In the prosecution of Rod Blagojevich, federal prosecutors have complained to the judge that the former governor is tainting the jury pool with pretrial publicity, and have asked for a gag order. (NYT, 10/2009).
What gall! Almost a year ago, U.S. Attorney Patrick Fitzgerald held a news conference that succeeded in convicting Blagojevich without due process. (The same Fitzgerald was commendably scrupulous in avoiding pretrial publicity in the Scooter Libbey case.) Fitzgerald announced on television that Blagojevich was guilty of a "staggering" level of corruption, and that he had engaged in a “political corruption crime spree.” Since then, Blagojevich has exercised his First Amendment right to try to defend himself against the criminal conviction that has already taken place, at least in the news media and in the minds of the public.
As belatedly recognized in Model Rule 3.8, in language adopted from the American Lawyers Code of Conduct (1980), Fitzgerald’s conduct was unethical. – Any bets on the likelihood of disciplinary action against Fitzgerald?