Prosecutors trashing defendants in the media

Monroe recently posted about the issue. In today's news are a posting from White Collar Crime Prof Blog about a federal prosecutor's press release that sends conflicting signals in the headline and the small print, and also the public apology/regrets from the highly regarded US Attorney for Chicago, Patrick Fitzgerald, who is stepping down from that position. In announcing the indictments of Gov. Blagojevich, Fitzgerald crossed the line when he said that Lincoln would be spinning in his grave. I (and others?) criticized Fitzgerald for that and so I'm glad to run news of Fitzgerald being candid about his error.

Comments

[Monroe Freedman]

Who wrote the headline is irrelevant. The press treatment was predictable. And the press release was both unnecessary and, under both the DC Rules of Professional Conduct 3.8(f), and ABA MR 3.8(f), unethical: "Except for statements which are necessary to inform the public of the nature and extent of the prosecutor's action and which serve a legitimate law enforcement purpose, [the prosecutor shall not] make extrajudicial comments which serve to heighten condemnation of the accused."

That is, the prosecutor is forbidden to use pretrial publicity to punish an accused without the due process of a trial.

The prosecutor was privileged to publish in the indictment what otherwise would be libelous. At that point, the prosecutor had served a legitimate law enforcement purpose. The press release, with or without a disclaimer about the presumption of innocence, served no further legitimate law enforcement purpose (e.g., informing the public that an accused is at large and dangerous).