Prosecutorial misconduct

Very sensible piece from today's Times. I am often amazed at the comments made by American prosecutors before a trial; fortunately we don't see that type of misconduct in Canada (or at least I've never seen it!).

By BARRY COBURN

Published: December 13, 2008

Washington

LOST amid the understandable clamor over the charges against Gov. Rod Blagojevich of Illinois are questions raised by the pretrial public comments about the case by the prosecutor, Patrick Fitzgerald.

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.”

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.

The court in which Mr. Blagojevich is charged, the United States District Court for the Northern District of Illinois, has a local rule mandating that a “lawyer shall not make an extrajudicial statement the lawyer knows or reasonably should know is likely to be disseminated by public media and, if so disseminated, would pose a serious and imminent threat to the fairness of an adjudicative proceeding.” The rule goes on to say that a public statement “ordinarily is likely to have such an effect when it refers to” a criminal matter and to “the character or reputation of the accused, or any opinion as to the accused’s guilt or innocence, as to the merits of the case, or as to the evidence in the case.” The American Bar Association’s model rules are similar, if not more restrictive.

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.”

Any prosecutor at the center of a firestorm of publicity may find the temptation to grandstand hard to resist, but these comments are, to put it mildly, remarkably inflammatory. Mr. Fitzgerald’s expressions of revulsion, use of hyperbolic rhetoric and implicit assertion of his personal belief that the charges have merit clearly run afoul of the rules. It is one thing for a prosecutor to publicly condemn a defendant’s actions and assert a belief that he did what he is charged with doing after a trial and conviction, but another to do so before he is indicted by a grand jury.

Of course, editorial writers, pundits, bloggers, voters and anyone standing by a water cooler talking to anyone else are free to characterize Mr. Blagojevich or his conduct as they see fit, limited only by the remote risk of being sued for defamation.

But Mr. Fitzgerald is a prosecutor, a highly regarded, powerful and well-known one. His public characterizations of the charges against the governor will stick in the public mind. They will remain in the public arena, on the Internet and in the memories of citizens who, one day, may be summoned for jury duty in Mr. Blagojevich’s case.

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.

Barry Coburn, a lawyer, is a former federal prosecutor.