Tuesday, December 16, 2008

What can a prosecutor say to the media?

Rumpole takes state prosecutor David Waksman to task for his comments to the press after a not guilty by reason of insanity verdict, which raises the question about what prosecutors can say to the press. This NY Times editorial addresses the recent comments by Patrick Fitzgerald in the Gov. Blago fiasco. It starts out laying out the basic standards for prosecutors:

Prosecutors have a special place in our criminal justice system. The American Bar Association’s Model Rules of Professional Conduct note that a “prosecutor has the responsibility of a minister of justice and not simply that of an advocate,” and therefore owes a “special duty” to the court.
The United States Court of Appeals for the Ninth Circuit has emphasized that “a prosecutor has a special duty commensurate with a prosecutor’s unique power, to assure that defendants receive fair trials.” Another United States Court of Appeals has observed that “prosecutors sometimes forget that the prosecutor’s special duty is not to convict, but to secure justice.”

Does this apply to high profile cases?

There is no question that these principles extend to public statements, particularly in high-profile cases that engender public interest and press coverage. The obvious risk is that a prosecutor’s statements outside the courtroom, particularly statements that pillory a defendant, will taint the pool of prospective jurors and make it less likely that a defendant can receive a fair trial. For this reason, and also because it is fundamentally fair to do so, courts limit the prerogatives of lawyers, particularly prosecutors, to make public statements about pending cases.

So what did Fitzgerald say?

Against this backdrop, it is hard to feel comfortable with Mr. Fitzgerald’s remarks in announcing the charges that Mr. Blagojevich’s conduct amounted to a “political corruption crime spree” and “would make Lincoln roll over in his grave,” that “the breadth of corruption laid out in these charges is staggering,” that Mr. Blagojevich “put a ‘for sale’ sign on the naming of a United States senator” and that his conduct was “cynical” and “appalling” and has “taken us to a truly new low.”

To conclude:

This is not to express an opinion, one way or another, about Mr. Blagojevich’s guilt or innocence. But he is entitled to a fair trial, and it is hard to escape the conclusion that such a trial has become less likely as a result of these public remarks by this otherwise very competent and effective prosecutor.
In 1935, in a case read by virtually every law student since, the Supreme Court issued an eloquent statement of the special role of prosecutors:
“The United States attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
As able a courtroom lawyer as Mr. Fitzgerald is, he — indeed, all prosecutors — might consider limiting pejorative characterizations of a defendant to open court, after the jury is in the box.

The Waksman comments are less problematic because they were after the jury reached its verdict. And Rumpole's commentors raise some pretty good defenses for Waskman. But can anyone defend Fitzgerald's comments?


Anonymous said...

Fitzgerald is a media whore. No defense.

Rumpole said...

When watching Fitzgerald I was thinking to myself that he was really stretching the bounds by the statements he was making.

Anonymous said...

Any public complaining by a prosecutor post verdict is unseemly. The most elegant response in recent memory regarding a loss came from Michael Jackson prosecutor, Thomas Sneddon, Jr., who said:

"In 37 years, I have never quarreled with the verdict of a jury, and I'm not going to quarrel with this one today."

That kind of class is hard to find in the southern district of Florida.

South Florida Lawyers said...

The thing that struck me as I heard Fitz is, if the evidence is as strong as it appears, why all the bombast?

I love that Sneddon quote.

Anonymous said...

Interesting that Fitzgerald's comments in the Blago case are getting so much criticism. Where was the New York Times when Fitz was making prejudicial comments about Scooter Libby?

Oh, nevermind.

Rumpole said...

Doesn't that Sneddon quote make you want to have the same type of class in those difficult moments we all experience in and out of court? Well done.

Anonymous said...

The quote should make the US Attys office here hang its head in shame.

Anonymous said...

Congrats to South Florida being named the number 2 judicial hellhole in the country!

South Florida
The collective reputation for excessive awards and plaintiff-friendly rulings make Miami-Dade, Palm Beach and Broward counties a proverbial launching pad for class actions, dubious claims and novel legal theories. While some judges in West Virginia and other perennial Hellholes have shown determination to make progress, too many judges in South Florida continually allow the plaintiffs' bar to push the envelope of civil justice. And with the state's high court as unpredictable as it is, there's no confidence that improper trial court rulings will be corrected on appeal.

Any guesses as to No. 1?


Anonymous said...

If you define a hellhole as a place where the common man can seek protection and redress from wrongdoers; a place where punitive damages can be awarded so that evildoers take second thought the next time they consider selling a car with an exploding gas tank; and, a place where an injured plaintiff who suffered as a result of a terrible infection caused by a doctor who left a sponge in his belly can recover for the doctor's negligence and thus (1) be made whole...er and (2) cause the doctor to check a patient before sewing the next one up...then I say I am glad to be here.

Better than your view of heaven where money means power and influence.

Anonymous said...

Never thought much of David Waksman, or any other state prosecutor, especially Ms. Reno.

Just in - Jeffrey SLoman will be the next US Attorney S D Fla.

Rumpole said...

That's kind of funny Ed because over here we think of Feds in a similar manner. I seem to remember one Fed prosecutor- a real hot shot-last name of ummm Gregory. He came over to the State Attorneys Office. Tried three cases. Lost two of them. And ran right back to fed court where the deck was stacked to his satisfaction. Seems he couldn't handle all the discovery issues and cases where the defense had time and information to prepare.

Anonymous said...

Hey Rumpole. Cannot defend that dude. In fact you did not need to even mention his name. I would have known who you meant since I worked with him on coupla cases. We do agree on some things. We should meet for drinks. Bring chicks (nonlawyers).

Anonymous said...

Rumpole is a chick.

99% of Federal Prosecutors in the SD of Fla. would get tore to shreds by the most meager public defender in State Court....

FP -- What do you mean I have to turn over evidence that somebody else committed the crime?

Judge -- Haven't you heard of Brady?

FP -- The Government, oh I mean State, will comply with all of its Brady obligations.

Judge -- What do you think that means?

FP -- I don't know, they don't train us on that where I came from...I haven't gotten to reading the case yet.

Judge -- Well, you need to turn over stuff like that.

FP -- Then how will I win?

Rumpole said...


Anonymous said...

The quality of the AUSAs has diminished in the last 5 years, no doubt. Some, like all lawyers, cannot be trusted to be honest about the day of the week. But, there are many good trial lawyers in the office whose word is good as gold. They bemoan their fate daily, being surrounded by know nothings who blindly listen to agents like they know what they are talking about and force pleas un the Guidelines with extrinsic pressure. As for Brady, that kind of evidence really doesn't exist in most Federal prosecutions under the horrible case law. And, as I said, Jeff Sloman or John O'S for US Atty. Not some dopey Democrat politician type who was a poor excuse for an AUSA an hour or two in a prior life.

Rumpole - you're a chick? Bourbon or Scotch?

Anonymous said...

Ken Jenne for United States Attorney?

No way Ed, I would rather it be you with Rumpole supplying the booze and chicks. No biting.