WEST PALM BEACH, Fla. – A California defense attorney will be allowed to continue as lead counsel for a Boynton Beach woman who is accused of hiring an undercover police officer to kill her husband, but the lawyer will have to do so without making "extrajudicial statements" that could tarnish his client's upcoming third trial, a South Florida judge concluded Friday.
Palm Beach County Judge Glenn Kelley opted against revoking the "pro hac vice" status that has allowed Brian Claypool to represent Dalia Dippolito in her murder-for-hire retrial. "Pro hac vice" is a Latin phrase meaning "for this occasion."
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Prosecutors filed a motion last month asking Kelley to revoke his status and barring the defense team from making improper statements before Dippolito's third trial, which is scheduled to begin June 2.
Kelley wrote that Claypool's comments "crossed the line between mere commentary on the case to comments giving rise to a potential violation" of the Florida Bar Rules of Professional Conduct.
"Many of Mr. Claypool's recent statements attacking the prosecution approach a similar line," Kelly wrote.
Kelly pointed to Claypool's closing argument as an example.
"Asking a jury to return a criminal defendant to her family is a direct appeal to sympathy," Kelley wrote. "Such a comment invites the jury to decide the case based on emotion and not on the evidence, lack of evidence or the law. Mr. Claypool, as an experienced trial attorney, clearly knew that such a comment was improper."
File: Order on state's motion for revocation of 'pro hac vice' status
But, Kelly said, the removal of a client's chosen legal counsel "is a drastic remedy which must be used sparingly." Kelley said there are other "less drastic" remedies to address the prosecution's concerns.
Kelley also prohibited all attorneys from making any extrajudicial statements, including references of the evidence and facts in the case, the motive for the state in prosecuting the case, references to Dippolito's sentence after her first trial, theories of the case or disparaging remarks directed at any attorney of record in the case.
The judge cited the national media coverage of the case as his reason for ruling.
"In most cases, commentary on collateral matters, or on the case itself, would not pose an imminent threat to a fair trial," Kelley wrote. "However, as already discussed, the level of media coverage of this case has been, and continues to be, extraordinary."
Dippolito, 34, is accused of paying an undercover police officer, who was posing as a hit man, to kill her husband in 2009. The Boynton Beach Police Department staged a crime scene and recorded her reaction on the day her husband was supposed to be killed.
She was convicted of solicitation to commit first-degree murder in 2011 and was sentenced to 20 years in prison. The Fourth District Court of Appeal, however, reversed the conviction in 2014.
Prosecutors alleged that Dippolito offered an undercover officer $7,000 to kill her then-husband.
Defense attorneys claimed that the Boynton Beach Police Department wanted to gain attention by soliciting the "Cops" television show and violated Dippolito's constitutional rights by setting her up with the help of former lover Mohamed Shihadeh, who became a confidential informant for police.
Her second trial last year ended in a mistrial, with the jury deadlocked 3-3.
Claypool, who agreed to represent Dippolito pro bono, is not licensed to practice law in Florida but was granted special permission to appear in court by Kelley, who can revoke the status at any time.