May 24, 2012
DOJ Press Release Treads on Presumption of Innocence
The Department of Justice yesterday announced the indictment of four Georgia residents for tax fraud. The press release (see here) stated, as is required by the ABA Fair Trial and Free Press Standards, ". . . the defendants are presumed innocent until proven guilty beyond a reasonable doubt." Nonetheless, the headline read "Georgia Tax Cheats Indicted for Conspiring to Defraud the United States," certainly not affording these defendants the presumption of innocence to which the DOJ release paid lip service.
The indictment was announced by the new Assistant Attorney General of the Tax Division, Kathryn Keneally, until recently my able and respected colleague in the New York City criminal defense bar. My assumption is that AAG Keneally neither wrote nor reviewed the headline.
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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 information that otherwise would have been libelous. That was sufficient to inform the public of the nature and extent of the prosecutor's action. The press release served to heighten condemnation of the accused without any legitimate law enforcement purpose (e.g., that the accused is at large and dangerous).
Posted by: Monroe Freedman | May 25, 2012 4:20:45 AM