Mr. Brafman’s Letter Plainly Reflects A Misunderstanding Of How First Amendment Law Works.

In fairness, he is to be forgiven — as he is used to operating under the criminal law rubric — where if the law doesn’t explicitly require (or prohibit) a series of events, his clients would likely be acquitted.

And with all due deference to R West here, I do not think the arguments advanced will carry the day (though they are generally spot on with the ones you offered over the weekend, in comments).

Boiled down, he simply says (in a two page PDF) that First Amendment jurisprudence does not require the release of the names.

But that isn’t how the amendment works. It says unless a specific danger or harm is outlined, by competent evidence (which per force would require suggesting that Mr. Shkreli would be dangerous, in possession of the names)… the press is presumed to have the right to report on matters of public concern, in the criminal justice system, without restraint of any kind. “Congress shall make no law…” in the preamble  to the amendment means what it says.  And the same applies… to judges.

So Judge Matsumoto is likely to grant the access to the list of names. If nothing else, the world should know whether any jurors felt bullied by other jurors to acquit  (on some charges) — and if so, by which ones.

Same way as to convicting — but I think that unlikely given the way the verdict was handed down.

I also wonder whether — when the jurors are named — Mr. Brafman may be a little worried that some miscreant Shkreli acolyte will harm one of them. But he cannot say so, by letter — and he cannot admit that many of the rest of these posts and comments here reflect that his followers may be a continuing danger to lawful, orderly liberty, in our society.

Should (God forbid) something happen — it will be relevant to sentencing of Mr. Shkreli — unless Brafman can distance this convict from all his prior postings in public.



8 thoughts on “Mr. Brafman’s Letter Plainly Reflects A Misunderstanding Of How First Amendment Law Works.

  1. R West says:

    It’s a little hard to figure out where Brafman is going with his letter. It seems pretty clear he’s laying the groundwork for an appeal, but it’s funny he doesn’t mention an appeal. Why didn’t he say, this will prejudice our second trial, if granted? He’s got to have some strategy in mind, but it’s puzzling … for sure!

    Liked by 1 person

    • condor says:

      I hear you, R West — I do think he’s on the horns of a dilemma — of his client’s making.

      Absent a showing that jurors would be in danger (which claim would certainly point right back at Mr. Shkreli’s encouragement of violence by his minions), there is almost no case authority for blocking press access, here.

      So — even if the juror interviews might prejudice some future mythical second trial set of juror candidates… Mr. Shkreli has already done far worse with his execrable on the record remarks — about female journalists.

      So — in sum: there will be scant basis for any appeal where the jury found some of the charges not proved (very different than actual innocence); and found some proved.

      I think he’s in a real pickle. One his own client makes worse, day by live streaming day.



      • R West says:

        New theory emerges: No doubt Brafman very shrewd … I think he wants his request to be denied, so he didn’t make his argument compelling. Then if he gets the second trial, he’s going to ask for a change of venue to upstate New York where the Trump supporters are. BUT the Judge, realizing she’s about to step into a trap, will probably grant his request to keep the jurors’ names sealed!

        Liked by 1 person

      • condor says:

        Hmmm… I don’t see it. Seems that Occam’s Razor applies here — the simplest answer is likely to be the correct one: there is little to no law to support suppressing a free press.

        I think Marty said he wants jurors to remain anonymous; and agreed to pay for the letter brief; but likely Mr. Brafman told him it would be a loser, given the judge’s earlier ruling(s).

        Now we wait for her order.



      • bmartinmd says:

        My impression (and it’s hard to get a read of the defense’s real motive here) is that Brafman et al don’t want the jurors to have an opportunity to say publicly that they found the defendant’s in-court personality off-putting, but that they were able to lay that aside for their verdicts–both guilty and not guilty. An admission like that from the jurors might undermine any argument of jury prejudice during an appeal of the guilty verdicts.

        The only grounds for appeal that I see is the fact that the defense didn’t put on one–ie, Shkreli received an “inadequate defense”!

        Liked by 1 person

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