Tuesday, November 8, 2011

Prosecutors Unrestrained

Pennsylvania Attorney General Linda Kelly held a press conference yesterday concerning the sexual assault, perjury, and failure to report charges levied against current and former Penn State officials, including one-time Defensive Coordinator Jerry Sandusky. CBSNews.com has the story here.

Attorney General Kelly stood at a podium. In back of her were giant posters, which showed enlarged photographs of the defendants and summarized the allegations against them.

Kelly had at least this much to say about an alleged 2002 sexual assault by Sandusky on a 10 year-old boy in a Penn State shower: "Those officials and administrators to whom it was reported did not report that incident to law enforcement or to any child protective agency. And their inaction likely allowed a child predator to continue to victimize children for many, many years." Of course, "those officials and administrators" include the two defendants facing charges of perjury and failure to report.

State Police Commissioner Frank Noonan, formerly chief investigator for the AG's Office, added his two cents. According to Noonan, defendant Jerry Sandusky's actions constituted "grooming, where these predators identify a child, [and] become mentors. They're usually children that they're having a little difficulty, they're at-risk children. Through the program he was able to identify these children, give them gifts, establish a trust, initiate physical contact which eventually leads to sexual contact, and that is very common in these types of investigations."

Noonan emphasized that Sandusky made admissions during a 1998 Penn State police investigation, "and nothing happened, and nothing stopped." 

Noonan stated that subsequent incidents were ignored and/or not reported to the police. "And that's very unusual. I don't think I've ever been associated with a case where that type of eyewitness identification of sex acts [was] taking place where the police weren't called."

According to Rule 3.8 of the Pennsylvania Rules of Professional Conduct, the prosecutor in a criminal case "shall, 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 and 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 or this Rule."

Rule 3.6(a) prohibits a "lawyer who is participating or has participated in the investigation or litigation of a matter" from making "an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

Note 5 to the Comment on Rule 3.6 cautions that "certain subjects...are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to...a criminal matter, or any other proceeding that could result in incarceration." Those subjects relate to, among other things, "the existence of a confession, admission, or statement given by a defendant or suspect."

Why do so many prominent state and federal prosecutors appear to believe that they are immune from the obligation to follow such ethical rules?



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Model Rule 3.8(f), restricting prosecutors’ extrajudicial comments, was adopted by the ABA in 2002. It derives from the American Lawyer’s Code of Conduct, which was published twenty-two years earlier, and for which I was the reporter. See also, Freedman & Starwood, Prior Restraints on Freedom of Expression by Defendants and Defense Attorneys, 29 Stanford L. Rev. 607 (1977); Freedman & Smith, Understanding Lawyers’ Ethics 302-304 (4th ed., 2010); Freedman, The Influence of the American Lawyer’s Code of Conduct on ABA Rules and Standards, 38 Hofstra L. Rev. 927 (2010).

MR 3.8(f) is a major advance in prosecutors’ ethics, but there is a troubling last sentence in Comment [5] to MR 3.8: “Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with Rule 3.6(b)....” The problem is that MR 3.6(b)(2) says that a prosecutor “may” state “information contained in a public record.” That would appear to contradict the mandatory language of 3.8(f), permitting the prosecutor to disregard 3.8(f) at will, as long as the prosecutor has included the prejudicial, condemnatory language in an indictment or in a grand jury report.

That Comment should not be controlling. It contradicts the unequivocally mandatory language of 3.8(f), a rule which does not include a public-record exception. As stated in paragraph [21] of the Scope section of the Model Rules, the comments are intended only as “guides,” but it is the text of each rule that is “authoritative.” Moreover, that last sentence in Comment [5] to MR 3.8 also contradicts the three sentences in Comment [5] that precede it, rendering the “guidance” of Comment [5] ambiguous in the face of the unambiguous language of the Rule itself.

I would conclude, therefore, that MR 3.8(f) means what it says.

Posted by: Monroe Freedman | Nov 10, 2011 7:37:02 AM

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