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A gag order on a lawyer should be used only to prevent prejudicing a jury pool or to avoid a “carnival atmosphere” in a high-profile case, but it cannot be justified by citing possible effects on the judge’s ability to decide pretrial issues, the 3rd U.S. Circuit Court of Appeals has ruled. In United States v. Scarfo, a unanimous three-judge panel vacated a gag order imposed by U.S. District Judge Nicholas H. Politan of the District of New Jersey on attorney Donald F. Manno after Manno gave an interview to The Philadelphia Inquirer criticizing the government’s investigative techniques. At the time of the interview, Manno had already been disqualified from representing the lead defendant — Nicodemo S. Scarfo Jr., the son of the former Philadelphia Mafia boss — on charges of supervising a mob-linked bookmaking and loansharking operation in North Jersey. In the December Inquirer article, Manno criticized the FBI’s use of a sophisticated surveillance tool — a “keystroke-logging device” — that allowed the FBI to reproduce every stroke he entered on a computer on which gambling records allegedly were stored. Manno was quoted in the article as saying: “Anything he typed on that keyboard — a letter to his lawyer, personal or medical records, legitimate business records — they got it all. … That’s scary. It’s dangerous.” Even though he was already off the case, Politan issued a gag order that barred Manno from making any further comments to the media about the issue. Now the 3rd Circuit has ruled that Politan went too far and that his order violated Manno’s First Amendment rights. “There was no risk of prejudice to the judge because judges are experts at placing aside their personal biases and prejudices, however obtained, before making reasoned decisions,” Senior 3rd Circuit Judge Max Rosenn wrote. “Judges are experts at closing their eyes and ears to extraneous or irrelevant matters and focusing only on the relevant in the proceedings before them.” Rosenn, who was joined by Judges Anthony J. Scirica and Marjorie O. Rendell, found that Politan’s primary concern in imposing the gag order was “the risk of prejudice to [the court] in deciding the legal issues not yet before it.” Such a reason is not enough to justify putting a gag order on a lawyer, the court found. Rosenn found that Politan “did not articulate any specific or general prejudice [the court] would suffer, and we can see none.” Instead, Rosenn said, “the closest the court came to identifying prejudice was its statement that ‘I was concerned whether we talk about how I felt — orderly presentation of significant and important arguments by counsel.’ “ Rosenn concluded that Politan “appears to have been upset about reading of a matter pertaining to a case before him in the newspaper before hearing about it in his courtroom.” But Rosenn found that such a concern “does not rise to any measurable level of prejudice. A perturbed judge is not necessarily a prejudiced judge, especially when, as in this case, he is an experienced judge.” Rosenn found that Manno’s comments to the media would not disrupt the presentation of the case. “The statement may have been imbalanced or even irritating because of the timing and content, but not materially prejudicial. If the district judge had some undisclosed reason for suffering prejudice from the newspaper article, his proper course of action was recusal, not a prior restraint on all of Manno’s speech relating to this case,” Rosenn wrote. In his closing paragraphs, Rosenn said the case required the court to balance a judge’s interest in preserving the fairness of a trial against a lawyer’s right to criticize the prosecution. “We always are mindful of the importance of an orderly and fair trial, especially one in which the liberty of an individual and important interests of the public are at stake. However, we are also concerned with the longstanding value and importance of the protection of First Amendment rights,” Rosenn wrote. “Public awareness and criticism have great importance, especially where, as here, they concern alleged governmental investigatory abuse. Without evidence that Manno’s statements to the press jeopardized the fairness of the trial or in any way materially impaired or prejudiced the judicial power of the court, we can see no valid reason to interdict a lawyer’s First Amendment right of speech, even of one disqualified in the case.”

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