Excited to be a part of the Criminal Justice Institute in 2020

Excited to be a part of the Criminal Justice Institute in August. Its odd because for many of us over the years, this was a chance to get together and see colleagues, buddies across the aisle, judge and other criminal justice professionals. This year, because of COVID, everything is online. It changes the entire dynamic of the Conference. Of course, the death of George Floyd at the hands of the Minneapolis Police Department will and should also change that dynamic. However, hopefully, this will give us a different kind of opportunity to exchange ideas, experiences and more. All I know is that every single time I teach, work with other lawyers, or speak at events like this, I feel like I learn far more than I convey so its pretty exciting. Look forward to seeing some of you.

2020 Criminal Justice Institute

Client-Centric Defense - Lessons for Representing People Arrested for Protesting

Jack Rice and Mark Triola

Minnesota Rules of Professional Responsibility

Rule 3.6

Minn. Rules of Prof'l Conduct 3.6 prohibits an attorney from making public statements that will have a substantial likelihood of materially prejudicing a jury trial in a pending criminal matter.

3.6 (a) A lawyer who is participating or has participated in the investigation or litigation of a criminal matter shall not make an extrajudicial statement about the matter 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 a jury trial in a pending criminal matter.

3.6 (b) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

Comment 1

It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.

Rule 3.8

The prosecutor in a criminal case shall:

(f)  exercise reasonable care to prevent employees or other persons assisting or associated with the prosecutor in a criminal case and over whom the prosecutor has direct control from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6.

[5] Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor's extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this comment is intended to restrict the statements which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c).

Client-Centered Concerns

General Crime

Protest Crime

• Privacy / Reputational concerns

• Dismissal / Sentencing concerns

• Evidentiary concerns

• Reputation is the point

• Sentencing used to highlight injustice

• Usually little evidentiary concerns due to nature of the act (i.e. admission)

Protests and social movements that have involved criminal actions in US history:

• Sons of Liberty

• Abolitionists

• Labor movements

• Suffragettes

• Gun Rights movement

• Civil Rights movement

• Pro-life activists

• Anti-war protestors

• Racial Equality protestors

Ethical Obligations to the Profession

• Take no action that would have a substantial likelihood of materially prejudicing a jury.

  • If there were no such limits, the result would be the nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence.

• Protect clients from a substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. 

An Offensive vs. Defensive Approach

• How do you square ethical limitations when dealing with media?

• What should attorneys be able to discuss?

  • The general nature of the claim or defense

  • Information contained in a public record

  • If an investigation is ongoing and the general scope of the investigation, offense, claim or defense

  • The identity of the persons involved (if not protected by law)

  • Scheduling matters or concerns

  • The identity of the accused

  • His or her residence and occupation

  • Facts about and concerning the arrest

  • The identity of the investigating and arresting officers and the length of the investigation

• The Rules of Professional Conduct allow attorneys a wider latitude in responding to information already disseminated to the public to defend against misinformation. 

  • This exception does not allow for the unlimited scope of the response. 

• There is a question on whether defense attorneys can start on offense by talking to the media to frame the narrative of debate over public policy. 

  • Particularly when the client is a protester and the subject matter before the court is a question of public policy.

The Role of an Attorney

• An attorney is not the public relations representative of their client. 

• Does an attorney stepping into the media spotlight damage the reputation of the profession or should it expand ethical obligations?

• Do malpractice concerns still apply to an attorney’s handling of media relations?

What constitutes a “prejudicial effect of recent publicity?”

• The latest rules governing an attorney’s ethical duties to respond were last amended in 2005.

  • There has been a massive proliferation of social media and other internet forums in the last 15 years and with it the amount prejudicial publications.

• Should an attorney be ethically allowed to mitigate the recent adverse publicity disseminated through these new mediums?

  • Should the response be limited in the kind of publication?