THE PROSECUTOR's DUTY of SILENCE Bennett Gershman

1183 GERSHMAN PRODUCTION (DO NOT DELETE) 12/17/2016 4:47 PM THE PROSECUTOR’S DUTY OF SILENCE Bennett Gershman* I. INTRODUCTION Prosecutors enjoy a broad array of opportunities to communicate with the public outside the courtroom. Justice Holmes’s famous dictum—that “[t]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument . and not by any outside influence, whether of private talk or public print”1—is just that, a theory. The reality is otherwise. Prosecutors, and defense lawyers too, engage in extrajudicial speech frequently, and often irresponsibly. But in contrast to other lawyers, prosecutors have a higher—a “special”—duty to serve justice rather than a private client.2 Yet prosecutor speech is ubiquitous, often carefully orchestrated, and very often hard- hitting. With the collaboration of the media, prosecutors hold press conferences and issue press releases, give briefings and interviews with reporters, post Internet and Twitter comments, appear as TV “experts,” speak in public forums, and write books about their exploits.3 They have also used the notorious “perp walk” as a form of communication and have been known to leak confidential information.4 As Justice Holmes intimated, a prosecutor’s public statements are potentially dangerous. Given a prosecutor’s high standing with the public as a “Champion of Justice” sworn to uphold the law and punish wrongdoers, a prosecutor has a unique ability to shape public opinion not only about fighting crime but also about specific * Professor of Law, Pace University. 1 Patterson v. Colorado, 205 U.S. 454, 462 (1907). 2 See STANDARDS FOR CRIMINAL JUSTICE § 3-1.2(b) (AM. BAR ASS’N 4th ed. 2015) (“The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.”); NAT’L PROSECUTION STANDARDS § 1-1.1 (Nat’l Dist. Attorneys Ass’n 3d ed. 2009) (“The primary responsibility of a prosecutor is to seek justice . .”); MODEL RULES OF PROF’L CONDUCT r. 3.8 cmt. 1 (AM. BAR ASS’N 2002) (“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”). 3 See infra Sections I.B.1, I.B.2, I.B.3, I.B.5, I.B.6. 4 See infra Sections I.B.4, I.B.7. 1183 1183 GERSHMAN PRODUCTION (DO NOT DELETE) 12/17/2016 4:47 PM 1184 Albany Law Review [Vol. 79.3 individuals who may be under investigation and prosecution. And with the ability of the media to saturate the public with pervasive, repetitive, and often inflammatory news coverage about a case, a prosecutor’s public statements almost always have the potential to prejudice future jurors in that case and thereby inflict prejudice to persons suspected or charged with wrongdoing.5 Indeed, a prosecutor’s public statements can destroy a person’s reputation, prejudice his right to a fair trial, and undermine the public’s respect for the way the criminal law is administered. And most tragically, a prosecutor’s public statements can contribute to the conviction of innocent persons.6 The power of the prosecutor, combined with the influence of the media, makes for a dangerous combination. The symbiotic relationship between prosecutors and the media is well known. While banner headlines and incendiary news coverage garner prosecutors free publicity and significant leverage in getting convictions,7 the close collaboration with prosecutors gives the media special access to confidential information and the ability to break stories and then spin them to a large and receptive audience. To be sure, some prosecutor speech is legitimate and necessary. Speech by prosecutors may serve significant public interests— informing the public about law enforcement initiatives, alerting the public to dangerous situations, and seeking assistance from the pubic in investigating crimes and fugitives. But a considerable amount of prosecutor speech is illegitimate, unnecessary, and prejudicial. When a prosecutor campaigns on the death penalty, or the rights of victims, or testifies before a legislative body on law 5 See, e.g., Laurie L. Levenson, Prosecutorial Sound Bites: When do They Cross the Line?, 44 GA. L. REV. 1021, 1024 (2010) (“[T]he ethical rules have been fairly ineffective in restraining prosecutors from remarks that have a substantial possibility of affecting public opinion of the defendant before trial.”); Andrew E. Taslitz, The Incautious Media, Free Speech, and the Unfair Trial: Why Prosecutors Need More Realistic Guidance in Dealing with the Press, 62 HASTINGS L.J. 1285, 1287 (2011) (noting that risks to a defendant’s reputation and receiving a fair trial from extrajudicial comments by prosecutors in high-profile cases “always exist” and are “substantial.”). See R. Michael Cassidy, The Prosecutor and the Press: Lessons (Not) Learned from the Mike Nifong Debacle, 71 LAW & CONTEMP. PROB. 67, 68 (2008) (“Several of the statements that [the prosecutor] admittedly made to the media about the rape investigation . seem entirely consistent with a prosecutor’s duty to inform the public about the priorities of his office, the nature and status of criminal cases, and the reasons for the discretionary law-enforcement decisions he has made. These are the very types of statements that prosecutors across the country routinely make about pending criminal cases in order to keep their communities informed about threats to public safety and the ongoing enforcement activities of government officials.”). 6 See infra note 222 and accompanying text. 7 See, e.g., Taslitz, supra note 5, at 1295. 1183 GERSHMAN PRODUCTION (DO NOT DELETE) 12/17/2016 4:47 PM 2015/2016] The Prosecutor’s Duty of Silence 1185 enforcement initiatives to fight terrorism, there may be no direct and specific prejudice to any pending or impending prosecution. However, when a prosecutor comments about specific cases, discusses the evidence and the defendant’s character, and offers opinions about the credibility of witnesses and the defendant’s guilt, the prosecutor crosses the line. Admittedly, the line between legitimate and illegitimate prosecutor speech is not clear-cut. A prosecutor who seeks to inform the public about law enforcement initiatives against terrorism— undoubtedly a legitimate topic—may intentionally or inadvertently identify individuals who are suspected of being part of a terrorist cell, link them to a broader terrorist conspiracy, and opine on the strength of the government’s evidence.8 And if these individuals are later charged with criminal conduct, their right to a fair trial may be compromised by the prosecutor’s comments.9 Further, the occasional efforts of courts and disciplinary bodies to hedge prosecutor speech, especially speech that flirts near the line, is often frustrated by vague legal and ethical standards, as well as the ability of some prosecutors to find ways within those standards to circumvent limitations on their speech. For these reasons, although prosecutors occasionally are disciplined for speech that violates the rules,10 or chastised by the courts,11 sanctioning prosecutors for 8 See United States v. Koubriti, 305 F. Supp. 2d 723, 725 (E.D. Mich. 2003) for a discussion of two “lamentable incidents” in which United States Attorney General John Ashcroft made extrajudicial statements and erroneously stated that three defendants arrested for terrorism were “suspected of having knowledge of the September 11th attacks” and referred to the testimony of a cooperating government witness in the case as having “been of value, substantial value,” to the Government’s case. 9 See Bennett L. Gershman, How Juries Get it Wrong – Anatomy of the Detroit Terror Case, 44 WASHBURN L.J. 327, 339–40 (2005), which discusses the Koubriti trial and how “[f]ollowing a nine-month review, the government filed a memorandum . conceding that the convictions were flawed,” that the lead witness was not credible, and that “the jury’s determination was impaired” by prosecutorial misconduct. 10 See, e.g., In re Members of the State Bar of Ariz., No. PDJ-2011-9002, at 232 (Ariz. S. Ct. April 10, 2012) (suspending and disbarring various members of the Arizona Bar for violating the Arizona Rules of Professional Conduct); In re Brizzi, 962 N.E.2d 1240, 1249 (Ind. 2012) (imposing public reprimand on prosecutor for his “professional misconduct”); Attorney Grievance Comm’n v. Gansler, 835 A.2d 548, 574, 575 (Md. 2003) (recommending reprimand of prosecutor for his out of court statements that could have likely prejudiced the outcome of numerous criminal trials); In re Holtzman, 577 N.E.2d 30, 31 (N.Y. 1991) (sustaining Letter of Reprimand against District Attorney for releasing a letter to the public accusing a judge of misconduct); In re Soares, 947 N.Y.S.2d 233, 234, 235 (N.Y. App. Div. 2012) (censuring the district attorney for publicly criticizing the judge’s decision in a pending criminal case); Zimmerman v. Bd. of Prof’l Responsibility, 764 S.W.2d 757, 758, 763 (Tenn. 1989) (sustaining the hearing committee’s verdict finding the prosecutor to be in violation of professional rules when he spoke to the press about pending proceedings); N.C. State Bar v. Nifong, No. 06 DHC 35 (N.C. State Bar July 31, 2007) (disbarring an attorney for extrajudicial statements made to the press that were likely to affect a pending case). 1183 GERSHMAN PRODUCTION (DO NOT DELETE) 12/17/2016 4:47 PM 1186 Albany Law Review [Vol. 79.3 irresponsible speech is infrequent and often ad hoc. And hanging in the balance, of course, is the ever-present risk that unregulated or weakly-regulated prosecutor speech continues to impair the fair and evenhanded functioning of the criminal justice system, the confidence of the public in the integrity of the system, and the reputation and liberty of persons thrust into the system and facing the glare of public accusation and prosecution.12 Prosecutor speech is not fungible.

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