I posted rather extensively on the rules earlier, so I won't repeat myself, but I have a few comments on the article.
Bill McCarthy states:
Imagine this scenario: A robbery and shooting is reported at a local convenience store. The responding officers observe a suspect fleeing in a vehicle. During the chase, suspects begin to fire from their vehicle at the pursuing officers. Eventually, the police are able to ram the suspects' car, disabling it. The suspects flee from the car only to be tackled by the police, who, after a struggle, handcuff the suspects. The media arrive on the scene at almost the same time the arrests are made. The officers, in attempting to tell the media what has transpired, must first include the disclaimer, "Now remember, these people are innocent until proven guilty."
First, as I pointed out earlier, the disclaimer is not necessarily required under the new rules, even if the statement is being made by the prosecutor himself. A statement that a person has been charged with a crime without the guilty-until-proven-innocent language was used by a comment to the rules as one scenario which will more likely than not have a prejudicial effect. But it did not state it definitively did have a prejudicial effect under all circumstances. If this statement were made by an officer, and the defendants brought an ethics complaint against the prosecutor about it, the ethics board would look at 1) Did the statement, in fact, have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter? and 2) Did the prosecutor exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements (in this case, the officers)? Even if #1 shows prejudice, to draw a reprimand the prosecutor had to have not exercised reasonable care. Given that the rules indicate a memo warning law enforcement of the rule is ordinarily deemed sufficient, the complaint would fail under #2.
Second, and I'm just asking, I'm not sure what would be the harm in stating the disclaimer under the circumstances as described? The suspects are already in hand, it's not like you need help capturing them. Brent, any thoughts?
Allen Sobel responds:
The public must be kept informed, but not at the expense of a citizen's constitutional rights. There may be dispute about the Iowa Supreme Court's ability to impose standards limiting police communications. But rest assured that if a defendant's constitutional right to a fair trial is at stake, the courts will have the last word.
Public interest is not served if courts are forced to change venue because unnecessary pretrial publicity has made it impossible to get a fair trial in the county where the crime was allegedly committed, or, worse yet, the crime victim and everyone else involved in the process has to go through a trial for naught because on appeal it is found that the defendant's right to a fair trial was violated.
Law-enforcement officers in this state are called upon daily to make very difficult decisions, taking into account competing interests. There may well be times when releasing prejudicial information is unavoidable to protect public safety, solve a crime or apprehend a suspect.
Absent such circumstances, law enforcement should be encouraged to preserve and protect a defendant's right to a fair trial. It is a basic obligation.
These are very nice principles, but it still doesn't address the issue whether the means are logically related to your outcome. The rule at issue is an ethical rule governing prosecutors. It's not a rule of evidence, or obligation of the officer. It makes little sense to hold prosecutor's law licenses hostage to the behavior of officers, or to require a "memo to the file" as a rubber stamp protection of that license. The prosecutor has no control over the officer's actions. The "memo" could well be filed in that little circular file under the officer's desk.
The way for the courts to address pretrial prejudice is to move venue or issue gag orders in a particular case. Law officers should act responsibly in giving information to the media, to ensure that doesn't have to happen whenever possible. But using an ethics rule on prosecutors isn't the proper mechanism to enforce this behavior.
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