Monday, January 1, 2007
Posted by Jeff Lipshaw
We are delighted to have this guest piece from Nancy Rapoport (right):
The North Carolina Bar Association has announced that it has filed ethics charges against Michael Nifong, the DA who has been in charge of the Duke University lacrosse case. Based on what I’ve read in the news, those charges refer to various statements that Nifong made. According to the New York Times, not only did he make “misleading and inflammatory statements” about the accused players, but he also knowingly made a misleading assertion that posited that the players might have used condoms, which might explain the lack of DNA evidence. Nifong has recently dropped the rape charges against the players.
How fuzzy is the line about what prosecutors can and can’t say to the media? North Carolina’s ethics rules include prohibitions against making statements that could “materially prejudice an adjudicative proceeding.” (Rule 3.6(a).) Rule 3.6(b) sets out a laundry list of “thou shalt nots,” including statements relating to
(1) the character, credibility, or reputation 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; . . .
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; or
(5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial.
Attorneys are, of course, allowed to discuss basic facts about cases. (Rule 3.6(c).)
That’s just the general rule. Prosecutors, of course, have their own heightened responsibilities, set forth in Rule 3.8. (This rule isn’t very difficult to find. It’s called “Special Responsibilities of a Prosecutor.)
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; . . .
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense . . . ;
(e) exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6; . . .
(g) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.
Comment 6 to this Rule adds that “[a]lthough the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused.” So, for example, referring to the Duke players as “under investigation” would be OK, but referring to them as “a bunch of hooligans” would be a clear no-no. (My colleague at Houston, Meredith Duncan, is working on an article talking about the rights of those who have been accused of rape.)
Why might a prosecutor make such statements, when the rules are certainly clear at the extremes, if not always clear in the middle? I don’t pretend to know Nifong’s reasons for making the statements. But I have a general hypothesis that lawyers have subconsciously allowed their understanding of ethics rules to slip because popular portrayals of lawyers rarely bear any relationship at all to real ethics rules.
I love Denny Crane in Boston Legal. When I was a law student, I enjoyed watching L.A. Law, too, even though the only accurate part of life at McKenzie, Brackman, Cheney and Kuzak was that it would show associates working late at night. I love My Cousin Vinny, The Devil’s Advocate, The Verdict, and even Legally Blonde. But I know that much of what goes on in those shows and movies flies in the face of our ethics rules. (Try making Adam’s Rib without running afoul of conflicts of interest in the first five minutes.) What does the public see? It sees Judge Judy’s sarcasm and lack of respect for the people in her courtroom. It sees lawyers who shape their clients’ testimony (Anatomy of a Murder), counsel their clients to commit crimes (Double Jeopardy), tell juries that they believe their own clients are guilty (…And Justice for All), and lie every chance they get (Liar Liar). Non-lawyers who see these examples of “lawyering” aren’t likely to have a frame of reference to tell them what’s wrong with the behavior. Lawyers have that frame of reference, if they stop and think about the rules that bind them. There’s a risk, however, that the images that they see when they’re being entertained chip away at their brains’ link between real lawyer behavior and fictional behavior. I’m not making an excuse for Nifong’s statements—just a warning that lawyers would do well to remember that “Vinny got away with it” won’t play well in front of a disciplinary panel.
Nancy B. Rapoport is a professor of law and the former dean of the University of Houston Law Center. In July 2007, she will become the Gordon & Silver, Ltd. Professor of Law at the William S. Boyd School of Law, University of Nevada Las Vegas.