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Dippolito v. State

Florida Court of Appeals, Fourth District

May 26, 2017

DALIA DIPPOLITO, Petitioner,
v.
STATE OF FLORIDA, Respondent.

         Not final until disposition of timely filed motion for rehearing.

         Petition for writ of certiorari to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Glenn D. Kelley, Judge; L.T. Case No. 502009CF009771A.

          Gregory C. Rosenfeld of Law Offices of Greg Rosenfeld, P.A., West Palm Beach, and Andrew B. Greenlee of Andrew B. Greenlee, P.A., Sanford, for petitioner.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for respondent.

          Gerber, J.

         The defendant in a criminal case seeks certiorari review of the trial court's order prohibiting all attorneys in the case from making extrajudicial statements until the jury is sworn for the defendant's third trial. The defendant argues the court's order departs from the essential requirements of law in three respects: (1) the State made no evidentiary showing that any threat to a fair trial was imminent and substantial; (2) the order is an overbroad prohibition of political speech and the court failed to consider less restrictive alternatives like individual voir dire and striking of tainted jurors; and (3) the court's selective enforcement of the order amounts to viewpoint discrimination. We deny the petition, because the court's well-reasoned order does not depart from the essential requirements of the law. The order demonstrates that extrajudicial statements pose an imminent and substantial threat to a fair trial; is narrowly tailored in both substance and duration; and is viewpoint neutral as it applies to extrajudicial comments by both parties' counsel.

         We present this opinion in six parts:

1) the procedural history;
2) the parties' arguments to the trial court;
3) the trial court's order and post-order proceedings;
4) the parties' arguments to this court;
5) our standard of review; and
6) our analysis of the defendant's three arguments.

         1. Procedural History

         The defendant is charged with solicitation to commit first-degree murder with a firearm. The State alleges that the defendant hired a hitman to kill her then husband. The purported hitman was actually an undercover officer from the Boynton Beach Police Department. See Dippolito v. State, 143 So.3d 1080, 1081 (Fla. 4th DCA 2014).

         In 2009, the Boynton Beach Police Department arrested the defendant and published video of the defendant talking to the purported hitman. Other footage showed the defendant reacting to a staged crime scene at her house and to the false news that her husband had been killed. These videos were uploaded to the police department's YouTube page, and they also aired on an episode of the national TV show COPS. Id. As this court previously noted, "[t]he case generated considerable pretrial publicity." Id. at 1081-82. The videos posted by the Boynton Beach Police Department were replayed and shown on national TV shows including the Today show, Good Morning America, and others. Id. at 1082.

         In 2011, at the defendant's first trial, her theory of defense was that she believed she was auditioning for a TV show and therefore was acting during the events shown on video. At jury selection, many prospective jurors indicated they previously heard of the case by raising their hands. Id. It later was alleged that 28 of the 54 prospective jurors had raised their hands. Id. After a ten-day trial, the jury found the defendant guilty as charged. On appeal, we reversed, concluding the defendant was deprived of an impartial jury. Id. at 1086. Specifically, we concluded the trial court erred by denying the defendant's request "to individually voir dire the jurors on the media coverage" of the case. Id. at 1085. We also found the trial court erred by failing to strike the jury panel after one prospective juror openly discussed an allegation that the defendant had attempted to poison the victim - an allegation not charged in the case. Id.

         In December 2016, at the defendant's second trial, she claimed police misconduct and asserted an objective entrapment defense. During jury selection, a large number of the 200-person jury panel indicated they previously heard something about the case. While conducting voir dire, the defense filed three separate motions for a change of venue, asserting that the defendant could not receive a fair trial due to pervasive local media coverage of the case. The defendant specifically cited the police department's YouTube videos relating to the case. The trial court denied the motions to change venue, reasoning that, at the same time defense counsel was complaining about media attention, he was commenting about the case on his Twitter account. The second trial ended with the trial court declaring a mistrial due to a hung jury.

         In January 2017, following the mistrial, defendant's two defense attorneys issued a press release. Defense counsel said the prosecution against the defendant was "politically motivated" and came at a significant "price tag" for taxpayers. Defense counsel also asserted that, even if the defendant "did the crime, " she already had "done the time" by completing nearly eight years of house arrest.

         2. The Parties' Arguments to the Trial Court

         Following issuance of defense counsels' press release, the State filed a motion for protective order to prevent extrajudicial comments by defense counsel. In the same motion, the State sought the revocation of the lead defense attorney's pro hac vice status. The State alleged that "[r]ecent statements by defense counsel indicate they are intentionally trying to improperly influence the local jury pool" before the defendant's third trial, which is scheduled for June 2, 2017. The State specifically cited defense counsels' press release. The State also referred to the lead defense attorney's "prior pattern and past tactics" of attempting to influence potential jurors. In support of its motion, the State cited Rule 4-3.6(a) of the Rules Regulating the Florida Bar which provides:

A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding due to its creation of an imminent and substantial detrimental effect on that proceeding.

         The defendant filed a response arguing that the State was attempting to "impair her attorneys' First Amendment right to free speech." The defendant further argued the State was improperly influencing the jury pool to have a negative view of her by releasing, through the Boynton Beach Police Department, videos relating to her case. The defendant further noted that the prosecutor from her first trial had written a book about the case called, "Poison Candy: The Murderous Madam: Inside Dalia Dippolito's Plot to Kill." Although the book was released after the prosecutor left her job at the State Attorney's Office, it was published while the defendant's first appeal was pending, and the former prosecutor is now counsel for the alleged victim in this case. The defendant further argued that defense counsel issued their press release following the mistrial only as a way to counter the State's own press release, which indicated the defendant would be tried for a third time. The defendant maintained that the "few stray comments" by defense counsel "do not pose a substantial or imminent threat to a fair trial" and did not support a gag order.

         The State filed a reply clarifying that it sought a gag order which would apply to "all counsel, including the prosecutors, " and an order that would require counsel "to refrain from extrajudicial comments to the media until the case has been tried to a verdict."

         The trial court held a hearing on the State's motion for protective order. At the hearing, the defendant argued the State failed to show that defense counsels' press release violated Rule 4-3.6(a). The defendant also contended that the State's proposed gag order was a prior restraint on speech, was not narrowly tailored, and was "not substantiated by the sort of evidentiary support that would require the Court to issue a gag order." According to the defendant, the State failed to show there was any risk that prospective jurors would be tainted by counsel's extrajudicial statements.

         The trial court asked the State what evidence it had that extrajudicial statements threatened a fair trial. The State cited: the January 2017 press release from defense counsel; an unspecified number of press conferences held by defense counsel during the prior trials; and critical comments defense counsel leveled at the trial court in February 2016, which resulted in the trial court's sua sponte issuance of an order to show cause and its consideration of whether to revoke defense counsel's pro hac vice status. The State added:

All day long, every day [defense counsel] left this Courtroom and his goal was [to] get on TV so that [he could] influence this jury. That was his goal. Every day demeaning our witnesses, demeaning the Boynton Beach Police Department. ...

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