y.S.2d 82 (1975); or (3) a reasonable likelihood of interfering with the fair trial of a defendant, Hirschkop v. Snead, 594 F.2d 356 (4th Cir.1979). The parties and Amici have asked this Court to give them and the Bar of this State some guidance for interpreting DR 7-107’s applicability to extrajudicial state *766 ments. The majority opinion responds to the request by stating: “We have no difficulty in finding adequate guidelines within the context of the rule itself.” This response by the majority that “[t]he rule is explicit”, begs the question. To merely say that “[throughout the text constant reference is made to the statements a ‘reasonable person’ might make, ‘reasonably likely’ to interfere with a fair trial,” is not an adequate response to the guidance sought by the bench and bar. The citation to a “reasonable person” found in DR 7-107, Sections (A), (B), (D), (E), (G) and (H), has nothing to do with the extrajudicial statement of counsel but refers to what “a reasonable person would expect to be disseminated by means of public communication.” In this case there was an obvious expectation that Zimmerman’s statements would be disseminated by means of public communication, since the media approached Zimmerman after the preliminary hearing and sought statements from him. The “reasonable person” reference in Section (B) has nothing to do with giving guidance to the bar concerning extrajudicial statements made prior to trial. The reference to “reasonably likely” in the majority opinion is not found in Section (B), therefore it is difficult to see how the rule can be said to be explicit. The bench and bar have asked for guidance in interpreting DR 7-107’s applicability to extrajudicial statements. I am of the opinion that we should adopt a standard which balances the rights of the accused to a fair trial with the right of a free press and the public’s right to information and knowledge. The majority opinion states “that it would be prudent for the District Attorney to review his ‘open policy with the media’ in relation to the nature of the comments his staff is encouraged to communicate.” This reasoning by the majority is why I feel guidelines for DR 7-107(B) should be established by this Court. The majority opinion does what respondent seeks to avoid — a stifling of the public’s right to know by creating a chilling effect on prosecutors with the suggestion to “review his ‘open policy with the media’ ”. There is a delicate balance between a prosecutor’s right to speak and the right of the public and the press to have access to information, and the rights of the individual accused of a crime and a defendant’s right to a fair trial. I am of the opinion that Zimmerman’s statements should be reviewed by the test of “whether his comments posed a clear and present danger to the fair trial of the defendant.” Under such a test, it is clear that Zimmerman’s statements to the media did not pose a clear and present danger to the defendant’s fair trial and he did not violate DR 7-107. I would reverse the decision of the Chancery Court recommending a private reprimand. I would dismiss the complaint filed by the Board of Professional Responsibility for I find no violation of DR 7-107. . (B) A lawyer or law firm associated with the prosecution or defense of a criminal matter shall not, from the time of the filing of a complaint, information, or indictment, the issuance *764 of an arrest warrant, or arrest until the commencement of the trial or disposition without trial, make or participate in making an extrajudicial statement, that a reasonable person would expect to be disseminated by means of public communication, and that relates to: (1) The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the accused. (2) The possibility of a plea of guilty to the offense charged or to a lesser offense. (3) The existence or contents of any confession, admission, or statement given by the accused or his refusal or failure to make a statement. (4) The performance or results of any examinations or tests or the refusal or failure of the accused to submit to examinations or tests. (5) The identity, testimony, or credibility of a prospective witness. (6) Any opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case. (E) After the completion of a trial or disposition without trial of a criminal matter and prior to the imposition of sentence, a lawyer or law firm associated with the prosecution or defense shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by public communication and that is reasonably likely to affect the imposition of sentence. . See, Ruggieri v. Johns-Manville Products Corp., 503 F.Supp. 1036 (R.I.1980); Bernard v. Gulf Oil Co., 619 F.2d 459, 476-477 (5th Cir.1980) en banc; Shadid v. Jackson, 521 F.Supp. 85 (E.D.Tex.1981); In re: Lasswell, 296 Or. 121 , 673 P.2d 855 (1983); Kemner v. Monsanto Company, 112 Ill.2d 223 , 97 Ill.Dec. 454, 464 , 492 N.E.2d 1327, 1337 (1986). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9679495. Public record. Not legal advice.