Graham v. State of South Dakota

Filing 48

MEMORANDUM OPINION AND ORDER Denying 42 Motion for Order to Restrict Publicity. Signed by U.S. District Judge Lawrence L. Piersol on 10/5/15. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

FILED
OCT 0 5 2015

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JOHN GRAHAM,
CIV 13-4100
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Petitioner,
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vs.
MEMORANDUM OPINION
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•

AND ORDER DENYING
MOTION FOR
PRELIMINARY INJUNCTION

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Respondent.
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DOUG WEBER,

Petitioner, John Graham (Graham), moves the Court to enter a preliminary injunction pro hi.biting
both counsel and parties to Graham's currently pending 28 U.S. C. § 2254 action from publicly commenting
on Graham's criminal conviction rendered in South Dakota's Seventh Judicial Circuit, Pennington County
for the murder of Anna Mae Aquash. For the following reasons, the requested reliefis denied.

BACKGROUND
In February 1976, the body of Anna Mae Aquash was discovered in a remote region of the
Badlands between Kadoka and Wanblee, South Dakota Thereafter, it was determined that Aquash had
died as the result ofa bullet wound to the head. In 2003, John Graham, a Canadian National, was charged
withAquash'smurderin United States District Court, District ofSouthDakota. Graham was extradited
in 2007. The charge was eventually dismissed in federal court for lack ofjurisdiction, but Graham was then
indicted in South Dakota state court on separate counts ofpremeditated murder and felony murder based
onkidnapping.AchargeoffelonymurderbasedonrapewasdismissedbytheStatepriortotrial. Graham
was found guiltyoffelonymurder predicated on the charge ofkidnapping and sentenced to life in prison
without parole. Presently, Graham is incarcerated in the South Dakota State Penitentiary.

Graham challenged his conviction in South Dakota court and was denied reliefon May 30, 2012.
A petition for habeas corpus was filed in the Seventh Circuit Court ofSouth Dakota on May 24, 2013,

which was denied. A motion for a Certificate ofProbable Cause was also filed with the South Dakota
Supreme Court on July 18, 2013, which was also denied. On September 17, 2013, Graham filed the
pending 28 U.S.C. § 2254 habeas corpus petition in federal court for the District of South Dakota.

On March 20, 2014, during the pend ency ofGraham's habeas corpus action, Attorney General
Marty Jackley spoke at Black Hills State University in Spearfish, South Dakota. The event was titled
"South Dakota Cold Case Study- the Murder ofAnnie Mae Aquash." It is this event, and a subsequent
similar event, that is the basis for Graham's requested relief. The event was promoted in the region with
various printed announcements. One such announcement read, "Prosecutors say Graham and two other
[American Indian Movement (AIM)] activists, Arlo Looking Cloud and Theda Clarke, killed Aquash in
December 1975 because they suspected she was a government informant." OnMarch24, 2014, counsel
for Graham wrote to Jackley requesting that Jackley refrain from publicly speaking about Graham's
involvement in theAquash case and ultimate conviction. The letter, in sum, requested that Jackley consent
to a self-imposed gag order on the parties. Jackley responded, rejecting the requested gagging and stating
that the speaking engagements were not improper.

InMarch2015, Jackley again spoke about theAquashcaseto a group ofsome40 attendees at
a benefit for the Casey Tibbs Rodeo Center Museum in Ft. Pierre, South Dakota. This event was reported
on in the Capital Journal published in Pierre, South Dakota. The Capital Journal reported that, while in Ft.
Pierre, Jackley spoke about Graham raping Aquash prior to him and other AIM members driving her to
the area in the Badlands where she was killed. The Capital Journal further reported that Jackley
commented on the suspected murder ofanother AIM activist, Ray Robinson, and that Graham may have
informationrelated to Robinson's death. Stephen Lee, Jackley: Aquash Case Might Help Solve Other

Cold Cases from

Wounded Knee, CAPITAL JOURNAL (March 2, 2015), available at

http://www.capjournal.com/news/jackley-aquash-case-might-help-solve-other-cold-casesfrom/article 4d07ablc-c164-1 le4-8994-2flbdl0207aa.html. Graham has moved the Court for a
preliminary injunction imposing a gag order on the parties, prohibiting them from speaking about the
Graham-Aquash case during the pendency of Graham's 28 U.S.C. § 2254 action.

2

DISCUSSION
I. Preliminary Injunction

"Defined broadly, a preliminary injunction is an injunction that is issued to protect plaintifffrom
irreparable injury and to preserve the court's power to render a meaningful decision after a trial on the
merits." 11A CHARLEsAlANWRIGHT,ETAL., FEDERALPRACTICE&PROCEDURE § 2947 (3d ed. 2014).
Indeterminingwhetherto grant a preliminary injunction a court considers (1) theprobabilityofthemovant's
success on the merits; (2) the threat ofirreparable harm to the movant; (3) the balance between this harm
and the injury that granting the injunction will inflict on other interested parties; and (4) whether the issuance
of the preliminary injunction is in the public interest. See Dataphase Sys., Inc. v. CL Sys., Inc.
(Dataphase), 640 F.2d 109, 114 (8th Cir. 1981) (en bane). The movant bears the burden of proof

concerning the four factors. Ge/co C01p. v. ConistonPartners, 811F.2d414,418 (8th Cir. 1987). The
court balances the four factors to determine whether a preliminary injunction is warranted. Dataphase,
640 F.3d at 113; West Pub. Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1222 (8th Cir. 1986). "A
district court has broad discretion when ruling on preliminary injunction requests[.]" Coca-Cola Co. v.
Purdy, 382 F.3d 774, 782 (8th Cir. 2004)(citing United Indus. Corp. v. Clorox Co., 140 F.3d 1175,

11 79 (8th Cir. 1998)). ''In balancing the equities no single factor is determinative.... In every case, it must
be examined in the context ofthe relative injuries to the parties and the public" Dataphase, 640 F.3d at
113.

Graham has failed to meet the threshold requirement that the requested injunctive reliefbear a
relationship to the underlying complaint. A preliminary injunction must be denied ifit is of a differing
character than that which may be finally granted after trial on the merits or when the preliminary injunction
contemplates matters unrelated to the underlying action. Devose v. Herrington, 42 F.3d 470, (8th Cir.
1994)(citingPennv. SanJuanHosp.,Jnc., 528F.2d1181, 1185 (10th Cir. 1975))("[A] partymoving

fur a preliminary injunction must necessarily establish a relationship between the iajury claimed in the party's
motion and the conduct asserted in the complaint."). See Wright, supra; Kaimowitz v. Orlando, Fla, 122
F.3d 41 (11th Cir. 1997), opinion amended on reh'g, 131 F.3d 950 (11th Cir. 1997) (preliminary
injunction denied as wholly unrelated to the underlying action); Redd v. Lutgen, No. C11-3046-MWB,
3

2013 WL5757864, at*2 (N.D. Iowa Oct. 23, 2013)(denyingapreliminaryinjunctionmeanttoreverse
an inmate's transfer from one facility to another as unrelated to the underlying alleged First Amendment
violation).

Redd v. Lutgen involved a request for a preliminary injunction from an Iowa inmate. The inmate-

movant, Redd, initially filed a complaint pursuant to 42 U.S. C. § 1983 against five individuals for an alleged
violation ofhis Free Exercise rights. As a result, Redd contended that he was repeatedly subjected to
facility transfers by prison officials. The transfers, Redd asserted, caused him injury due to the burden
placed on him and his family. Thereafter, Redd sought a preliminary injunction in order to return himself
from Fort Dodge to the Newton Correctional Facility. The court denied Redd's preliminary irtjunction The
Redd court reasoned that

[t ]he [relationship] requirement is necessary because the purpose of a preliminary
injunction is to impose a provisional remedy that will remain in place until the issues can be
decided on their merits at trial. This is precisely why one of the Dataphase factors
explores the probability that the movant will ultimately succeed on the merits. A preliminary
injunction that bears no relationship to the events alleged in the complaint would be
unworkable, as the issues giving rise to that injunction will not be addressed, let alone
resolved, at trial.
Redd, 2013 WL 5757864, at *3.

Graham's claims for reliefin his 28 U.S. C. § 2254 action are based on (1) extradition; (2) allegedly
erroneous jury instructions related to kidnapping; (3) an allegedly erroneous conviction under South
Dakota's felony murder statute; and (4) ineffective assistance ofcounsel. Application for Writ o ffiabeas
Corpus at 3, John Graham v. Doug Weber, 13-cv-04100 (Sept. 12, 2013 D.S.D.). Graham asserts,
however, that were a claim for defamation brought against Jackely, Graham would likely prevail That claim
is made with regard to probability ofsuccess on the merits, the first Dataphase factor. To the contrary, the
Court finds that the probability ofGraham succeeding on a libel claim against Jackley is very low, even
without considering any immunity issues. At this point, the South Dakota Supreme Court has twice affirmed
Graham's conviction. Truth is a defense to ahbel action. The other hbel claims not a part ofthe conviction
are not central to thehbelclaim. This is a28 U.S.C. § 2254 action, not a hbel suit. Were the proposed
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preliminary injunction granted, the issues that the injunction operated to stay would not be resolved by a
resolution ofthe 28 U.S. C. § 2254 action. Specifically, by the end o fthis action, whether or not Jackley
defamed Graham will not have been decided. Like theRedd court, the claims contained here in the habeas
claims and the injunction claims are wholly distinct from each other. Accordingly, Graham has failed to
prove that he is entitled to the preliminary injunction. While the Court does not corrnnent on the merits of
Graham's claim regarding his conviction, the preliminary injunction is denied.

II. Gag Order

The Court's analysis, however, must go further. While Graham is not entitled to the requested
injunctive relieffor a claimed hbei it is still necessary the Court decide ifa gag order should issue in order
to preserve Graham's fair trial rights as it is Graham's constitutional trial rights that he is seeking to protect,
not vindication for a claimed hbel.

GrahamcontendsthatRule3.6oftheSouthDakotaRulesofprofessionalConductmayandshould
be used to impose the gag order on parties to his 28 U.S.C. § 2254 action. Rule 3.6(a) reads,
A lawyer who is participating or has participated in the investigation or litigation ofa matter
shallnotmakeanextrajudicialstatementthatthelawyerknowsorreasonablyshouldknow
will be disseminated by means of public communication and ifthe lawyer knows or
reasonably should know that it will have a substantial likelihood ofmaterially prejudicing
an adjudicative proceeding in the matter.
South Dakota Rules ofprofessional Responsibility, R. 3. 6( a). "A gag order is a prior restraint on speech
and, as such, is 'the most serious and least tolerable infringement on First Amendment Rights."' United
States v. McGregor, 838 F. Supp. 2d 1256, 1260 (M.D. Ala. 2012) (quoting Nebraska Press Ass 'n
v. Stuart,427V.S. 539,559, 96 S. Ct.2791 (1976)). ''TheexerciseofFirstAmendmentrights, however,

can sometimes imperil the administration offair criminal trials." Id. (quoting United States v. Carmichael,
F. Supp. 2d 1267, 1291 (M.D. Ala. 2004)). Therefore, First Amendment rights "'may be subordinated
to other interests that arise' during a criminal trial." Id (quoting Seattle Times Co. v. Rhinehart, 467 U.S.
20, 32n. 18 (1984)). NeitherSouthDakotacourtsnortheEighthCircuithassquarelyruledon whether
Rule 3. 6, which closely tracks its American Bar Association (ABA) analogue, may be used to impose such
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a restriction on attorneys. This Court must therefore look to the Supreme Court and lower courts for
guidance.

A. The Supreme Court

The starting point for such an inquiry is Gentile v. State Bar ofNevada, 501 U.S. 1030, 111 S.
Ct. 2720 (1991), which involved Nevada's applicationofits versionofRule 3.6 to the discipline of an
attorney. The issue was whether lawyers, when subject to discipline, may insist on the same stringent First
Amendment standard afforded to the public and media or whether a State may punish speech by a lawyer
by meeting a lesser constitutional standard. The Court resolved the case in favor ofa lesser standard. In
Gentile, the petitioner, Gentile, wasamemberoftheNevadabar. He held a press conference shortly after

his client was indicted on criminal charges but six months before trial. The decision to hold the conference
wasaresultofmonitoringthepublicitysurroundingthecasepre-andpost-indictment.''Hedidnotblunder
into a press conference, but acted with considerable deliberation." Id. at 1042. Gentile delivered a
statement setting forth his opinion ofthe case and he responded to questions from the media The statement
illustrated Gentile's position that the State was using his client as a "scapegoat" to insulate the guilty parties:
the police department and its "crooked cops." Id. at 1034. The public was exposed only to the fraction
of Gentile's remarks that were disseminated in two newspaper stories and two television broadcasts.
Moreover, the information provided at the press conference had already been put into the public forum in
one form or another.

Gentile's client was eventually acquitted. Subsequently, the State ofNevada filed a complaint
against Gentile, alleging that he had violated Nevada Supreme Court Rule 177, which governed attorney
involvement in trial publicity. Similar to the South Dakota rule in issue here, the Nevada rule read, in
pertinent part, that an attorney is prohibited from making "an extrajudicial statement that a reasonable
person would expect to be disseminated by means of public communication ifthe lawyer knows or
reasonably should know that it will have a substantial likelihood ofmaterially prejudicing an adjudicative
proceeding." Id. at 1033 (quoting Nevada Supreme Court Rule, R. 177). Gentile was found by the
disciplinary board to have violated the rule and was disciplined accordingly. The Nevada Supreme Court
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affirmed. The United States Supreme Court, however, found that Nevada's application ofthe Rule in
Gentile violated the First Amendment and reversed the Nevada Supreme Court.

The Supreme Court noted that the speech in question was "directed at public officials and their
conduct in office." Id. at 1034. "Thejudicialsystem,andinparticularourcriminaljusticecourts, play a vital
part in a democratic state, and the public has a legitimate interest in their operations." Id. at 1035. With
these principles in mind, the Supreme Court held that the Nevada Rule and its ABA equivalent were not
categorically unconstitutional. Moreover, the Court ruled that the "substantial likelihood of material
prejudice" language, which is also found in the South Dakota rule, ''is not necessarily flawed" and meets
constitutional muster. Id. at 1036, 63. "[T]he 'substantial likelihood of material prejudice' standard
constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in
pending cases and the State's interest in fair trials." Id. at 1075. What courts must ensure, however, is that
the rule is applied "in a proper and narrow manner, ... " as a "necessary limitation[] on lawyers' speech."
Id. at 1036, 75. Thelimitsonalawyer's speech should be directed at ''two principal evils: (1) comments

that arelikelyto influence the actual outcome ofthetria~ and (2) comments that are likelyto prejudice the
juryvenire, even ifan untainted panel can ultimately be found." Id at 1075.

B. Lower Courts

While the Supreme Court's interpretation ofRule 3.6 was in the context ofexpostfacto lawyer
discipline, district courts have applied the Gentile rationale in the context ofgag orders. In United States
v. McGregor, 838 F. Supp. 2d 1256 (M.D. Ala. 2012), the government unsealed indictment information

against eleven defendants who were alleged to have participated in a bnbery conspiracy in order to pass
a Senate bill that would have legalized electronic bingo in Alabama. The case received amplified press
coverage due to both the high profile of the defendants and interaction with the media from both
prosecution and defense; The case became so ensnared in media coverage that, during the first trial, the
courtdesignatedanareaoutsidethecourthouseformembersofthemediaandinstructedjurorstoenter
and exit the courthouse through the other side ofthe building. At the conclusion ofthe first trial, the jury
found two defendants not guilty on all counts, but was unable to reach a verdict on all the counts for the
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remaining defendants. During retrial voir dire, much ofthe questioning centered on the potential jurors'
exposure to and knowledge about the first trial Prior to the retrial, however, the government had moved
for a gag order to be imposed on participating attorneys. The order would have imposed limitations on
neither the defendants themselves nor the media.

Decidingwhethertoissuethegagorder, theMcGregorcourtdiscussedthedichotomyofimposing
a restraint on the media versus an attorney. Lower courts have read Nebraska Press Ass 'n v. Stuart "as
establishing that there must be a clear and present danger ofprejudice before a court may issue a prior
restraint against the media." McGregor, 838 F. Supp. 2d at 1261 (internal quotations omitted). In the
context ofcircumscnbing attorney speech, however, Gentile pronounced ''that the appropriate standard
for the punishment of attorney speech was whether it presented a 'substantial likelihood of material
prejudice.'" Id. (quoting Gentile, 501 U.S. at 1075). ''Thus, regulating attorney speech requires 'a less
demanding standard than that established for regulation ofthe press ... '"Id. (quoting Gentile, 501 U. S
at 1074). "Any regulation imposed upon a lawyer[, however,] must benarrowlytailored." Id. (quoting
Gentile, 501 U.S. at 1075-76).

What the McGregor court dealt with was which standard to apply in the context ofa gag order
on attorneys o frecord in an action. The court ultimately favored the Gentile standard for four reasons:
(1) the gag order in issue was directed at all the attorneys ofrecord; (2) the Circuits that had opted to

adhere to the more rigorous Stuart standard had done so prior to the Gentile decision; (3) as was found
in Gentile, attorneys are agents ofthe court,justifying a lesser standard; and (4) the Gentile standard was
expressly adopted from the ABA and a majority o fstates' professional rules. Grounded in the foregoing
reasons, theMcGregorcourt fashioned a test that must be met in order to impose a gag order on attorneys:
"( 1) the attorney's speech presents a substantial likelihood ofmaterial prejudice to the proceedings; (2) the
proposed protective order is narrowly tailored; (3) alternatives to the protective order would not be
effective; and (4) the order would be effective in achieving the government's goal." Id. at 1262.

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Whileweighingthevariousinterests,theMcGregorcourtexplainedwhattheAlabamaBarmeant
to accomplish by adopting its version of Rule 3.6:
Preserving the right to a fair trial necessarily entails some curtaihnent ofthe information that
may be disseminated about a party prior to trial, particularlywheretrial byjury is involved.
Ifthere were no such limits, the result would be the practical nullification ofthe protective
effect of the rules of forensic decorum and the exclusionary rules of evidence.
Id. (quotingAla. R. Prof Conduct3.6Comments). Thecourtthenwentonto applythefourprongtest

to the facts presented. Much ofthat analysis was dedicated to a discussion ofwhat defense counsel's
statements entailed. See id. at 1265 ("[D]efense counsel opined on the credibility of witnesses and
speculated as to the government's trial strategy and jury deliberations .... The frequency, intensity, and
ubiquityofdefensecounsel'sremarksmadeitfarmoreprobablethatthejurywouldbecomeawareofthe
extrajudicial comments."). The district court ultimately found that the attorney's speech did present a
substantial likelihood ofmaterial prejudice, meeting the first prong ofthe above test. The court found
unpersuasive the notion that the attorney's extrajudicial comments were merely an exercise o fhis right-torespond to in-court testimony. "A right-to-respond to in-court testimony would eviscerate Rule 3. 6 by
allowing every defense attorney to 'respond' to any witness testimony with a news conference." Id. at
1265.

Next, the second prong ofbeing narrowlytailored was met as the proposed gag order applied only
to the attorneys ofrecord and did not pro hi.bit those attorneys from speaking about the "bare facts" ofthe
case to the media.

Third, the court found that the government had failed to meet the third prong. Specifically, the gag
order was not the least restrictive alternative. "The familiar list ofalternative options include: continuing or
transferring the case; sequestration ofthe jury; extensive voir dire; and emphatic jury instructions." Id. at
1266 (citing Gentile, 501 U.S. at 1075). "Neitherparty,[however,] requestedacontinuanceorchange-ofvenue due to trial publicity." Id. While discussing voir dire as an effective alternative, the court noted that,
due to the publicity surrounding the first trial and the overall prominence ofthe case for two years, "voir

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direwasespeciallysearching" at the retrial.Id. Lastly, theMcGregorcourt "found that attorney adherence
to Rule 3.6 was a less restrictive alternative to the government's proposed gag order." Id.

Fourth, the government's proposed action would not have been effective. Even without the
participation ofdefense counsel, ''the media still camped outside the courthouse, reported daily on the
proceedings, and continued the live blog of the witness testimony." Id.

Because the government's proposed gag order failed the last two prongs, the court declined to
grant the government's motion. Alternatively, in an effort to balance the attorneys' First Amendment rights
and the defendants' fair trial rights, the court instructed the attorneys to adhere to the commands of
Alabama Rule ofProfessional Conduct 3.6. The court felt confident that the attorneys were capable of
interpreting the Rule and applying it accordingly. "Because of their legal training, attorneys are
knowledgeable regarding which extrajudicial communications are likely to be prejudicial." Id. at 1267.

The United States District Court for the Eastern District ofPennsylvania was also faced with the
question ofwhether to impose a restriction on party attorney's speech, but in the context ofa civil action.
In Constand v. Cosby, 229 F.R.D. 472 (E.D. Pa. 2005), Constand alleged that Cosby, a well-known
celebrity, deceived her into ingesting a narcotic, which rendered her only semi-conscious. During her
inebriated state, Constand alleged that Cosby sexually assaulted her. Subsequently, Constand reported the
events to police, which she alleged resulted in Cosby and his representatives making false statements to the
media. Both Constand and Cosby sought orders from the court. Constand sought an order to keep
confidential prospective plaintiffwitnesses' identities. Cosby sought to prohibit the parties from disclosing
information learned in discovery outside ofwhat was necessary for litigation. Cosby's proposed order, in
effect, was a request for the court to issue a gag order on the parties, "prohibiting ... any extrajudicial
comments about any aspect of the case." Cosby, 229 F.R.D. at 474.

The Cosby court employed the Gentile rationale when it considered the proposed nondisclosure
order. In doing so, it stated that ''the Court must be convinced, not merely suspect, that there is a substantial
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likelihood that extrajudicial statements by counsel, in light ofthe circumstances ofthe case, will materially
prejudicethependingproceedings." Id. at475 (citing Gentile, 501 U.S. at 1075). The court then rejected
the proposed order for three reasons: (1) the breadth ofthe gag order to include parties and witnesses
raised constitutional issues that a restriction on only the lawyers would not; (2) the majority ofthe media
coverage revolved around the averments ofthe parties, which made silencing the lawyers outside ofthe
courtroom ineffective; and (3) lawyers' extrajudicial comments are policed by the Pennsylvania Rules of
Professional Conduct. It is the Rules, the court noted, specifically Rule 3. 6, from which the Supreme Court
derived the "substantial likelihood" standard in Gentile. Rather than impose the proposed gag order, the
court, "given the need for closejudicial superintendency," found "good reason to adopt Rule 3. 6 as a rule
ofprocedureapplicableto counselandenforcedbytheCourtin [the] case." Id. at477. The court held that
breachesofRule3.6wouldbepunishedpursuanttoRule16(f)oftheFederalRulesofCivilProcedureor
pursuant to the inherent power ofthe court to enter prophylactic orders protecting the right to a fair trial.
As such, monetary sanctions, referral to the Disciplinary Board, revocation ofpro hac vice status, or other

just punishment were possible sanctions for violations of Rule 3.6.

Ultimately, the Cosby court found that"[a]ttomeypublic speech is not always undesirable nor is
media attention always deleterious to the interest ofjustice. The lamp ofpublic scrutiny shining brightly over
the proceedings can assist the Court in reaching a just result under the watchful eye ofan informed public."
Id. at 4 78. Abuse ofthe same public scrutiny by counsel, however, can be abated byjudicial enforcement

of Rule 3.6, which is an effective alternative to a broad gag order.

C. Analysis
It is the "substantial likelihood ofmaterial prejudice" standard announced in Gentile that this Court

endorses and controls the case at bar. The standard has been endorsed bythe Supreme Court and various
lowercourts 1, see Gentile v. State Baro/Nevada, 501U.S.1030(1991); United States v. McGregor,

1

While the Supreme Court endorsed the "substantial likelihood ofmaterial prejudice standard,"
the Circuit Courts ofAppeals have not uniformly done the same. The Sixth, Seventh, and Ninth Circuits
apply the Stuart "clear and present danger" standard. See United States v. Ford, 830 F. 2d 596, 598
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838 F. Supp. 2d 1256 (M.D. Ala. 2012); Constand v. Cosby, 229 F.R.D. 472 (E.D. Pa. 2005); Niv v.

Hilton Hotels Corp., No. 06 Civ. 7839 (PKL), 2007 WL 2077003, at *2 (S.D.N.Y. July 18, 2007)
(holding that a court will enter an injunction limiting extrajudicial statements ifthe injunction is an effective,
least restrictiveremedy);Munozv. City ofNew York, No. 11 Civ. 7402 (JMF), 2013 WL 1953180, at
* 1 (S.D.N.Y. MaylO, 2013) (defendant failed to present evidence showing "'a substantial likelihood of
materiallyprejudicing"' animpartialtrial. .. )(quotingN.Y. Comp. CodesR. &Regs. tit. 22, § 1200.0).

But see Ruggieri v. Johns-Manville Products Corp., 503 F. Supp. 1036, 1039 (D.R.I. 1980) (applying
a "serious and imminent threat" test to the context of extrajudicial statements by attorneys), and the
language is contained in Rule 3. 6 o fSouth Dakota's Rules ofprofessional Responsibility. Thus, the Court
agrees with Graham regarding the proper standard to apply. Graham further asserts, however, that the
extrajudicial statements attributable to Jackley pose a substantial likelihood ofmaterially prejudicing the 28
U.S.C. § 2254 action. The Court does not agree.

Similar to the proposed order in Cosby, Graham is asking this Court to "enter a preliminary
injunction prolu.biting the parties and their counsel from publicly commenting on this case." Petitioner John
Graham's Brief in Support of His Motion for an Order to Restrict Pre-Trial Publicity at 4, Graham v.

(6th Cir. 1987); Levine v. United States District Court, 764 F .2d 590, 595 (9th Cir. 1985); Chicago
Council ofLawyers v. Bauer, 522 F.2d 242, 249 (7th Cir. 1975). The Third and Fifth Circuits have
adopted the Gentile "substantial likelihood" standard. See United States v. Scarfo, 263 F.3d 80, 94 (3rd
Cir. 2001); United States v. Brown, 218 F.3d415, 427 (5th Cir. 2000). The Fourth and Tenth Circuits
employ a ''reasonable likelihood" standard. See In re Russell, 726 F.2d 1007, 1010 (4th Cir. 1984);
United States v. Tijerina, 412 F.2d 661, 666 (10th Cir. 1969). The Circuits that did not adopt the
Gentile standard, however, did so prior to Gentile. Thus, it is reasonable to conclude that ifconfronted
with the scenario now, post-Gentile, those Circuits may adopt the "substantial likelihood" standard. The
remaining Circuit Courts have yet to rule on which standard to apply. The South Dakota Supreme Court
indicated its endorsement ofthe Gentile "substantial likelihood ofmaterial prejudice" standard by using that
languageinitsRulesofprofessionalResponsibility. SouthDakotaRulesofprofessionalResponsibility,R.
3.6(a). In U.S. v. Silver, No. 15-CR-93 (VEC), 2015 WL 1608412, at *7 (E.D.N.Y April 10, 2015),
the District Court refused to dismiss the indictment despite the targeted and inflammatory statements by the
.chiefprosecutor prior to indictment. In doing so, the court noted "that this is not a disciplinary proceeding
and thereforethe question ofwhether the U.S. Attorney's extrajudicial remarks violated any ethical rules
is not, per se, before the Court." Silver, 2015 WL 1608412, at *7.
12

Young, No. 13-cv-04100-RAL (D.S.D. March 18, 2015). Graham urges that the speaking engagements
ofAttorney General Marty Jackley pose a "substantial likelihood ofmaterially prejudicing an adjudicative
proceeding" in violation ofRule 3.6 ofthe South Dakota Rules ofProfessional Responsibility. While the
foregoing discussion o fcase law indicates that the Rule may be used as a basis for the imposition ofa gag
order, the various courtscitedhavealldeclined to do so. So too here, theproposedcourseofactionistoo
broad in scope.

Rule 3.6 is applicable to "[a] lawyer who is participating or has participated in the investigation or
litigationofamatter ... " SouthDakotaRulesofProfessionalResponsibilityR. 3.6(a). Clearly, the Rule
has application to South Dakota's Attorney General in this context. The ABA Rule, which the South
Dakota Rule emulates, was said by the Supreme Court to shield against comments likely to influence the
outcome of a trial by prejudicing a jury. Gentile, 501 U.S. at 1075 (limiting lawyer speech should be
directed at "two principal evils: (1) comments that arelikelyto influence the actual outcomeofthetrial, and
(2) comments that are likely to prejudice the jury venire, even if an untainted panel can ultimately be
found."). Graham's requested application here, however, is not sufficiently directed at these goals.

First, the relevant proceeding in question, as it is the only active adjudicatory proceeding, is not a
trial that is likely to be affected by extrajudicial statements. See Hirschkop v. Snead, 594 F.2d 356, 372
(4th Cir. 1979) ("Judges necessarily must consider evidence that has no direct bearing on the guilt or
innocence of the accused .... [If] this evidence is excluded, the judge must nevertheless adjudge the
accused to be guilty or innocent without considering the evidence which they have heard and held to be
inadmissible."). As this is a 28 U.S. C. § 2254 action, it is the presidingjudge who decides the outcome.
Part I., supra. The above cited cases came in the context ofjury trials and each requested gag order was
denied. The likelihood that extrajudicial statements ofthis nature may assail Graham's fair trial rights in the
present proceedings is so attenuated as to be beyond remote. Comment six ofthe South Dakota Rules is
illustrative on this point:
Another relevant factor in determining prejudice is the nature ofthe proceeding involved.
Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less
sensitive. Non-jury hearings and arbitration proceedings may be even less affected. The
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Rule will still place limitations on prejudicial corrunents in these cases, but the likelihood of
prejudice may be different depending on the type of proceeding.
South Dakota Rules ofProfessional Responsibility R. 3. 6 cmt. 6. Thus, this Court disagrees that
the publicity created a substantial likelihood ofmaterially prejudicing the pending, non-juzy adjudicatory
proceeding. Second, as was previously discussed, there is no jury component to the present action that is
inneed ofRule 3.6's protection. Graham urges as his principal claim that it is the possibility ofempaneling
ajuzy for a possible, futurejuzytrial that both implicates the Rule and otherwise warrants a gag order. None
ofthe previously discussed case law was in such a context, however. Again, the cases applying their own
versionofRule 3.6 were all in the context ofan imminent, ifnot always then active, trial. Here, however,
the trial concluded roughly five years ago. Imposing a gag order on all parties at this time contingent on the
possibility ofa future trial resulting from this proceeding is too causally attenuated. The Gentile Court found
unconstitutional the sanctioning ofa lawyer who had extrajudiciallycorrunented on the merits ofa case sixth
months prior to the trial. Accordingly, the extrajudicial statements in issue do not pose a substantial
likelihood ofmaterially prejudicing the pending 28 U.S. C § 2254 action or any retrial that could possibly
result from this pending action.

Grahamalsoarguesthatthegagorderisthemosteffective,narrowlytailoredmeansofcurtailing
the alleged prejudice. The sheer magnitude of public interest surrounding this case, however, belies
Graham's claims. Even in the absence ofJackley' s speeches, the public consciousness would hardly be
bereft o fother media centered on the events surrounding the slaying ofAnna Mae Aquash and Graham's
involvement. See e.g., Eric Konigsberg, Who Killed Anna Mae?, THE NEW YORK TIMES MAGAZINE
(Apri125,2014),availableathttp:llwww.nytimes.com/2014/04/27/magazinelwho-ki11ed-anna-mae.html;
Karen Fragala-Smith, More on the Life and Times of Anna Mae Aquash, THE NEW YORK TIMES
MAGAZINE(April30,2014),availableathttp:/16thfloor.blogs.nytimes.com/2014/04/30/more-on-the-lifeand-times-of-anna-mae-aquash/; Michael Donnelly, Getting Away With Murder: Killing Anna Mae
Aquash,

Smearing John

Trudell,

COUNlERPUNCH (January 17, 2006), available at

http://www.counterpunch.org/2006/01/17/killing-anna-mae-aquash-smearing-john-trudell/;JoHANNA
BRAND & WARREN ALLMAND, THE LIFE AND DEA1H OF ANNA MAE AQUASH {James Lorimer &
14

Company 2d ed. 1993) (1978). Thus, enforcing a restriction on parties and cowisel could scarcely be said
to be an effective means of curtailing speech unfavorable to Graham.

Moreover, imposing the gag order prayed for here would prohibit the speech in question for an
indefinite amount oftime. The public, however, has a legitimate interest in the functioning ofits criminal
justice system.

"Without publicity, all other checks are insufficient; in comparison ofpublicity, all other
checks are ofsmall account. Recordation, appeal, whatever other institutions might present
themselves in the character of checks, would be found to operate rather as cloaks than
checks; as cloaks in reality, as checks only in appearance."
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569, 100 S.Ct. 2814 (1980) (quoting 1 J.
BENTIIAM,RATIONALEOF JUDICIALEVIDENCE 524 (1827)).

The Richmond Court also observed that

"[w]hen a shocking crime occurs, a community reaction of outrage and public protest often follows.
Thereafter, the open processes ofjustice serve an important prophylactic purpose, providing an outlet for
community concern, hostility, and emotion." Richmond Newspapers, 448 U.S. at 571 (internal citations
omitted). Jackley's statements in issue occurred after his prosecution ofGraham was completed. From
what is contained in the record, the statements operated to educate the public on a topic it has been
interested in even prior to Graham's extradition from Canada The gag order, were it granted, would stifle
speech the public evidently desires to consider for an indefinite amount oftime and is contingent on a trial
that mayormaynot evenhappen. What is more, the gag order prayed for would apply to counsel and the
parties represented. As mentioned in the discussed case law, gagging non-attorneys raises additional
constitutional concerns and would implicate a higher level ofconstitutional scrutiny. The gag order, thus,
is not narrowly tailored to the facts ofthis case although this Court recognizes it could tailor a different gag
order. As theMcGregorcourt noted, courts have at their disposal means through which an impartial jury
may be empaneled despite extensive publicity: change ofvenue, continuation, jury sequestration, searching
voir dire, emphatic jury instructions, and admonishing counsel to adhere to the rules of professional
responsibility.

15

The Court denies the requested gag order as the extrajudicial statements in issue do not pose a
substantial likelihood of materially prejudicing the pending adjudicatory proceeding. In addition, the
statements at issue do not warrant a gag order to prevent possible prejudice in the event a retrial takes
place sometime in the future. Any prejudice from statements would have to be evaluated for their impact
at the time ofany future trial proceedings. Any present action based on the possibility ofa future trial at
some date well into the future is too speculative. Counsel remains at all times subject to the appropriate
Rules of Professional Responsibility. Accordingly,

IT IS ORDERED that Graham's Motion for Order to Restrict Publicity, Doc. 42, is denied.

Dated

this_£_

dayofOctober, 2015.

BY THE COURT:

United States District Judge

ATTEST:
JOSEPH HAAS, CLERK

By

~ PJ:t»""'Deputy

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