Amicus Curiae Brief — Cable News Network, Inc. v. Manuel Antonio Noriega and United States

NO. 90-767

Supreme Court of the United States

OCTOBER TERM, 1990

CABLE NEWS NETWORK, INC., and

TURNER BROADCASTING SYSTEM, INC.,

Petitioners,

Vv.

MANUEL ANTONIO NORIEGA and

UNITED STATES OF AMERICA,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

MOTION FOR LEAVE TO FILE

AND BRIEF AMICUS CURIAE OF THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF THE RESPONDENTS

GERALD H. GOLDSTEIN*

CYNTHIA H. ORR

ROBERT O. SWITZER

PATRICK T. PERANTEAU

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

2900 Tower Life Building

San Antonio, Texas 78205

*Counsel of Record for

Amicus Curiae

W)

NO. 90-767

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

CABLE NEWS NETWORK, INC., and

TURNER BROADCASTING SYSTEM, INC.,

Petitioners,

Vv.

MANUEL ANTONIO NORIEGA and

UNITED STATES OF AMERICA,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

National Association of Criminal Defense Lawyers, Inc.

(NACDL) hereby respectfully moves for leave to file the

attached amicus curiae in this case. Pursuant to Rule 37.2

of the Rules of this Court, amicus has been unable to

obtain the written consent to the submission of this brief

of all parties to this action due to the severe time con-

straints imposed for filings herein. Amicus has however,

obtained consent of respondents.

The National Association of Criminal Defense Lawyers,

Inc. (NACDL) is a District of Columbia non-profit cor-

poration with a membership of more than 5,000 lawyers

and 25,000 affiliate members, including representatives of

every state. NACDL was founded over twenty-five years

ago to promote study and research in the field of criminal

defense practice and to encourage the integrity, indepen-

dence and expertise of defense lawyers.

Among NACDL’s stated objectives is the promotion of

the proper administration of criminal justice. Consequently,

NACDL concerns itself with the protection of individual

rights and the improvement of the criminal law, its prac-

tices and procedures. A cornerstone of this organization’s

objective, and of the criminal justice system, is the funda-

mental constitutional protection of an individual’s fourth

amendment rights. NACDL is very concerned about any

decision that would undermine or dilute this constitutional

guarantee, as would adoption of the position taken by the

petitioners in the instant case.

The Amicus Curiae Committee for the NACDL has dis-

cussed this case and decided that the issues are of such

importance to defense lawyers throughout the nation that

NACDL should offer its assistance to the court.

Respectfully submitted,

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

GOLDSTEIN, GOLDSTEIN & HILLEY

2900 Tower Life Building

San Antonio, Texas 78205

(512) 226-1463

GERALD H. GOLDSTEIN

State Bar No. 08101000

Attorney for Amicus, NACDL

NO. 90-767

IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1990

CABLE NEWS NETWORK, INC., and

TURNER BROADCASTING SYSTEM, INC.,

Petitioners,

Vv.

MANUEx ANTONIO NORIEGA and

UNITED STATES OF AMERICA,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF AMICUS CURIAE OF THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF

THE RESPONDENTS

GERALD H. GOLDSTEIN*

CYNTHIA H. ORR

ROBERT O. SWITZER

PATRICK T. PERANTEAU

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

2900 Tower Life Building

San Antonio, Texas 78205

*Counsel of Record for

Amicus Curiae

SSS CELE © SE FE ROY SG UE ER RE ARTI STEER ne

TABLE OF CONTENTS

Page

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SUMMARY OF THE ARGUMENT ................... 2

ARGUMENT AND AUTHORITIES ..................-. 2

Be RY eT en Pe pee ne 7

CERTIFICATE OF SERVICE .....ccccccccsccccececes 9

II

TABLE OF AUTHORITIES

CASES

Application of Dow Jones & Co. Inc., 842 F.2d 603, 609 (2d

Cir.), cert denied, 448 U.S. 946, 102 L.Ed.2d 365, 109

Bee Ee CUED wn das vecncvaccceds cs peakeee ease seer

Belo Broadcasting Corp. v. Clark, 654 F.2d 432 (Sth Cir.

ran cinta wns can sx PREMRAC BabA BERKS Eb e<

Dalias Cmwboys Cheerleaders v. Scoreboard Posters, Inc.,

600 F.2d 1184, 1188 (Sth Cir. 1979) ............. eee

Gannett Co. v. DePasquale, 443 U.S. 368, 378, 99 S.Ct.

2898, 2904, 61 L.Ed.2d 608 (1979) ..........0.ceeees

IN RE: Cable News Network, Inc. and Turner Broad-

casting System, Inc., F.2d , No. 90-9832 (11th

asad bets ate dee asbassretnebeveyss

Nebraska Press Association v. Stuart, 427 U.S. 539, 570,

ee a ee ey 6)

Nixon v. Warner Communications, 435 U.S. 589, 55 L.Ed.2d

EE UD oc ccccan ek ssec theusdceesse

Snepp v. United States, 444 U.S. 507, 62 L.Ed.2d 704, 100

a a a nie kak ee hg 4b 0Kdb bs ohne bsa0

Upjohn Co. v. United States, 449 U.S. 507, 66 L.Ed.2d 584,

i ee Ss tes ab es hage de saee bees sane

U.S. v. Columbia Broadcasting System, Inc., 497 F.2d 102

else nahh a abehes weep 6e6eed

U.S. v. Schiavo, 504 F.2d 1 (3rd Cir. 1974) .............

Zacchini v. Scripps-Howard Broadcasting Co., 433 U:S. -562,

53 L.Ed.2d 965, 97 S.Ct. 2849 (1977)

oeereereeerveeaereeaeee

OTHER AUTHORITY

Radin, The Privilege of Confidential Communications Be-

tween Lawyer and Client, 16 Cal. L. Rev. (1928)

Page

1

The brief is submitted on behalf of The National

Association of Criminal Defense Lawyers.

INTERESTS OF AMICUS CURIAE

Pursuant to Rule 37.2 of the Rules of this Court, amicus

has been unable to obtain the written consent to the sub-

mission of this brief of all parties to this action due to the

severe time constraints for filings herein. Amicus has how-

ever, obtained the oral consent of respondents.

The National Association of Criminal Defense Lawyers,

Inc. (NACDL) is a District of Columbia non-profit cor-

poration with a membership of more than 5,000 lawyers

and 25,000 affiliate members, including representatives

from every state. NACDL was founded over twenty-five

years ago to promote study and research in the field of

criminal defense practice and to encourage the integrity,

independence and expertise of defense lawyers. Amicus has

a particular interest in preserving the confidentiality of

attorney-client communications.

AN UNNECESSARY CONFLICT

Attorneys who represent individuals accused of crime

are by their very nature sensitive to conflicts between com-

peting interests within the Bill of Rights. This case presents

a Classic confrontation between a District Court’s restrain-

ing order imposed to protect the vital constitutional rights

of an accused, and the explicit constitutional command

that the freedom to publish not be abridged.

But this is a conflict which never should have arisen.

It would appear that here it is the Government, not the

press, that is the real culprit for having invaded these

privileged communications in the first place. Nevertheless,

it is the publication of these confidential communications

which poses the greatest threat to the rights of the accused.

2

SUMMARY OF ARGUMENT

AMICUS OPPOSES ANY STAY

Amicus urges this Court to deny Petitioner’s Application

to Stay the District Court’s restraining order. For to permit

publication of these confidences is to destroy them. To

permit publication of these presumptively privileged com-

munications without first affording the District Court an

opportunity to review same, is to deprive that Court of

any meaningful opportunity to weigh the competing in-

terests between tire accused, the press, and the public.

And to grant a stay now, before this matter is heard, will

permit dissemination to over 400 million viewers world-

wide, effectively pretermitting any such determination by

this Court as well.

ARGUMENT AND AUTHORITIES

OLDEST PRIVILEGE KNOWN TO LAW

The attorney-client privilege, which can trace its roots

back to ancient Rome,’ has been described by this Court

as “the oldest of the privileges for confidential communi-

cations known to the common law”, Upjohn Co. v. United

States, 449 U.S. 83, 66 L.Ed.2d 584, 591, 101 S.Ct. 677

(1980).

“The attorney-client privilege is the oldest of the

privileges for confidential communications known to

the common law. . . . Its purpose is to encourage full

and frank communication between attorneys and their

clients and thereby promote broader public interests

in the observance of law and the administration of

justice. The privilege recognizes that sound legal

1. See: Radin, The Privilege of Confidential Communications Be-

tween Lawyer and Client, 16 Cal. L. Rev. 487 (1928).

3

advice or advocacy serves public ends and that such

advice or advocacy depends upon the lawyer being

fully informed by the client.”

The attorney-client privilege, the Sixth Amendment right

to “effective assistance” of counsel, and the Fifth Amend-

ment right to a fair trial are all inextricably intertwined.

Without the ability to communicate and seek advice of

one’s counsel in confidence there can be no effective

assistance.

Where a presumptively innocent accused is detained

without bail, his inability to seek and obtain legal advice

in confidence affects the fairness of those proceedings.

Depending upon the substance of Noriega’s discussions

with his counsel, the publication and disclosure of the

contents of those tape recordings may prevent any prose-

cution at all.

DISTRICT COURT DEPRIVED OF OPPORTUNITY

FOR MEANINGFUL REVIEW

Yet here the Petitioners seek to publish tape recordings

of acknowledged attorney-client communications without

affording the District Court an opportunity to determine

their privileged nature, or the impact such publication

would have upon the individual’s rights.

“Thus, the court was in effect being asked to make

a factual determination without being allowed to re-

view the facts. On this point, it is important to note

that CNN is in possession of the tapes, and has

resisted turning them over to the court for review.

It seems fundamentally unfair to allow CNN to bene-

fit from its refusal to disclose the contents of the tapes

to the court—that is, to allow CNN to argue that no

prior restraint should issue beccuse no clear and im-

mediate harm is apparent when the only reason that

4

no clear and immediate harm yet appears is because

CNN has so far prevented this court from reviewing

the content of the tapes in its possession.” Supple-

mental Order entered in U.S. v. Noriega, No. 88-

0079-CR-Hoeveler on November 9, 1990.

As the Eleventh Circuit noted:

“CNN has shackled the District Court by refusing

that court’s reasonable request to review the audio

tapes it has in its possession and which CNN desires

to broadcast. While appealing to our nation’s judicial

system for relief, CNN is at the same time defiant

of that system’s reasonable directions. . . .

The District Court must possess the subject tapes in

order to make its in camera determination of whether

the attorney-client communications are privileged. We

are troubled by CNN’s refusal to obey the District

Court’s order to release the tapes in question to the

court.” In re Cable News Network and Turner Broad-

casting System, Inc., F.2d , No. 90-0832

(11th Cir. November 10, 1990).

STAY WOULD EFFECTIVELY PRECLUDE

REVIEW BY THIS COURT AS WELL

Now Petitioners seek a stay from this Court permitting

dissemination of these presumptively privileged communi-

cations’ to over 400 million viewers worldwide, pretermit-

ting any meaningful review or consideration of the rights

of the accused.

2. The trial court specifically found that the attorney client privi-

lege had been violated:

“Defendant characterizes the issue as a violation of the attorney-

client privilege. To be sure, there is no question that such a

violation had occurred. CNN concedes that the tapes contain

communication between Noriega and his lawyers or staff, and

there is no indication that the attorney-client privilege was

waived” See Order entered by Judge Hoeveler, November 8, 1990

Petitioner’s Appendix p. 22a.

5

STANDARD OF REVIEW

The decision as to whether to grant injunctive relief

rests within the sound discretion of the trial court. Nixon

v. Warner Communications, 435 U.S. 589, 55 L.Ed.2d

570, 98 S.Ct. 1306 (1978); Belo Broadcasting Corp. v.

Clark, 654 F.2d 432 (5th Cir. 1981). See also U.S. v.

Columbia Broadcasting System, Inc., 497 F.2d 102 (Sth

Cir. 1974) [trial court has broad discretion to regulate

matters affecting the trial process]; U.S. v. Schiavo, 504

F.2d 1 (3rd Cir. 1974). Furthermore, this Court has

recognized the trial court’s “affirmative constitutional duty”

to ensure a fair trial by “minimiz[ing] the effects of pre-

trial prejudicial publicity”. Gannett Co. v. DePasquale,

443 U.S. 368, 378, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608

(1979). Absent an abuse of that discretion, the District

Court’s decision should not be disturbed.

“In urging reversal of the district court’s determina-

tion that Moore’s rights would be compromised by

access to the tapes, the appellants would have us say

that the trial court must have positive proof of the

impossibility of assuring defendant a fair trial before

access may be denied. A forecast of future difficulty

is by definition uncertain, but equally uncertain is

the rejection of that forecast. Speculative dismissal

by an appellate court of a trial judge’s admittedly

a uncertain but quite reasonable prognostication only

compounds the problem. The inferined and considered

judgment of the trial judge should prevail in any

choice between such equally speculative results. It is

better to err, if err we must, on the side of generosity

in the protection of a defendant’s right to a fair trial

before an impartial jury.” (emphasis supplied) Belo

rot Tile Corp. v. Clark, 654 F.2d 423, 431

(1981).

6

By depriving the District Court access to the tapes

below the Petitioners effectively precluded any meaningful

determination of these competing interests.

By seeking permission to publish those tapes before

this case is heard, Petitioners wish to deprive this Court

of that opportunity as well.

As the Second Circuit points out in Application of Dow

Jones & Co., Inc., 842 F.2d 603, 609 (2nd Cir.), cert.

denied, 488 U.S. 946, 102 L.Ed.2d 365, 109 S.Ct. 377

(1988):

“When the exercise of free press rights actually

tramples upon Sixth Amendment rights, the former

must nonetheless-yield to the latter.”

If contractual rights and “the appearance of confidenti-

ality so essential to the effective operation of our foreign

intelligence services” may take precedence over the right

to publish See: Snepp v. United States, 444 U.S. 507,

62 L.Ed.2d 704, 100 S.Ct. 763 (1980), then surely main-

taining the confidences so essential to obtaining the assist-

ance of counsel would as well.

If one’s “ability to earn a living.as an entertainer” has

been held to have prominence over a television station’s

First Amendment right to broadcast, See: Zacchini v.

Scripps-Howard Broadcasting Co., 433 U.S. 562, 53 L.Ed.

965, 97 S.Ct. 2849 (1977), then surely the threat to an

accused’s liberty should carry equal weight.

If “(t]he first amendment is not a license to trample

on legally recognized rights in intellectual property”, See:

Dallas Cowboys Cheerleaders v. Scoreboard Posters, Inc.,

7

600 F.2d 1184, 1188 (Sth Cir. 1979), then surely it is

not a ticket to “trample on iegally recognized rights” of

the criminally accused, where more than one’s “intellect”

is at stake.

“In our nation, the courts are charged with safe-

guarding a defendant’s right to a fair trial and with

cautiously balancing First Amendment and Sixth

Amendment interests. ‘It is not asking too much to

suggest that those who exercise First Amendment

rights in newspapers or broadcasting enterprises direct

some effort to protect the rights of an accused to a

fair trial .. .’” In re Cable News Network, Inc. and

Turner Broadcasting System, Inc., F.2d.

No. 90-9832 (11th Cir. November 10, 1990), citing,

Nebraska Press Ass’n, 427 U.S. 539, 560, 49 L.Ed.

2d 683, 96 S.Ct. 2791 (1976).

At the very least, First Amendment concerns could

await proper review by this Court.

CONCLUSION

Petitioner’s Application for Stay should be denied.

Respectfully submitted,

GERALD H. GOLDSTEIN

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

2900 Tower Life Building

San Antonio, Texas 78205

(512) 226-1463

Counsel of Record for Amicus

8

NO. 90-767 its SO

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

CABLE NEWS NETWORK, INC., and

TURNER BROADCASTING SYSTEM, INC.,

Petitioners,

Vv.

MANUEL ANTONIO NORIEGA and

UNITED STATES OF AMERICA,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF AMICUS CURIAE OF THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF

THE RESPONDENTS

CERTIFICATE OF SERVICE

I, Gerald H. Goldstein, a member of the Bar of this

Court, hereby certify that on this 17th day of November,

9

1990, one copy of the Brief Amicus Curiae of the National

Association of Criminal Defense Lawyers in the above

entitled case was served by mail and by fax upon Frank

A. Rubino, Esq., 2601 S. Bayshore Dr., Suite 1400, Coco-

nut Grove, Fla. 33133, Counsel for the respondent Noriega

herein, and upon Terry S. Beinstock, Esq., and Dan

Waggoner, Esq., (by fax only) Suite 3160, S.E. Financial

Center, 200 So. Biscayne Blvd., Miami, FL 33131, counsel

for the petitioners Cable News Network and Turner Broad-

casting, Inc. herein, and upon Dean I. Ringel, Esq., 80

Pine Street, New York, NY 10005, and upon Dexter W.

Lehtinene, Esq., United States Attorney, 155 S. Miami

Ave., Miami, Fla. 33130, counsel for the respondent

United States of America herein, and upon the Solicitor

General, Department of Justice, Washington, D.C. 20530.

I further certify that all parties required to be served have

been served.

GERALD H. GOLDSTEIN

NATIONAL ASSOCL\TION OF

CRIMINAL DEFENSE LAWYERS

2900 Tower Life Building

San Antonio, Texas 78205

(512) 226-1463

Counsel of Record for Amicus