Overkill?

The Des Moines Register has this editorial:

Some law-enforcement authorities look for any excuse to keep crime information from the public. The Iowa Supreme Court has given them a convenient one with new rules aimed at preventing prejudicial pretrial news coverage.

Not all law officials, however, like the idea of the court telling them what they can or cannot say about criminal investigations. Des Moines Police Chief William McCarthy, for example, effectively told the court to mind its own business. That should be the response statewide. . . .

If strictly obeyed, the court's rules would prohibit officers from saying much about criminal cases beyond the bare facts - including information in public records. Most troubling, authorities are discouraged from reporting the existence or contents of a confession, describing potential evidence or giving "any opinion" on a suspect's guilt or innocence. Indeed, simply reporting that a charge has been filed could be considered prejudicial unless qualified with a statement that a defendant is presumed innocent until proven guilty.

While I agree this is overbroad and overboard, I think the situation is not quite so controversial as they make out. The relevant text of the rules:

RULE 32:3.6: TRIAL PUBLICITY
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense, or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation, and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time, and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

Comment
[5] There are, on the other hand, certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate to:

(1) the character, credibility, reputation, or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;
(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement;
(3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;
(5) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial; or
(6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

RULE 32:3.8: SPECIAL RESPONSIBILITIES OF A PROSECUTOR
The prosecutor in a criminal case shall:
(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 32:3.6 or this rule.

Comment
[6] Like other lawyers, prosecutors are subject to rules 32:5.1 and 32:5.3, which relate to responsibilities regarding lawyers and nonlawyers who work for or are associated with the lawyer’s office. Paragraph (f) reminds the prosecutor of the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case. In addition, paragraph (f) requires a prosecutor to exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements, even when such persons are not under the direct supervision of the prosecutor. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law-enforcement personnel and other relevant individuals. [Court Order April 20, 2005, effective July 1, 2005]

(Emphasis mine. The original text is in a massive .pdf file of all the new Iowa Court Rules downloadable from this page. It's in Chapter 32 on pages 46-47, under the Iowa Rules of Professional Conduct.)

To pick this apart, Rule 32:3.6 prohibits certain pretrial publicity when an attorney knows it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. Note #1: This is an attorney's rule of professional conduct only, with penalties ranging from public reprimand to disbarment. It has no effect on nonlawyers. Note #2: It prohibits only those communications which the attorney knows is likely going to prejudice a pending trial, by tainting the jury or otherwise. It does not prohibit statements that are not likely to be found highly prejudicial. Note #3: In criminal cases, any pretrial statements that taint the jury pool will result in removal of the trial to an untainted jurisdiction anyway, so even without this rule, the State has an incentive to be careful about what it says regarding an ongoing investigation. Note #4: Notice that several items are excepted from this - requests for assistance in obtaining evidence and information necessary thereto, warnings of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest, and information necessary to aid in apprehension of that person. Even if these statements have a "substantial likelihood of materially prejudicing an adjudicative proceeding in the matter" the lawyer can still make them.

Comment 5 expounds on the rule. Note #1: It's not a rule itself, just a comment to give further guidance for the lawyer so we don't have to keep bugging the ethics board with details. It includes a list of things that could well be considered prejudicial. Note #2: It doesn't prohibit these things. It just says to watch out for them. Release of information on this list does not violate the rule, if it can be shown the information released conformed with the rule itself, by being unprejudicial or by falling into one of the exceptions that apply regardless of whether or not there is a material likelihood of prejudice. Since the Register seemed particularly concerned about it, I should point out that this analysis would also apply to the comment's suggestion that the fact a defendant has been charged with a crime should be moderated by a statement that this "is merely an accusation and that the defendant is presumed innocent until and unless proven guilty."

Rule 32:3.8 is the part pertaining to prosecutors, and as usual, it's a bit more strict. They're prohibited from making extrajudicial comments that have a "substantial likelihood of heightening public condemnation of the accused" unless they are necessary to inform the public of the nature and extent of the prosecutor’s action and serve a legitimate law enforcement purpose. Note #1: Definitely more strict, because it focuses on public condemnation of the accused, not prejudicing the trial itself. Note #2: There's a huge, gaping exception for when it's necessary to inform the public of the action and serves a legitimate law enforcement purpose. That's a pretty broad standard. For example, a quick search of caselaw for that phrase brings up the US Supreme Court case of Wilson v. Layne:

Respondents next argue that the presence of third parties could serve the law enforcement purpose of publicizing the government's efforts to combat crime, and facilitate accurate reporting on law enforcement activities. There is certainly language in our opinions interpreting the First Amendment which points to the importance of "the press" in informing the general public about the administration of criminal justice.

The Court subsequently found that the 4th Amendment right to privacy in the home trumps that, but the idea of "publicizing law enforcement efforts" as a legitimate law enforcement purpose was not summarily rejected. Under a standard that's so loose, I don't think releasing legitimate information necessary to gather evidence or apprehend a suspect in an ongoing investigation would likely be prohibited. Note #3: Again, if the prosecutor or the police make enough comments to taint the jury pool, the case will be bounced around like a superball until it lands in an untainted county, so there's more incentive than just a disciplinary rule at work here. Note #4: Where I totally agree with the Register is this: it's unreasonable to hold the prosecutor ethically accountable for acts of others not directly supervisable by the County Attorney's office. I understand the theory behind it - too often, people suspect government officials of colluding with one another to skirt the rules in order to get a conviction. However, the idea that the lawyer can somehow control law enforcement is untenable in the best of circumstances and ludicrous in others.

Which is probably why Comment 6 expounds on Rule 32:3.8 and explains what that what they really mean by "reasonable care" is basically send a memo.

I agree with the Register that this language is a silly addition to the professional responsibility rules - they should simply cut it back to it's pre-2005 requirement that prosecutors "exercise reasonable care to prevent employees and associates from making an extrajudicial statement that the lawyer would be prohibited from making . . ." On the other hand, I should also point out in the Court's defense that taken as a whole, it appears this rule has been streamlined. Take a look at Jeff Stein's excellent article on the old Iowa disciplinary rules: certain things you can or can't talk about at the time of a search, if the accused has not been apprehended, and so on.