NEWS MEDIA UPDATE · MICHIGAN · Secret Courts · Aug. 16, 2006
Speech about inadmissable evidence not protected
Aug. 16, 2006 · The First Amendment does not protect a six-year sexual harassment case from dismissal because the plaintiff and her attorneys ignored a judge’s warning not to publicize an expunged criminal conviction, violating state rules of professional conduct, the Michigan Supreme Court has ruled, reversing an appellate court decision.
“Plaintiff’s and her counsel’s numerous public references to [the defendant’s] inadmissible, expunged indecent exposure conviction, despite a court order excluding such evidence, were obviously intended to prejudice potential jurors,” Justice Maura Corrigan wrote for the four-judge majority July 31.
Justine Maldonado sued Ford Motor Co. in June 2000, alleging that her supervisor, Daniel Bennett, sexually harassed her. At Ford’s request, Wayne Circuit Court Judge Kathleen Macdonald agreed to exclude evidence of Bennett’s 1995 indecent exposure conviction.
In September 2001, however, Maldonado’s lawyers issued a press release that mentioned the conviction, which was subsequently reported by The Associated Press, the Detroit Free Press, WDIV-TV and other news outlets.
In a separate proceeding that November, Bennett’s indecent exposure conviction was legally removed — or expunged — from the public record.
Michigan law makes it a crime to use or tell others about an expunged conviction.
In light of the news coverage, Wayne Circuit Court JudgeWilliam Giovan warned that he would dismiss the case if any attorneys violated their ethical obligation to keep quiet about anything likely to materially prejudice the case and impair the court’s ability to empanel a fair jury.
Despite this warning, Maldonado admitted in her deposition that she would use any opportunity to discuss Bennett’s indecent exposure conviction and, with her lawyers, demonstrated outside of Ford headquarters, distributing leaflets about Bennett’s expunged conviction.
In August 2002, Judge Giovan dismissed Maldonado’s case after Bennett and Ford argued that she and her attorneys were trying to taint the jury pool.
An appeals court concluded that Maldonado’s case had been improperly dismissed in violation of her First Amendment rights, but four members of the Michigan Supreme Court — including Chief Justice Clifford Taylor, Stephen Markman, and Robert Young Jr. — disagreed.
Relying on a 1991 ruling by the U.S. Supreme Court, Justice Corrigan rejected the appeals court’s reasoning that dismissal was improper unless the jury was actually tainted. Not only did the U.S. Supreme Court not require trial courts to find “actual taint” when determining whether a trial court’s limitation is needed to protect potential jurors from prejudice, but that standard is impossible to apply, especially where nearly three years had passed.
This restriction on Maldonado and her attorney’s speech — preventing all public references to the expunged conviction — was not so broad as to violate the First Amendment, Justice Corrigan wrote for the majority. “This limitation on plaintiff’s and her counsel’s speech only applied to speech that was substantially likely to have a materially prejudicial effect and that, therefore, violated the rules of ethics. It did not prohibit plaintiff and her counsel from speaking about sexual harassment or the general nature of plaintiff’s case,” she wrote.
Justices Elizabeth Weaver, Marilyn Kelly, and Michael Cavanagh dissented in two separate opinions.
ACLU of Michigan Legal Director Michael Steinberg told The Associated Press that “the highest court of this state [is] punishing individuals for speaking about matters of great public concern.”
Throwing out an entire case because of a plaintiff’s out-of-court comments is “extraordinary,”‘ attorney Mark Granzotto told the wire service.
The case will likely be appealed to the U.S. Supreme Court, AP reported.
(Maldonado v. Ford Motor Co., Plaintiff’s Counsel: George B. Washington, Scheff & Washington, Detroit, Mich.) — SB