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October 20, 2009
Prosecutorial Misconduct (and Gall)

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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?

Comment:

It depends on the odds... but they’d have to be pretty high (say $500 for a $1 bet) for me to take that one.

More seriously, I entirely agree with you that prosecutors should not inflame public opinion against an accused.

I would also question the empirical plausbility of an assertion that anything an accused says at a pre-trial conference could taint a jury’s deliberations given the handicap in the public eye of being the subject of a criminal prosecution.

http://www.legalethicsforum.com/blog/2009/10/prosecutorial-misconduct-and-gall.html