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Peinovich - Supplemental Memo in Support of Objections to Magistrate Report (Kaplan)

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2nd draft, much better.
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  UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA CHARLOTTESVILLE DIVISION ELIZABETH SINES, ET AL., Case No. 3:17-cv-00072-NKM Plaintiffs, Hon. Norman K. Moon v. JASON KESSLER, ET AL., Defendants. DEFENDANT MICHAEL PEINOVICH’S (1) SUPPLEMENTAL MEMORANDUM IN FURTHER SUPPORT OF HIS OBJECTIONS TO MAGISTRATE JUDGE’S MARCH 22, 2018 ORDER AND (2) EMERGENCY MOTION TO REQUIRE REMOVAL OF INFLAMMATORY AND PREJUDICIAL VIDEO POSTED BY ROBERTA KAPLAN Defendant Michael Peinovich, pro se, respectfully submits the following: (1) a supplemental memorandum in further support of his objections to Magistrate Judge Hoppe’s order issued on March 22, 2018 denying Peinovich’s motion to restrain Roberta Kaplan, Esq. and Kaplan and Company LLP from improper and unethical extrajudicial statements and for sanctions, and (2) an emergency motion to require Ms. Kaplan to remove an inflammatory and  prejudicial video that she, or persons or entities under her control, posted to the Internet on or about June 21, 2018. Ms. Kaplan’s posting of this jury-tainting video after the close of briefing in this matter, and -- disrespectfully to the Court -- while a decision from the Court was pending, has necessitated this supplemental memorandum and emergency motion. 1  ARGUMENT In brief summary, the subject of Peinovich’s objections here encompasses Ms. Kaplan’s unethical, multifaceted pretrial publicity campaign and her repeated efforts to undermine the rights of the defendants, including Peinovich, to a fair trial in this emotion-laden, controversial litigation. Ms. Kaplan’s publicity campaign has included linking the defendants to Nikolas Cruz, a mass murderer; invoking the Jewish holiday of Purim to stir up religious antipathy toward the defendants; and attributing offensive social media posts by unknown persons to the defendants. Among the arguments Ms. Kaplan has proffered to justify her actions are that no ethical rules restrain her and that Peinovich has not shown that her publicity maneuvers have any tendency to reach the Western District of Virginia. Peinovich’s briefs explain the fallacious nature of these arguments. Ms. Kaplan’s outrageous June 21, 2018 video, posted to a Facebook page entitled “Now This Politics” (https://www.facebook.com/NowThisPolitics/videos/2114525281912284/) and to a similar Twitter account (https://twitter.com/nowthisnews/status/1009496855166705665)  brings the fallacies of her arguments into even sharper relief and unmasks her true motives. As noted in Peinovich’s prior briefs, New York and ABA Ethical Rule 3.6 provide a limited safe harbor for pretrial publicity, allowing litigants to state “the claim, offense or defense and the identity of the persons involved . . . [and] information contained in the public record.” Ms. Kaplan’s June 21, 2018 video makes a mockery of that safe harbor. Plaintiffs’ bogus legal theory is that the defendants can be held liable for civil rights conspiracy for “organizing” the Charlottesville rally, a rally which was permitted by this Court. Consequently, a critical factual issue under plaintiffs’ theory, hotly contested by Peinovich, Spencer, and other defendants, is who were the “organizers” of the rally. But Ms. Kaplan in her video has resolved that issue for 2  the public. She states unequivocally that Richard Spencer was an organizer; she even shows a video clip of him standing in front of people, pointing to images on a wall. The clip in question is from a public press conference held by Mr. Spencer well after August 12, and thus could not  possibly show Mr. Spencer planning a secret conspiracy, despite the clear implication by Ms. Kaplan that this is precisely what it shows. The images Mr. Spencer is pointing to have not been admitted into evidence in this case, and have no chance of ever being so admitted. Kaplan also lets the public know that other currently contested factual matters are not actually contested, simply because she says so: Heather Heyer was murdered; the defendants carefully planned the Charlottesville violence; the defendants, i.e., all of them, including Peinovich and Spencer, coordinated what weapons to bring, what uniforms to wear, what commanders to follow, and who would be the targets of their “racially motivated violence.” All of these matters are still  before the Court, but Ms. Kaplan intentionally obscures this fact for the public, presenting her side of things as indisputable truth for which she is seeking just retribution. Ms. Kaplan’s presentation is done against a background of sombre, spooky music and is interspersed with scenes of hooded klansmen marching and burning crosses. Featured  prominently are shots of a man holding a Nazi swastika flag, yet this unnamed person is not a defendant in this case and there is no allegation of any connection between this man and any defendants. All of this is meant to lead the viewer to only one possible conclusion: her client’s claims are 100% valid; the KKK Act prohibits exactly the kind of “conspiracy” that the defendants engaged in; the defendants are evil, hateful, guilty people. It bears emphasis in this regard that New York Rule 3.6 states: “A statement ordinarily is likely to prejudice materially an adjudicative proceeding when it refers to a civil matter triable to a jury . . . and it relates to: (1) 3  the character, credibility, [or] reputation of a party . . . or the identity of a witness or the expected testimony of a party or witness . . . (5) information the lawyer knows or reasonably should know is likely to be inadmissible at trial and would, if disclosed, create a substantial risk of prejudicing an impartial trial.” Ms. Kaplan’s video is hugely prejudicial by this standard or any other reasonable standard. To demonstrate that the video’s prejudicial effect is not merely theoretical, here is a small sample, in no particular order, of public comments left by Facebook and Twitter users after viewing it. 4
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