A capital murder defendant's legal effort to block the release of a movie about his case should fall afoul of the First Amendment even if a prosecutor collaborated extensively with the movie's producers.

Jesse James Hollywood is facing trial next year in Santa Barbara, Calif., for allegedly masterminding the kidnapping and murder of a 15-year-old boy in 2000. While Hollywood was a fugitive, Santa Barbara County Deputy District Attorney Ronald Zonen served as a “consultant” on “Alpha Dog,” a fictionalized account of the crime scheduled for release in January.

Earlier this month, a state appeals court found Zonen had a conflict of interest because of his involvement in the movie and kicked him off the case. Hollywood v. Superior Court

But that, apparently, hasn't satisfied Hollywood, who filed suit Oct. 27 for a court order enjoining Universal Studios from distributing “Alpha Dog” before his trial. “[T]he release to a national audience of the motion picture 'Alpha Dog,' whether fictionalized or not ... will irreparably harm the Plaintiff's ability to receive a fair trial,” the complaint says.

In Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), the U.S. Supreme Court described a prior restraint on speech as "the most serious and least tolerable infringement on First Amendment rights” and set an extremely high standard for a criminal defendant seeking to enjoin a fact-based production.

“Billionaire Boys Club” murder defendant Joe Hunt, among others, has failed to meet that standard. The 9th U.S. Circuit Court of Appeals said he had not shown that, without a prior restraint, he could not find an impartial jury and that measures available to the trial court such as voir dire or a change of venue would not protect his rights. Hunt v. NBC, 872 F. 2d 289 (1989).

Hollywood appears to be pinning his hopes for relief on the theory that “Alpha Dog” is little more than an expression of Zonen's view of the abduction and murder of Nicholas Markowitz.

“'Alpha Dog' could not have been made without Deputy District Attorney Ron Zonen's 'consultation,'” he claims, and the film “so closely resembles” the prosecutor's views and theories that

the public will be aware that the fictionalized motion picture is based on the true life events surrounding Plaintiff's alleged involvement [in the Markowitz case].

But while “Alpha Dog” writer-director Nick Cassavetes hasn't used the names of real people –- Hollywood being transformed into “Johnny Truelove” -- he has made no secret of the true-life inspiration of the movie.

The jury pool for Hollywood's trial in Santa Barbara County, moreover, is far larger than “the relevant venues in Nebraska Press,” and, like the venue for Hunt's trial,

is the type of populous, heterogeneous metropolitan area where prejudicial publicity is less likely to endanger the defendant's right to a fair trial.

By Matthew Heller
10/29/06