Prosecutors Talking to the Media

By now, most readers of this blog have probably seen the news stories about a school shooting that occurred in Michigan a couple weeks ago, and are aware of the prosecutor’s decision to charge the alleged shooter’s parents with involuntary manslaughter. If not, we covered it for you in the News Roundup (twice). Those articles contain extensive details about the facts of the case, the reasoning behind the charges against the parents, and the evidence that the state believes will support the charges. We now know about a meeting earlier the same day between the parents and school administrators, disturbing artwork found in a school desk, online searches for ammunition, texts and social media posts about the firearm, and much more.

The novelty of pursuing criminal charges against the parents of the alleged shooter has drawn most of the national attention, but it prompted me to think about another interesting issue that comes up fairly often in high-profile criminal cases: how much should the prosecutor be telling us about this pending case?

What We Know and How We Know It

The shooting occurred on Tuesday, November 30th, at a high school north of Detroit. The alleged shooter was quickly taken into custody at the scene and charged with multiple counts of murder and other offenses. The detailed information that is now widely known about the sequence of events, potential evidence, and the state’s basis for filing charges against his parents came out primarily through a press conference given by the Oakland County prosecutor, Karen McDonald, on Friday, December 3rd. Over the next couple days, the prosecutor also gave interviews to local television and radio stations (including “Mojo in the Morning” on WKQI-FM on December 4th and “Flashpoint” on WDIV-TV on December 5th), during which she forecast the existence of additional unreleased evidence and expressed her personal views about the case, as well as her opinions on issues related to firearms and the potential culpability of other parties. The prosecutor has given several more interviews about the case since then, including a national appearance on CNN.

If you’re surprised by how quickly the prosecutor has publicized the details of this case and the amount of information she has shared, you’re not alone. The Oakland County Sheriff gave his own interview after the initial press conference, stating that he was “blindsided” by the announcement and discussion of the charges before his office had located the parents and taken them into custody. (In yet another interview, this time with the Detroit Free Press, the prosecutor said that she and the sheriff met for a cup of coffee to clear the air, and they are once again working together amicably.)

But what I haven’t seen so far in the abundance of news coverage and publicity surrounding this incident is a discussion about whether the prosecutor may be violating any ethical rules by discussing the case so freely and frequently.

What’s at Stake and Why it Matters

We covered this topic during our annual training for new prosecutors last month, conducted jointly with the Conference of District Attorneys. During a session on ethics and professionalism we reviewed Rules of Professional Conduct 3.6 (“Trial Publicity”) and 3.8(f) (“Special Responsibilities of a Prosecutor”), which set limits on what a prosecutor can say about a pending criminal case in order to protect the defendant’s right to a fair trial. One of the most well-known examples of what can happen when these rules are violated is the disciplinary proceeding against former District Attorney Mike Nifong, where his statements to the media about a pending case (along with other violations) ultimately led to his disbarment.

Michigan’s Rules 3.6 and 3.8 are fairly similar to North Carolina’s rules, but not identical, so the purpose of this post is not to speculate on whether the prosecutor’s conduct was a violation in her state. For this post, let’s suppose that the shooting happened somewhere in North Carolina, and it is now being prosecuted by a district attorney who has given multiple interviews about the case and made comparable statements about it. Would any of the prosecutor’s statements be problematic?

Applying the North Carolina Rules

The state bar has one published opinion addressing Rule 3.6 in civil proceedings (98 FEO 4), but other formal guidance on how to apply these rules in criminal cases is hard to find. Shea Denning previously blogged about prosecutors and Rule 3.6 here, explaining that subsection (a) of the rule generally prohibits any attorney who is involved in the case from making “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.” Rule 3.6(d) extends that prohibition to any other lawyer associated in the same firm or government agency as the lawyer who is directly subject to Rule 3.6(a).

However, as Shea’s post also pointed out, Rule 3.6(b) provides a “safe harbor” that allows an attorney involved in the case to make statements about some aspects of it, including but not limited to: the identity of the accused and the offense involved; the fact that an investigation is in progress; a warning about any danger posed to the public or requests for assistance in apprehending a suspect; scheduling information; and (perhaps the most important exception for this example) information that is contained in a public record. Subsections (c) and (e) of this rule provide some additional flexibility for responding to a misconduct allegation or countering adverse publicity initiated by someone else, although neither of those would apply here.

In the Michigan case, the prosecutor noted in the first few minutes of her December 3rd press conference that the facts and evidence she was about to discuss were already made public at a court hearing that had “just taken place” to issue charges against the parents. If the same sequence of events happened in North Carolina, the prosecutor would probably argue that the extensive detail and comments she provided at the press conference were therefore already public record, since they had previously been disclosed through a pleading filed in open court. So per Rule 3.6(b)(2) she’s in the clear, right?

I’m not so sure. Let’s look at it in two parts.

1. The facts and potential evidence:

As we’ve covered on this blog in other contexts, our courts are generally open to the public and documents such as arrest warrants, indictments and returned search warrants are indeed public records under G.S. 132-1.4(k). If all the factual details about this case that were revealed at the press conference were already disclosed in a public record connected to the issuance of criminal charges, then yes — Rule 3.6(b)(2) would apparently apply to the prosecutor’s recitation of those facts, as long as her statements did not otherwise run afoul of Rule 3.6(a) or 3.8(f) (more on this below).

There is, however, an important exception to this exception. Although Rule 3.6(b)(2) permits an attorney to make statements about information contained in public records, Comment 4 states that “a lawyer may not use this safe harbor to justify, by means of filing pleadings or other public records, statements prohibited by paragraph (a).” In other words, inserting unnecessary or inflammatory information into a public record like a warrant or indictment does not transform that information into a proper subject for comment, if the prosecutor’s statements about it would have been otherwise barred by the rule. It may not always be clear whether a particular fact or detail falls on the safe side of that line, so prosecutors should proceed with caution here.

2. Statements about the case and the defendants:

Even if we assume that all of the details and evidence disclosed thus far were matters of public record within the scope of Rule 3.6(b)(2), the prosecutor’s accompanying statements and expressions of personal opinion during these interviews raise a second concern. Comment 5 to Rule 3.6 cautions that there are “certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to […] a criminal matter, or any other proceeding that could result in incarceration.” Examples of potentially prejudicial statements include comments about the character or criminal record of the accused, evidence that is likely inadmissible and which would be prejudicial to the accused, an opinion regarding the guilt of the accused, or even the fact that the person has been charged with a crime (unless it is accompanied by a statement that the person is innocent until proven guilty). Moreover, Comment 6 reiterates that the risk of prejudice posed by these kinds of statements depends partly on what type of case it is, but “criminal jury trials will be most sensitive to extrajudicial speech.”

With those Comments in mind, and once again applying our own rules to the statements that the prosecutor has made, she seems to be edging dangerously close to expressing an opinion about the alleged shooter’s character by stating “the conclusion I draw is that there was absolute[ly] reason to believe this individual was dangerous and disturbed.” She also could be improperly commenting on the guilt of the parents for their role in allowing the shooting to happen by saying “it’s impossible not to conclude that there was a reason to believe he was going to hurt somebody” and “the notion that a parent could read those words and also know that their son had access to a deadly weapon that they gave him is unconscionable — it’s criminal.” Under Rule 3.6(a) more broadly, she also may be in danger of making a statement that will materially prejudice the pending case simply by publicizing all of this information so aggressively, especially when it is paired up with comments like “so yes, I think we should all be very angry and we should take a very hard look at what is in place in terms of criminal responsibility[.]”

Along the same lines, Rule 3.8(f) separately states that unless it is necessary to inform the public about the nature and extent of an action taken by the prosecutor and serves a “legitimate law enforcement purpose,” the prosecutor should “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused,” and the prosecutor should take reasonable care to prevent officers and others associated with the case from doing the same. Comment 6 to Rule 3.8 explains that these kinds of extrajudicial statements “can create the additional problem of increasing public condemnation of the accused” and therefore prosecutors should avoid comments that serve no legitimate law enforcement purpose and “have a substantial likelihood of increasing public opprobrium of the accused.” That language is a significant departure from the less restrictive wording found in Michigan’s Rule 3.8(e), but under our rules the prosecutor likely should have refrained from stating that “I am, by no means, saying that an active shooter situation should always result in a criminal prosecution against parents. But the facts of this case are so egregious — reading this document, looking at it, reading the words, ‘Help me’ with a gun, blood everywhere. This doesn’t just impact me as a prosecutor and a lawyer, it impacts me as a mother. […] It is criminal.”

There is a Middle Ground

None of this is to say that prosecutors or other attorneys should never talk to the press. On the contrary, the opening comment to Rule 3.6 notes that “there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves” and the public has a right to know about threats to its safety and the measures being taken to ensure that safety. There is also a “legitimate interest in the conduct of judicial proceedings,” particularly in matters of general concern or where it may influence the debate about a public policy. But these ethical rules exist because a balance has to be struck between protecting those societal interests while also preserving the defendant’s right to fair trial and ensuring that the rules of evidence can serve their intended purpose. Finding that balance “necessarily entails some curtailment of the information that may be disseminated about a party prior to trial.”

Aside from reading the rules carefully before making a statement (or better yet, having a copy of the rules in hand while doing so), the best advice for prosecutors who decide to talk to the media is to remember the very limited purpose behind discussing a pending case: (i) to provide the public with a few specific types of information it is entitled to know at this early stage; (ii) without prejudicing the defendant’s right to a fair trial later.

Statements that would be more appropriate during a campaign speech, in a closing argument, or at a meeting with legislators run the risk of overshooting the first point and causing the second.