Cyrus Zal v. Cecil Steppe, Warden Attorney General of the State of California , 968 F.2d 924 ( 1992 )

TROTT, Circuit Judge,

concurring.

I concur in Judge Farris’ opinion. However, I feel compelled to add a few words about what I see as the two central issues in this case: the Sixth Amendment “right” to jury nullification of the law, and the First Amendment “right” of an attorney (or his client) to speak freely in a courtroom. I conclude that clients have no right to jury nullification, and that lawyers have no independent First Amendment rights in the courtroom.

Zal claims the trial court’s order violated his clients’ Sixth Amendment rights, both to a jury trial, and to effective assistance of counsel. He argues he had a right to disobey the court order because his clients had a right to explain themselves (through Zal) to the jury. Judge Noonan’s concurring and dissenting opinion picks up on this theme as well:

The first step in making a defense is to explain why the defendant did what he did....

As counsel for those accused of a crime, Zal had an obligation to them to present their defense.... Zal, accordingly, had the right to bring out the reason for his clients’ actions[,] [e]ven if the reason for the actions did not constitute a good defense under applicable law....

Judge Noonan’s opinion at 934 (emphasis added). I have two main disagreements with this argument.

First, the argument simply fails to come to grips with Zal’s admitted central purpose: to brush aside the court’s rulings on the precluded defenses and to prevail wrongfully on the jurors to exercise their illegitimate power of nullification. Such a fundamentally lawless act in a court of law is not protected by the Constitution. To deny an attorney this type of “explanation” is certainly not to deny a defense or right to effective representation. Such an outlandish claim misapprehends the nature of a lawsuit. Indeed, left unchecked, such a practice would allow an attorney intentionally to deprive his opponent of a fair trial and due process of law. Had Zal succeeded, the trial would have been reduced to a free-for-all, in which the laws enacted by the people through their democratically elected representatives effectively would have been ignored and repealed.

I believe neither a defendant nor his attorney has a right to present to a jury evidence that is irrelevant to a legal defense to, or an element of, the crime charged. Verdicts must be based on the law and the evidence, not on jury nullification as urged by either litigant. See Chandler v. Florida, 449 U.S. 560, 574, 101 S.Ct. 802, 809, 66 L.Ed.2d 740 (1981) (“Trial courts must be especially vigilant to guard against any impairment of the defendant’s right to a verdict based solely upon the evidence and the relevant law.”). If society deems important certain “explanations,” those explanations explicitly can become part of the law. But until then, we should not allow litigants to slip through the back door when the front door is locked. Until then, Zal’s “explanations” will be relevant only to sentencing, not to a determination of guilt or innocence. I therefore strongly disagree with Judge Noonan’s contrary conclusion. See Judge Noonan’s opinion at 934.

Second, I agree with the ultimate conclusion of Judge Noonan’s opinion that Zal’s clients did in fact have the opportunity to explain themselves, as the following excerpt from oral argument reveals:

Judge Noonan: Did you put a witness on who testified that he was acting out of necessity?

Zal: Well ...

Judge Noonan: Well, can’t you answer that yes or no?

Zal: I can answer it yes or no, and / need to clarify something that was unfortunately not stated in the facts— and this may make a difference in the Justices’ [sic] consideration of this case. When we finally — this case is on appeal on the normal channel, and when we finally went back over with the — I’ll get to your question Your Honor — the prosecution and I and we went over the record_

Judge Farris: You may get to it after we stop listening and that could be somewhat detrimental to your case.

Zal: Okay. Well, yes, the, with the court’s approval, each defendant was allowed to say one time the reason that he blocked those doors. One time, one time only. Defense counsel was not allowed to pursue that line of questioning. In closing arguments I was not allowed to allude to the fact that each client testified that he was there to save the lives of unborn children. So to answer your question, with the court’s approval, the court said that each defendant one time may say, may testify as to the reason he was there blocking the doors and each defendant that testified did that.

Judge Noonan: So you weren’t sanctioned for that?

Zal: No, I was not sanctioned for that.

(Emphasis added.)

The fact that Zal is not satisfied with what he received only emphasizes how easily his approach can undermine due process. If we take seriously Zal’s argument — if we allow lawyers to appeal for jury nullification at will and indefinitely, and if we grant defendants a Sixth Amendment right to explain themselves in legally irrelevant terms — then we move to a “system” in which the loudest voice carries the day, in which the phrase “order in the court” literally has no meaning, and in which the law has about as much force as the Cheshire Cat’s grin.

Zal also argues the trial court’s order violates the First Amendment because it infringes on his own right to free speech. He states, “attorneys retain their First Amendment rights even as participants in the judicial process.” In support of this proposition, he cites cases articulating the First Amendment rights of lawyers to speak outside the courtroom, and implicitly seeks to extend the reasoning of those cases to inside the courtroom. Judge Noo-nan’s opinion echoes this approach: “we have already held that ‘attorneys and other trial participants do not lose their constitutional rights at the courthouse door.’ ” Judge Noonan’s opinion at 934 (quoting Levine v. United States Dist. Court for the Cent. Dist. of Cal., 764 F.2d 590, 595 (9th Cir.1985), a case involving restrictions on out-of-court communications with the media).

I believe a lawyer properly functioning as such on behalf of a client has no independent First Amendment rights in the courtroom. Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952), and Gentile v. State Bar of Nevada, - U.S. -, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991), the two leading Supreme Court cases in this area, essentially hold that in court, an attorney’s objection to an adverse ruling is his First Amendment remedy. As the Court stated in Gentile, 111 S.Ct. at 2743: “It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely circumscribed. An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim for appeal.”

I believe Sacher and Gentile are potentially misleading: although they discuss the in-court First Amendment rights of lawyers, in fact those rights do not have any independent substance. In the courtroom, during a judicial proceeding, an attorney’s “First Amendment” rights depend exclusively on his client’s trial rights. The attorney may speak only to the extent that his client’s rights allow him to speak. That is why Gentile uses quotation marks when it discusses a lawyer’s right to “ ‘free speech’ ” in the courtroom. Id.

Indeed, even Zal presumably believes the First Amendment does not protect a lawyer who “speaks” in a way that presents to the jury irrelevant or prejudicial evidence. A lawyer may not filibuster a trial. The only time Zal would claim a First Amendment remedy is when the “speech” excluded was improperly excluded. And the operative word, “improper,” obtains its meaning by reference to the client’s trial rights.

Traditional First Amendment analysis also supports the idea that lawyers (and others) have no First Amendment right to speak freely in a courtroom: a courtroom is not a public forum in the technical sense that this terminology is used in free-speech analysis. See Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985) (traditional public fora are “those places which ‘by long tradition or by government fiat have been devoted to assembly and debate’ ” (citation omitted)). Although courtrooms have always been devoted to debate, they have never been devoted to free debate, but only to debate within the confines set by the trial judge and the rule of law. The First Amendment does not allow an attorney to speak beyond those confines.

The rhetorical force of this point is illustrated by a consideration of the First Amendment rights of other trial participants. Does a juror have a First Amendment right to speak or to examine witnesses? Does a court reporter have a right to editorialize during closing arguments? May spectators chafe, chant, and cheer? Could an anti-abortion advocate appear and deliver a right-to-life speech to the jury about to deliberate on the charges against Zal’s clients? I would think not. And I would think a lawyer representing a client is distinguishable from these other participants only because of the client. In a courtroom, a lawyer without a client is like an actor without a part: he has no role to play, and no lines to deliver.

Nor am I convinced by Judge Noonan’s argument that the trial court’s order violated Zal’s clients’ First Amendment rights. See Judge Noonan’s opinion at 934-35 (Zal “was not exercising his own First Amendment right. His speech was used for his clients. It is fair to measure his right by theirs.”). If a plaintiff or defendant has no trial right to present evidence or testimony, then the evidence or testimony may not be presented. In a courtroom, during a judicial proceeding, the First Amendment simply does not protect speech which exceeds the speaker’s trial rights. Until today, I would have thought this proposition too obvious for comment.

In re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972) (per curiam), cited on pages 934-35 of Judge Noonan’s opinion, is not to the contrary. Little reversed the summary contempt conviction of a pro se petitioner who stated in closing argument that the trial court was biased against him, and that he was a political prisoner. Id. at 554-56, 92 S.Ct. at 659-61. (Little also called the judge a “ ‘M- F-,’ ” but that outburst was not involved in the case. Id. at 554, 92 S.Ct. at 660.) The Supreme Court focused on the lack in Little’s case of a threat to the administration of justice. Id. at 555-56, 92 S.Ct. at 660-61. Although it cited language from a First Amendment case, Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546 (1947), cited in Little, 404 U.S. at 555, 92 S.Ct. at 660, the Court's holding was based on a different Constitutional provision, the Due Process Clause. “The reversal of this conviction is necessarily required under our holding in Holt v. Virginia....” Little, 404 U.S. at 556, 92 S.Ct. at 660.

Holt v. Virginia, 381 U.S. 131, 85 S.Ct. 1375, 14 L.Ed.2d 290 (1965) (Black, J.) (8-1), reversed contempt convictions imposed for the filing of motions for a change of venue due to perceived bias in the trial judge. Id. at 132-33, 85 S.Ct. at 1375-76. The Holt Court reversed the convictions because the petitioners had a due process right to file the motions: “since ‘A fair trial in a fair tribunal is a basic requirement of due process,’ it necessarily follows that motions for change of venue to escape a biased tribunal raise constitutional issues both relevant and essential.” Id. at 136, 85 S.Ct. at 1378 (citation omitted). The contempt was improper because the motions filed were part of “the right to present a defense” in the underlying case. Id. at 137, 85 S.Ct. at 1378.

Both Holt and Little are based on the parties’ trial rights, not on their First Amendment rights, and not on the First Amendment rights of their lawyers. The language in Little concerning threats to the administration of justice only reinforces that point: the lawyer may speak only to the extent necessary to protect his client from an improper administration of justice, and he may not speak to the extent that he threatens the corresponding rights of the opposing party.

In sum, I concur in Judge Farris’ opinion because I do not believe parties to a lawsuit or their attorneys have independent free-speech rights in a courtroom. Zal’s clients did not have a federal Constitutional right to have the prohibited words used in an attempt to encourage jury nullification. Given that conclusion, it is clear that neither Zal nor his clients had a First Amendment right to use the words. Hence Zal’s custody does not offend the Constitution, laws, or treaties of the United States, and he has no remedy on federal habeas corpus.