Prosecutor is bound by 3.6 AND 3.8! Especially 3.8(f). Maldonado v. Ford Company – defendant had previously been convicted of sexual harassment but the conviction had been expunged. When the judge ruled that the fact of the conviction could not be admitted in the current case, the plaintiff’s lawyer disclosed both the fact and the judge’s ruling to the media. Trial court dismissed the case and the Michigan Supreme Court affirmed. ` 3. Assuming that some restrictions on pre-trial comment are constitutional, on whom should such restrictions be imposed? (d) In re Sealed Case No. 99-3091 inovlved alleged lacks of grand jury info from Independent Counsel Kenneth Starr’s office. D.C. Circuit found that the OIC 137
had engaged in no illegal leaking, and there was no prima facie violation of the grand jury secrecy rule. Justice Dept. supported OIC on this matter and argued that Rule 6(e) was not violated if a prosecutor made a statement of opinion about someone’s potential liability, even if some evidence supporting that conclusion was also presented to a grand jury. “Prosecutors of ten have a legitimate interest in revealing aspects of their investigations ‘to inform the public that the investigation is underway, to describe the general scope of the investigation, to obtain assistance in the apprehension of a suspect to warn the public of any dangers, or otherwise aid in the investigation.” 4 . Did “Clean Gene” White violate Rule 3.6? If so, when? (a) Gene did NOT violate rule 3.6 when he said there are “a lot of skeletons under the beds of some state legislators.” Did not violate the rule when he held press conferences to report on indictments just issued, because the indictments are public record. When he alluded to possible indictments, he violated the rule. Precluded by 3.6(a) because Should not let press secretary give press conferences pursuant to 3.6(d) if a lawyer; and 3.8(f) if not a lawyer. (b) If Gene mentions asking judge to recuse himself because judge is soft on public corruption, he would NOT violate 3.6 because it’s public record, but would constitute violation of 8.2(a) for being critical of the judge. (c) Would not violate 3.6 if he tells the indictment of a killer and his last known whereabouts. - comment 5 of 3.6 is critical - See Restatement 57 for when atty is immune from defamation suits. 5. Should the fact that Rule 3.6 allows certain kinds of trial publicity prelude other remedies against lawyers if they say that which Rule 3.6 allows? (a) Buckley v. Fitzsimmons — Π filed a damage suit against a prosecutor for allegedly fabricating evidence of Δ ’s guilt and for announcing the Δ ’s arrest at a press conference that may have prejudiced the later trial. 7th Circuit held the prosecutor’s conduct subject to an absolute privilege because it was all part of normal preparation of a case. USCC reveres and applied a “functional test” looking to the function being performed rather than the role of the actor.
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