Dippolito v. Florida, No. 4D17-1145. District Court of Appeal, 4th District.  May 26, 2017.


The Florida District Court of Appeals, Fourth District, recently affirmed a criminal trial court’s entry of an order prohibiting all counsel from making extrajudicial statements — other than those concerning procedure — before a jury was fully empanelled for a third trial concerning Dippolito’s alleged solicitation of a contract killer to murder her then husband.

Dippolito’s alleged solicitation turned sour when it emerged that the hitman was a local police officer.

That defendant’s alleged plan was foiled failed to end the matter, as video of Dippolito’s conversation with the “hit man” was posted to YouTube.  Mainstream media mounted intensive coverage of the case.

Defendant’s initial conviction was reversed on appeal because the reviewing court found error in the trial court’s refusal of defendant’s request to conduct individual voir dire of jurors.  Additionally, a juror was discovered to have openly discussed defendant’s alleged poisoning plans, although no evidence suggested this.

Defendant’s second trial ended in mistrial because of a hung jury.

In both trials there was widespread awareness of the case among potential jurors.

In the run-up to the third trial, the prosecution sought a protective order to preclude out of court statements by counsel and particularly criticized defendant counsel’s tactics. Defense counsel argued that his First Amendment rights would be impaired if a “gag order” were entered.  

Defense counsel argued that the state’s release of the video impaired jury selection and the fact that the lead prosecutor had already published a book about the case diminished the defendant’s ability to secure a fair trial.  Defendant’’s attorney felt that a press release criticizing the costly prosecution as politically motivated, and suggesting that defendant had more than served any sentence that might be imposed by years of house arrest,  was necessary to counterbalance the state’s actions.

The trial court granted the prosecution’s motion to restrict all counsel’s extrajudicial speech, nothing with particularity defense counsel’s many press conferences and television appearances.  Nonetheless, with the protective order in place, the court declined to revoke defense counsel’s pro hac vice status.  

 

The media saturation that pervaded two trials warranted some restraint of counsel’s speech, the trial court observed.  The court forbade extrajudicial commentary on the evidence, on opinions, on inferences and interpretations, on the state’s motivations, on sentencing, on legal themes, or  prior trials.  The order specifically forbade disparagement of counsel.  

Comments consistent with professional standards concerning procedure were permissible.  The order would dissolve on swearing in of a jury.

The court refused to order the police to take down the video on its website nor did it address media reports said to have been promoted by the prosecution.  

The trial court’s protective order was a reasonable restriction on any First Amendment rights, as it was narrowly tailored to serve the important interest of a fair trial, and it was limited in time to the period before jury empanelment.  Defense counsel could not be heard to complain about an order that applied equally to all counsel, particularly where defense counsel had offered to consent to the order in order to avoid revocation of his ability to appear pro hac vice.  Moreover, the court has ongoing capacity to review the professional conduct of counsel, and may review speech matters according to standards less demanding than those applied to the press.

A dissenting judge criticized the quality of the evidence and asserted that the appellate court ought to have conducted an independent review of the evidence.  

Dippolito v. State (Fla. App., 2017)

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