Extrajudicial comments and the special responsibilities of prosecutors: failings of the model rules in today's media age.

• Author: Lipman, Abigail H.
• Position: NOTES

1. INTRODUCTION

   In a highly fractured decision, consisting of two separate 5-4 majority opinions, the United States Supreme Court confronted in Gentile v. Nevada State Bar the extent to which lawyers' extrajudicial speech should be curtailed when balanced against the competing risk of improper influence on a pending trial. (1) Today, nearly two decades after this ruling, Gentile remains the seminal judicial precedent in this area, but the behavioral standards that it establishes for proper and ethical trial publicity remain less than clear. The ever-increasing expansion and ubiquity of new forms of communication have led to high-profile cases, particularly criminal cases, routinely being tried in the press and lawyers frequently taking on the role of media consultant in addition to that of attorney. (2) "Unlike twenty years ago, when newspapers, radio and network television were the only media outlets, today there is media coverage 24 hours a day on television, cable, the web, faxes, cell phones, and other emerging media." (3) This nonstop pervasive media culture has generated increased potential for prejudice to such an extent that the delicate balance reached in Gentile may not provide adequate guidance to lawyers, and especially prosecutors, struggling with how to properly address or avoid the court of public opinion.

   The debate over what limits should be imposed on lawyers' extrajudicial speech rests at the intersection of many competing legal, ethical, and constitutional values. (4) The integrity of the adversarial judicial system requires disputes to be resolved in open court based on the evidence presented, that parties be bound by the Same rules of evidence and procedure, and that extraneous influences be curbed so as to not unduly affect the proceedings. (5) Limits on trial publicity and extrajudicial statements in the criminal context are grounded, in large part, on a criminal defendant's right to a fair trial adjudicated by an impartial jury under the Sixth Amendment. (6) Given these constitutionally guaranteed rights to criminal defendants, the legal process has an "especially strong" interest in protecting criminal trials from outside influences. (7) Negative or prejudicial pre-trial speech is especially harmful to criminal defendants because such speech can result in allowing information that will not be admitted into evidence at trial to reach the public and taint the potential jury pool. The Federal Rules of Evidence state that although relevant, certain information can be so prejudicial that the trier of fact should not consider such evidence in evaluating the case. (8) As the Supreme Court has stated: "The exclusion of [inadmissible] evidence in court is rendered meaningless when news media make it available to the public." (9) By imposing restrictions on speech and other outside influences, however, these extrajudicial limits unavoidably implicate rights guaranteed by the First Amendment, which protects free speech rights of all citizens, including lawyers, (10) as well as the public's right to be informed. (11)

   Lawyers in both civil and criminal cases, on both sides of the aisle, are additionally constrained by the Model Rules of Professional Conduct as to what can be said outside of the courtroom in extrajudicial comments to the media. (12) Prosecutors, however, are held to an even higher standard of conduct under the Model Rules, (13) as their unique role as "ministers of justice" can render their extrajudicial statements more prone to adversely affecting a criminal defendant's right to a fair trial. (14) The existing proscriptions on such behavior fail to effectively set a meaningful or predictable standard of conduct. The present ethical restrictions on trial publicity and extrajudicial statements, especially in the realm of prosecutorial misconduct, are "ambiguous, readily evaded and infrequently enforced." (15)

   This Note begins with a brief history tracing the regulation of trial publicity and extrajudicial commentary involving lawyers generally, and prosecutors in particular. It next examines Gentile v. State Bar of Nevada, which sets forth the current Supreme Court standard for balancing the competing rights of free speech and fair trial in protecting the integrity of adjudication from improper out-of-court public statements. The Note then evaluates the effectiveness of the Model Rules in curbing prejudicial trial publicity and identifies weaknesses in the current paradigm, particularly with respect to the considerable discretion afforded prosecutors in applying the Model Rules and the rarity of sanctions for prosecutorial misconduct. The Note concludes with a call for clarity from the Supreme Court and suggests changes to the Model Rules to promulgate new standards controlling extrajudicial comments of lawyers and prosecutors and to establish more practical guidelines, taking into account today's ubiquitous media presence.

2. HISTORY

   A. Historical Overview: Development of the Limits on Trial Publicity

   Rule-making bodies have long acknowledged the potential harmful impact that publicity can have on the proper adjudication of legal disputes. In 1887, Alabama issued the first official code of legal ethics in the United States, which included among its fifty-six provisions an attempt to restrict out-of-court statements made by attorneys. (16) Section 17 of the Alabama Code, titled "Avoid Newspaper Discussion of Legal Matters," provided:

   Newspaper publications by an attorney as to the merits of pending or anticipated litigation, call forth discussion and reply from the opposite party, tend to prevent a fair trial in the courts, and otherwise prejudice the due administration of justice. It requires a strong case to justify such publications; and when proper, it is unprofessional to make them anonymously. (17) The first nationwide codification of legal ethical precepts, the "Canons of Professional Ethics," was promulgated by the American Bar Association ("ABA") in 1908. (18) The Canons were subsequently adopted by many states (19) and, like the 1887 Alabama Code, included a clear proscription of public statements on pending matters. (20) In particular, Canon 20, "Newspaper Discussion of Pending Litigation," stated:

   Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice. Generally they are to be condemned. If the extreme circumstances of a particular case justify a statement to the public, it is unprofessional to make it anonymously. An ex parte reference to the facts should not go beyond quotation from the records and papers on file in the court; but even in extreme cases it is better to avoid any ex parte statement. (21) Although this Canon was "largely aspirational, lacking any meaningful regulatory bite, it still sent the unmistakable message that posturing before the court of public opinion was an unseemly practice that lawyers should avoid." (22)

   Debate concerning the proper balance between the rights of fair trial and free speech was thrust into national attention in the mid-1960s as a result of the widespread media coverage surrounding the assassination of President John Kennedy in 1963 and the Supreme Court's 1966 decision in Sheppard v. Maxwell, which examined the injurious effects of prejudicial trial publicity on due process. (23) These two events caused the Bar to reexamine the proper interplay of attorneys' freedom of speech and out-of-court trial publicity, and how these potentially competing rights should be reconciled. Shortly thereafter, the ABA, "along with many state and federal courts, began wrestling in earnest with striking the balance between free speech, responsible treatment of individual defendants, and the justice system." (24)

   Upon recommendation of the Warren Commission, the body established to investigate the assassination of President Kennedy, the ABA created the Advisory Committee on Fair Trial and Free Press in 1964. (25) The Warren Commission severely criticized the widespread extrajudicial information made available through the media about the alleged assassin, Lee Harvey Oswald, and suggested that he would not have been able to secure a fair trial if he had not been murdered. (26) The Commission's report recommended that "representatives of the bar, law enforcement associations, and the news media work together to establish ethical standards concerning the collection and presentation of information to the public so that there will be no interference with pending criminal investigations, court proceedings, or the right of individuals to a fair trial." (27)

   The ABA undertook implementing the Commission's recommendation through the efforts of the Reardon Committee, which was directed to "examine the issue, with special emphasis on the role of defense lawyers, prosecutors, and law enforcement officials." (28) The Reardon Committee received additional guidance from the Supreme Court's 1966 decision of Sheppard v. Maxwell, (29) in which the Supreme Court found a criminal defendant was denied due process as a result of the widespread prejudicial publicity and media saturation surrounding his case. (30) In Sheppard, the Supreme Court reversed the conviction of Dr. Sam Sheppard for the murder of his pregnant wife because the trial court did not sufficiently protect Sheppard's right to a fair trial from the unprecedented prejudicial publicity that surrounded the investigation and ensuing trial. (31) The Supreme Court underscored the lawyers' culpability for the media frenzy that engulfed the Sheppard prosecution, stating that:

   [R]eversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the...