Cyrus Zal v. Cecil Steppe, Warden Attorney General of the State of California

concurring.

I concur in Judge Farris’ opinion. However, I feel compelled to add a few words about what I see as the two central issues in this case: the Sixth Amendment “right” to jury nullification of the law, and the First Amendment “right” of an attorney (or his client) to speak freely in a courtroom. I conclude that clients have no right to jury nullification, and that lawyers have no independent First Amendment rights in the courtroom.

Zal claims the trial court’s order violated his clients’ Sixth Amendment rights, both to a jury trial, and to effective assistance of counsel. He argues he had a right to disobey the court order because his clients had a right to explain themselves (through Zal) to the jury. Judge Noonan’s concurring and dissenting opinion picks up on this theme as well:

Judge Noonan’s opinion at 934 (emphasis added). I have two main disagreements with this argument.

First, the argument simply fails to come to grips with Zal’s admitted central purpose: to brush aside the court’s rulings on the precluded defenses and to prevail wrongfully on the jurors to exercise their illegitimate power of nullification. Such a fundamentally lawless act in a court of law…

concurring in the result in part and dissenting in part:

This difficult case presents serious questions as to the professional duties of a lawyer in court, the First Amendment, the Sixth Amendment, and the breadth of a contempt order. I concur in part in the judgment, and write separately because of some difference in my perspective and analysis from that of my two brothers.

The Order Violated

To begin with, so far as I can see, Cyrus Zal was in violation only of the in limine word-ban of the municipal court. He did not present a necessity defense and after the municipal court ruled on January 19, 1991 that a mistake of fact defense was the equivalent of a necessity defense, he did not persist in presenting this defense. Eight times he used phrases that alluded to the abortion issue but were not on the list of forbidden words. I question whether these, indirect allusions to abortion fell within an order which, for criminal purposes, should be strictly construed. This language had not been made punishable. The municipal court chose to rule in terms of words. It could not extend its prohibition by analogy.

Zal did violate the word-ban thirteen times by using forbidden words. I…

Cyrus Zal, an attorney, appeals the district court’s denial of his habeas corpus petition, which challenged his state court contempt citations for violating the trial court’s evidentiary orders. Zal argues that the citations are void because the orders violated his First Amendment rights, his clients’ Sixth and Fourteenth Amendment rights, and the Fifth and Fourteenth Amendment rights of the unborn. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 (1988) and 2253 (1988). We affirm.

FACTS

Zal represented seven abortion protestors who were charged with criminal trespass. During in limine proceedings, the trial court excluded the defenses of: (1) necessity; (2) defense of others; (3) compliance with international law, treaties, or declarations; and (4) mistake of fact. The judge also ordered him not to use the following words, which were linked to the excluded defenses:

Although the record does not contain the trial court’s orders, which apparently were made orally, Zal has provided a list and counsel for California has not disputed any word on the list, either in their brief or at oral argument. We assume that the list is accurate.

Despite the court’s evidentiary orders and…

968 F.2d 924 61 USLW 2062 Cyrus ZAL, Petitioner-Appellant, v. Cecil STEPPE, Warden; Attorney General of The State of California, Respondents-Appellees. No. 91-55579. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 7, 1992. Decided July 1, 1992. As Amended July 31, 1992. Stephen E. Hurst, The Rutherford Institute of California, Cyrus Zal, Encinitas, Cal., pro per., for petitioner-appellant. David Florance, Deputy County Counsel, San Diego, Cal., for respondents-appellees. Appeal from the United States District Court for the Southern District of California. Before: FARRIS, NOONAN, and TROTT, Circuit Judges. FARRIS, Circuit Judge: 1 Cyrus Zal, an attorney, appeals the district court's denial of his habeas corpus petition, which challenged his state court contempt citations for violating the trial court's evidentiary orders. Zal argues that the citations are void because the orders violated his First Amendment rights, his clients' Sixth and Fourteenth Amendment rights, and the Fifth and Fourteenth Amendment rights of the unborn. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 (1988) and 2253 (1988). We affirm. FACTS 2 Zal represented seven…