final until disposition of timely filed motion for rehearing.
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.
Jo Bondi, Attorney General, Tallahassee, and Elba Caridad
Martin, Assistant Attorney General, Tampa, for respondent.
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.
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.
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).
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.
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.
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.
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.
The Parties' Arguments to the Trial Court
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
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.
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."
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
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
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.