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Lessons for Today’S Lawyers and Judges

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Lessons for Today’S Lawyers and Judges 2015 NJSBA Annual Meeting Special Interest Track Joan of Arc, The Dreyfus Affair, Jean Valjean and a Tale of Two Cities: Lessons for Today’s Lawyers and Judges Moderator/Speaker: Chief Justice James R. Zazzali (Ret.) Gibbons, PC, Newark Speakers: Justice Jaynee LaVecchia Supreme Court of New Jersey Hon. John E. Keefe, Sr. (Ret.) Keefe Bartels, LLC (Red Bank) © 2015 New Jersey State Bar Association. All rights reserved. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to the New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey 08901-1520. The material contained in these pages is for educational purposes only and not intended as a substitute for the professional services an attorney would normally provide to a client, including up to the minute legal research. THE DREYFUS AFFAIR Chronology 1889 Alfred Dreyfus is promoted to captain of the 21st Artillery Regiment. Collapse of the Panama Company, a state-sponsored company raising funds to build a canal across Panama. Thousands of investors lose their assets. 1892 Drumont founds La Libre Parole, an extremist newspaper which publishes articles attacking Jewish officers in the French military and blaming Jews for the Panama scandal. Dreyfus completes his training at the Ecole superieure de guerre, ranking 9th out of 81 officers. 1894 Mid-late September: A list of military secrets (later known as the bordereau) iis intercepted at the German embassy. October 6: Dreyfus falls under suspicion as the author of the bordereau. October 15: Dreyfus is accused of high treason and arrested December 19-22: Dreyfus's first court-martial held in closed session. Dreyfus is sentenced to perpetual deportation. 1895 January 5. Military degradation of Dreyfus in the courtyard of the Ecole Militaire. April 14. Dreyfus is placed in solitary confinement on Devil's Island. July 1. Lieutenant Colonel Georges Picquart is appointed Chef du service des renseignements (Head of the Intelligence Service). 1896 March. Picquart receives a document revealing Major Marie Charles Ferdinand Walsin Esterhazy as a German spy. September. Generals Billet and Gonse refuse Picquart's plan to question Esterhazy. November. Major Henry, who had condemned Dreyfus at the trial, forges documents in order to incriminate Dreyfus and discredit Picquart. 1897 June 20-29. Picquart returns to Paris, communicates details about Dreyfus's innocence to his lawyer. October. Vice-President of the French Senate, Auguste Scheurer-Kestner, begins a campaign to reopen the Dreyfus investigation after becoming convinced of Dreyfus's innocence. October 23. Senior French officers warn Esterhazy that accusations will soon be made public against him. November 16. In an open letter to General Jean-Baptiste Billet published in Le Figaro, Mathieu Dreyfus denounces Esterhazy as the author of the bordereau. December 31. An Army investigation clears Esterhazy, who asks for a court martial. 1898 January 10-11. Esterhazy is tried and acquitted by court-martial. January 13. Emile Zola becomes a defender of Dreyfus. Zola's "J'Accvse" is printed in Georges Clemenceau's L'Aurore. Picquart is arrested and sent to prison. January 17. Beginning of anti-semitic riots in France and Algeria. #2147931 v1 099998-00047 February 7-23. Trial of Emile Zola, for libel; he is convicted and sentenced to one year in prison and tine. February 26. Picquart is dismissed from the army. April 1. Formation of the Ligue des droits de l'homme et du citoyen by Dreyfus defenders. April 2. The Zola verdict is annulled. May 22. Prominent Dreyfusards are defeated in national elections, while antisemitic candidates gain seats in the Chamber of Deputies. July 13. Picquart is arrested for divulging secret military documents. July 18-19. Zola is convicted again of libel; he flees to England. August 13. Major Henry's forgery of a key document discovered. August 24-27. Esterhazy appears before a military board of inquiry and reveals details of his activities. August 30-31. Major Henry confesses to the forgery and commits suicide. September 1. Esterhazy flees to England. October 27-29. The Chambre Criminel accepts petition of Dreyfus’s wife for a review of the case against Alfred. 1899 May 29-June 3. The Combined Chambers of the Supreme Court of Appeal hear Dreyfus's appeal for a new trial. The court annuls the 1894 verdict and orders a new court martial to be held in Rennes. June 3. Esterhazy confesses to authorship of the bordereau, stating that he was under orders from a member of the General Staff to do so in order to prove that Dreyfus was a traitor. June 5. Emile Zola returns to France. June 9. Dreyfus sails for France; Picquart is freed from prison. August 7 — September 9. Court-martial in Rennes. Dreyfus is found guilty(!) with extenuating circumstances and sentenced to 10 years detention. September 19. President Emile Loubet signs an order of pardon for Dreyfus. September 20. Dreyfus is released from prison. 1902 September 29. Emile Zola dies. 1903 April 6-7. Jean Jaures, a representative in the French Parliament, appeals in the Chamber of Deputies against the court - martial condemnation at Rennes. October 19. After an investigation, the Minister of War, General Louis-Joseph Andre, discovers further evidence of Dreyfus's innocence. November 26. Dreyfus petitions for retrial. 1906 July 12. The Court of Appeals annuls the Dreyfus verdict. July 13. Parliament votes to reinstate Dreyfus as a captain. July 21. Exoneration of Dreyfus. He is named a Chevalier of the Legion of Honor in a ceremony at the Ecole Militaire. 1908 June 4. Zola's ashes are transferred to the Pantheon. During the ceremony, Dreyfus is shot and wounded by Louis-Anthelme Gregori, an admirer of Drumont. 1998 January 13. A commemorative plaque honoring Dreyfus and Zola is unveiled at the Ecole Nlilitaire. (It only took a century.) #2147931 v1 099998-00047 RPC 3.6. Trial Publicity (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. (b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense, or defense involved and, except when prohibited by law, the identity of the persons involved; (2) the information contained in a public record; (3) that an investigation of the matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. Note: Adopted July 12, 1984, to be effective September 10, 1984; paragraph (b)(1) amended October 1, 1992, to be effective immediately; paragraph (a) amended, paragraph (b) deleted and restated in Official Comment, paragraph (c) amended and redesignated as paragraph (b), and new paragraph (c) adopted November 17, 2003 to be effective January 1, 2004. Official Comment by Supreme Court (November 17, 2003) A statement referred to in paragraph (a) ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates to: (1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness other than the victim of a crime, or the expected testimony of a party or witness; (2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement; (3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented; (4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; (5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would, if disclosed, create a substantial risk of prejudicing an impartial trial; or (6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty. Definition of Judicial Independence The phrase “judicial independence” is sometimes used as a rhetorical device to suggest that judges, their decisions, or the judiciary as an institution, are not subject to criticism or to democratic accountability; others use the phrase to suggest that the concept represents nothing more than judges trying to advance their own economic self-interest.
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