It looks like I'm getting to substance more quickly than I expected. I received a call from a reporter today on a legal ethics issue, I'd love to hear comments from the collective wisdom of the blogosphere.
Here are the facts:
A District Attorney in California has announced that he will no longer return calls from the media or offer public information about pending cases. The DA claims that media sensationalism in two high profile cases forced a change of venue and his new media policy.
The reporter wanted to know:
- Can the DA decide to not talk to the press?
- Is the prosecutor obligated to disclose public information?
- What are the ramifications of this policy?
- What recourse does the media have?
- What can the voters do?
My sense of this is that the prosecutor is on very firm ground. As most of us know, the criticism that we more frequently hear is that prosecutors are undermining a fair trial by arguing the case in the media. So from the perspective of fair administration of justice, this could be deemed commendable conduct. The critique here seems to be grounded in open government principles. Let me start with the ethical issues.
First, recall what Justice Holmes wrote over 100 years ago: "The theory of our system is that the conclusions to be reached in a case will be induced by evidence and argument in open court, and not by any outside influence, whether of private talk or public print." Patterson v. Colorado, 205 U.S. 454 (1907). This theory, or principle informs a prosecutor's decisions to speak to the media and protects a defendants rights by ensuring the case hinges on the evidence, not sensationalism.
Second, it's ethical for a prosecutor to not speak to the press because it's a fairly well settled principle that publicity has an adverse impact on jurors who may try and conform their verdict to public sentiment, rather than the law. Moreover, in jurisdictions with elected judges, those judges may (improperly) worry about elections or future judicial appointments, especially in high profile cases. A prosecutor who refuses to talk about pending cases makes it less likely that the case will receive detailed press coverage by not feeding the fire of speculation and arm chair quarterbacking that seems to surround high profile cases. (Although the unique nature of the prosecutor's silence may ---at least in the early stages of the policy---generate more scrutiny, rather than less).
Third, witnesses may be hesitant to testify if there is a lot of media attention or they may reassess or even change their testimony in light of other information they hear or read about the trial.
Separate from these policy considerations and value judgments are rules governing attorney conduct. The Model Rules of Professional Conduct, Rule 3.6 which is substantially similar to California Rule of Professional Conduct 5-120, Trial Publicity directs (I'm paraphrasing throughout this post) that a lawyer "who is participating or has participated in the investigation...of a matter" may not make out of court statements that the lawyer knows will have a likelihood of prejudicing the case. This doesn't prevent the prosecutor from making statements, but it does inform the prosecutors judgment in what to say if he or she chooses to speak. Furthermore, the rules explicitly allow (but don't require) attorneys to make statements in seven circumstances.
The prosecutor may make statements about:
- the claim, offense or defense involved and the identity of the persons involved
- info in the public record
- the fact that an investigation is in progress
- the schedule of the investigation and trial
- the fact that assistance in obtaining evidence or information is needed
- a warning of danger concerning the behavior of a person involved, when there is reason to believe there is a risk of harm to the public or an individual
- the prosecutor may also release info related to: i) the identity, residence, occupation and family status of the accused; ii) if the accused is at large, info needed to apprehend that person; iii) the fact, time and place of arrest; iv) the identity of investigating and arresting officers or agencies.
On the flip-side, the commentary to the Model Rules also state what are essentially "no go" statements that are "more likely than not to prejudice" a criminal case. Those are statements about:
- the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;
- the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement;
- the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be present;
- any opinion as to guilt or innocence of a suspect
- information that the lawyer knows or should know is likely to be inadmissible if disclosing it would prejudice an impartial trial;
- the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and the defendant is presumed innocent until and unless proven guilty.
Ultimately I told the reporter that it seems that the ramifications of this policy are more fair trials and a lot more work for members of the media, and the only critique is grounded in open government principles. (I'm guessing he didn't like that comment). The media does not have much recourse other than critiquing the policy on the grounds that this is contrary to principles of accountability and transparency. However, the needs for open government do not outweigh the defendant's right to a fair trial. Of course, the voters can exercise the greatest influence over the DA's judgment by voting him out of office, or making such an issue of this that he rethinks his self imposed gag order. But short of those democratic means of persuasion, I don't see much that supports the media's case.
Am I missing something here?