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Oregon Sting Suspect's Lawyers Seek Muzzle on Eric Holder

By Jeralyn

The lawyers for Mohamed Mohamud, the 19 year-old accused of planning to bomb a Christmas tree lighting ceremony in Oregon following a long FBI sting investigation, have filed a motion asking the court to order Attorney General Eric Holder to cease making prejudicial public comments about the case.

In defending the sting against allegations of entrapment, Holder has said:

"Those who characterize the FBI's activities in this case as 'entrapment' simply do not have their facts straight -- or do not have a full understanding of the law," Holder said to the group Muslim Advocates at its annual dinner.

Mohamud's lawyers point out Holder's comments violate the Code of Federal Regulations, the ABA Model Rules of Professional Conduct and their client's 5th and 6th Amendment rights. From the motion, available on PACER: [More...]

Opinions regarding guilt are not allowed to be broadcast pending trial: “[P]ersonnel of the Department should refrain from making available the following: . . . Any opinion as to the accused’s guilt, . . . .” 28 C.F.R. § 50.2(b)(6)(vi). More generally, prosecutors should “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.” ABA Model Rules of Professional Conduct 3.8(f). Federal prosecutors bear a special responsibility not to abuse their considerable power. Berger v. United States, 295 U.S. 78, 88-89 (1935). The overnment’s pretrial comments exceed both the spirit and the letter of the government’s rules regarding pretrial publicity.

On the constitutional implications:

The Fifth and Sixth Amendments encompass the basic protections of the presumption of innocence, trial by unbiased jurors, and freedom from prejudicial government action regarding the right to a fair trial. These protections are at risk when governmental officials use the power of their position to pollute the public with their prejudgments. See Sheppard v. Maxwell, 384 U.S. 333, 361-62 (1966).

More from the CFR:

“At no time shall personnel of the Department of Justice . . . furnish any statement or information, which could reasonably be expected to be disseminated by means of public communication, if such a statement or information may reasonably be expected to influence the outcome of a pending or future trial.” 28 C.F.R. § 50.2(b) (Release of information by personnel of the Department of Justice relating to criminal and civil proceedings)

The motion continues:

Opinions regarding guilt are not allowed to be broadcast pending trial: “[P]ersonnel of the Department should refrain from making available the following: . . . Any opinion as to the accused’s guilt, . . . .” 28 C.F.R. § 50.2(b)(6)(vi). More generally, prosecutors should “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.” ABA Model Rules of Professional Conduct 3.8(f).

Federal prosecutors bear a special responsibility not to abuse their considerable power. Berger v. United States, 295 U.S. 78, 88-89 (1935). The government’s pretrial comments exceed both the spirit and the letter of the government’s rules regarding pretrial publicity.

Former AG John Ashcroft got in trouble for making comments opining on a big terror case in Detroit. He apologized to the Court and was still issued a letter of admonition. (Court order here.)

Holder's latest: Homegrown terrorism keeps him up at night.

Full post as published by TalkLeft on December 21, 2010 (boomark / email).