Opinions regarding guilt are not allowed to be broadcast pending trial: “[P]ersonnel of the Department should refrain from making available the following: . . . Any opinion as to the accused’s guilt, . . . .” 28 C.F.R. § 50.2(b)(6)(vi). More generally, prosecutors should “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.” ABA Model Rules of Professional Conduct 3.8(f). Federal prosecutors bear a special responsibility not to abuse their considerable power. Berger v. United States, 295 U.S. 78, 88-89 (1935). The overnment’s pretrial comments exceed both the spirit and the letter of the government’s rules regarding pretrial publicity.
On the constitutional implications:
The Fifth and Sixth Amendments encompass the basic protections of the presumption of innocence, trial by unbiased jurors, and freedom from prejudicial government action regarding the right to a fair trial. These protections are at risk when governmental officials use the power of their position to pollute the public with their prejudgments. See Sheppard v. Maxwell, 384 U.S. 333, 361-62 (1966).
More from the CFR:
“At no time shall personnel of the Department of Justice . . . furnish any statement or information, which could reasonably be expected to be disseminated by means of public communication, if such a statement or information may reasonably be expected to influence the outcome of a pending or future trial.” 28 C.F.R. § 50.2(b) (Release of information by personnel of the Department of Justice relating to criminal and civil proceedings)
The motion continues:
Opinions regarding guilt are not allowed to be broadcast pending trial: “[P]ersonnel of the Department should refrain from making available the following: . . . Any opinion as to the accused’s guilt, . . . .” 28 C.F.R. § 50.2(b)(6)(vi). More generally, prosecutors should “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.” ABA Model Rules of Professional Conduct 3.8(f).
Federal prosecutors bear a special responsibility not to abuse their considerable power. Berger v. United States, 295 U.S. 78, 88-89 (1935). The government’s pretrial comments exceed both the spirit and the letter of the government’s rules regarding pretrial publicity.
Former AG John Ashcroft got in trouble for making comments opining on a big terror case in Detroit. He apologized to the Court and was still issued a letter of admonition. (Court order here.)
Holder's latest: Homegrown terrorism keeps him up at night.
