High Profile Prosecutions: Special Issues Created by Heavy Media Coverage

"High-Profile Prosecutions: Special Issues Created by Heavy Media Coverage" at today's conference is a panel by

• Hon. William L. Downing (King County Superior Court) (moderator)
• Patrick J. Fitzgerald (U.S. Atty, N.D. Ill., E. Div., Chicago)
• Anne M. Bremner, Stafford Frey Cooper
• John McKay, Seattle U.

RPC 3.6 (Trial Publicity) applies to all attorneys. RPC 3.8 (Special Duties of Prosecutor) limits what prosecutors can say:

(f) 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.

Again and again, the panel -- particularly Mr. Fitzgerald -- hit the theme that the system is not set up for the convenience or vanity of prosecutors. Sometimes the press will say bad things about you and how you're handling a case and your job is to take it.

Another theme was the duty to inform the public. One striking example Fitgerald gave wasn't about particularly high-profile trials at all. In Chicago there are about 80,000 gang members and 13,000 police officers. So deterrence is very important. When convicted gang members are paroled, the U.S. attorney's office meets with them to say: we know who you are and if we catch you carrying a firearm we will prosecute you (and make a federal case of it). And then it's important for the office to publicize every such prosecution.

Judge Downing commented that when he speaks at law schools (UW and SU), he observes that law students quickly pick up the ethical obligation to represent one's client zealously, but it's harder to get the concurrent obligations to the court and the public.

Prof. McKay said that it's not that hard to teach the rules -- but the Rules of Professional Conduct are just the beginning. Telling people you aren't supposed to steal from clients sets the bar pretty low. It's important to talk about the tough issues that lawyers face in practice -- giving lots of real examples. And lawyers should talk to students about mistakes they've made, to talk about "times when we went down a path that was scary."