Thursday, March 5, 2015

Preet Bharara on Sheldon Silver: Prosecutorial Ethics?

Is U.S. Attorney Preet Bharara behaving more like a politician or like a prosecutor bound by the rules of legal ethics?
Do his press conferences, speeches, interviews, and other public comments about Sheldon Silver, the now-indicted former Speaker of the New York Assembly, sound more like he's running for elected office, or like a prosecutor who is abiding by the ethical restrictions on over-zealous, prejudicial out-of-court statements?

Let's consider some ethical obligations of a prosecutor that are clear:
--no public statements, other than what's actually necessary for law enforcement, that tend to malign someone who's been accused;
--no public statements that might prejudice the case against someone who's been accused;
--no crusade for a conviction, but to conduct oneself impartially and to do justice.

Yes, that's my recap of some of the applicable ethical rules. So here are the rules themselves. They are taught to every law student--in New York and elsewhere:
"The prosecutor in a criminal case shall...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 statements that have a substantial likelihood of heightening public condemnation of the accused." (American Bar Assn. Model Rules of Professional Conduct, Rule 3.8, Special Responsibilities of a Prosecutor.)
"A prosecutor can, and should, avoid comments that have no legitimate law enforcement purpose and have a substantial likelihood of  increasing opprobrium against the accused." (N.Y. Rules of Professional Conduct, comment to Rule 3.8, Special Responsibility of Prosecutors.)
A prosecutor shall not make "extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding." (Both the American Bar Assn. Model Rules of Professional Conduct and the N.Y. Rules of Professional Conduct, comments to Rule 3.8, specifically applying Rule 3.6, Trial Publicity, to prosecutors.) 
"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation [is] to govern impartially... and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." (Berger v. U.S. [Supreme Court 1935])

With those ethical mandates in mind, let's now consider the kinds of public statements federal prosecutor Bharara has reportedly made in commenting on his office's case against Sheldon Silver.
("Reportedly" only because I did not personally hear or see these remarks emanating from Bharara's mouth. But they have been widely reported in the NY Times, the NY Daily News, the Observer, Vanity Fair, and elsewhere.)

Here are just a few examples:
“How could Speaker Silver, one of the most powerful men in all of New York, earn millions of dollars in outside income without deeply compromising his ability to honestly serve his constituents? Today, we provide the answer: He didn’t.”
“These charges go to the very core of what ails Albany — a lack of transparency, lack of accountability and a lack of principle joined with an overabundance of greed, cronyism and self-dealing.” 
“When you see somebody who has basically sold his office to line his pockets and compromised his integrity and ethics with regard to how to make decisions that affect people’s lives, that’s a big problem. And it’s a big problem for democracy.”
“It’s the concentration of power. Power in New York State, as far as anyone can tell, is concentrated in the hands of just a few men—some would say, just three men.”
“Why three men? Can there be a woman? Do they always have to be white? How small is the room that they can only fit three men? Is it three men in a closet? Are there cigars? Can they have Cuban cigars now? After a while, doesn't it get a little gamey in that room?”
 “The decision to charge the speaker of the New York Assembly yesterday was made by more than three men in a room.”
 “The people of New York should be disappointed, but they should be more than disappointed. They should be angry. When so many of their leaders can be bought for a few thousand dollars, they should think about getting angry."
So let me ask:
Which of those statements was actually necessary for law enforcement?
Which of those statements was in any sense necessary to insure the public's health or safety--as, for example, from a violent fugitive?
Which of those statements in any sense whatsoever reflected a presumption of innocence until conviction?
Which of those statements in any sense whatsoever reflected an ethical aspiration to do justice, unmired by personal bias and animosity?
Which of those statements reflects the ethical mandate to avoid trial through the media rather than in the courtroom?
(Need I say none?)

On the other hand:
Did those statements heighten public condemnation of the accused?
Did they tend to prejudice the public
Did they likely prejudice members of the public who might be called for jury duty?
Did they reflect a determination to convict and punish, rather than to insure that the legal system operates to protect the rights of the accused and to do what the legal system requires?
Did they reflect the emotions of a man on a crusade, rather than a prosecutor doing the law's work impartially--and yes, ethically?
(All of them?)

It's seems pretty clear to me.
These public comments--and apparently many others--were inappropriate.
They were hardly necessary to serve any proper prosecutorial or law enforcement purpose.
They seem clearly to fall outside the boundaries of public statements permissible under basic rules of legal ethics.

The United States Attorney owes it to his office, and to the justice system he is entrusted to serve, to conduct himself less like a crusading politician and more like an ethically restrained prosecutor.