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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?

Full post as published by Southern District of Florida on December 16, 2008 (boomark / email).