Thursday, March 27, 2014
I begin today with this question:
Did Florida State Attorney Angela Corey violate the Florida Rules of Professional Conduct when she sent the unsolicited three-page statement below regarding the prosecution’s case against Marissa Alexander to the Duval County members of the Florida legislature?
Ms. Alexander was convicted by a jury of aggravated assault with a firearm and sentenced to 20 years. The First District Court of Appeal reversed the conviction and remanded the case for a new trial. The new trial is scheduled to begin on July 8th.
Ms. Corey’s statement bears the title, STATE OF FLORIDA VS. MARISSA ALEXANDER. Immediately beneath it are two jail booking photographs of Ms. Alexander dressed in jail clothing. One is dated August 2010 and the other is dated December 2010.
The following statement appears below the photographs:
Marissa Alexander to her husband: “I’ve got something for your ass.”
Ms. Corey increased the size of the font and emboldened Ms. Alexander’s alleged statement.
The rest of the three-page statement sets forth the prosecution case against Ms. Alexander in considerable detail. Ms. Corey claims that the purpose of the letter is to set the record straight, and that it is based on “testimony at trial” and various legal rulings.
At various times in the recent past, Ms. Corey has publicly complained about media reports that Ms. Alexander fired a warning shot into the ceiling of her kitchen to prevent her abusive ex-husband from assaulting her. Ms. Corey has since claimed that she produced the statement in response to a request by state Representative Mia Jones regarding the state’s stand-your-ground law, a defense that was rejected in Ms. Alexander’s case.
Representative Jones denies that she requested the statement.
Read the relevant rules of professional conduct that I have set forth below and decide whether you think Angela Corey violated them. Then let us know what you think. With the exception of the American Bar Association’s (ABA) Model Rule 3.6, which I cite below, all of the rules are from the Florida Rules of Professional Conduct (RPC). Bracketed and italicized material are my comments.
1. RULE 4-3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
(a) Influencing Decision Maker. A lawyer shall not seek to influence a judge, juror,
prospective juror, or other decision maker except as permitted by law or the rules of court.
[“other decision maker” includes prospective jurors]
2. RULE 4-3.6 TRIAL PUBLICITY
(a) Prejudicial Extrajudicial Statements Prohibited. A lawyer shall not make an
extrajudicial statement that a reasonable person would expect to be disseminated by means of
public communication if the lawyer knows or reasonably should know that it will have a
substantial likelihood of materially prejudicing an adjudicative proceeding due to its creation of
an imminent and substantial detrimental effect on that proceeding.
[“extrajudicial” means out of court]
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.
3. RULE 4-3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
A prosecutor has the responsibility of a minister of justice and not simply that of an
advocate. This responsibility carries with it specific obligations such as making a reasonable
effort to assure that the accused has been advised of the right to and the procedure for obtaining
counsel and has been given a reasonable opportunity to obtain counsel so that guilt is decided
upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this
direction is a matter of debate. Florida has adopted the American Bar Association Standards of
Criminal Justice Relating to Prosecution Function. This is the product of prolonged and careful
deliberation by lawyers experienced in criminal prosecution and defense and should be consulted
for further guidance. See also rule 4-3.3(d) governing ex parte proceedings, among which grand
jury proceedings are included. Applicable law may require other measures by the prosecutor and
knowing disregard of these obligations or systematic abuse of prosecutorial discretion could
constitute a violation of rule 4-8.4.
4. ABA Model Rule 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.
[Should Ms. Corey have reasonably foreseen Representative Mia Jones’s dissemination of the three-page statement to the public?]
(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.
(c) 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.
[Can Ms. Corey claim that her disclosure is authorized by subsection (c)?]
5. ABA Rule 3.6 Trial Publicity – Comment
 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.
 Special rules of confidentiality may validly govern proceedings in juvenile, domestic relations and mental disability proceedings, and perhaps other types of litigation. Rule 3.4(c) requires compliance with such rules.
 The Rule sets forth a basic general prohibition against a lawyer’s making statements that the lawyer knows or should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Recognizing that the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small, the rule applies only to lawyers who are, or who have been involved in the investigation or litigation of a case, and their associates.
 Paragraph (b) identifies specific matters about which a lawyer’s statements would not ordinarily be considered to present a substantial likelihood of material prejudice, and should not in any event be considered prohibited by the general prohibition of paragraph (a). Paragraph (b) is not intended to be an exhaustive listing of the subjects upon which a lawyer may make a statement, but statements on other matters may be subject to paragraph (a).
 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.
 Another relevant factor in determining prejudice is the nature of the proceeding involved. Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive. Non-jury hearings and arbitration proceedings may be even less affected. The Rule will still place limitations on prejudicial comments in these cases, but the likelihood of prejudice may be different depending on the type of proceeding.
6. Rule 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 3.6 or this Rule.
 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).
 Like other lawyers, prosecutors are subject to Rules 5.1 and 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.
7. RULE 4-8.4 MISCONDUCT
A lawyer shall not:
(d) engage in conduct in connection with the practice of law that is prejudicial to the
administration of justice, including to knowingly, or through callous indifference, disparage,
humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on
any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national
origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or
Subdivision (d) of this rule proscribes conduct that is prejudicial to the administration of
justice. Such proscription includes the prohibition against discriminatory conduct committed by
a lawyer while performing duties in connection with the practice of law. The proscription
extends to any characteristic or status that is not relevant to the proof of any legal or factual issue
in dispute. Such conduct, when directed towards litigants, jurors, witnesses, court personnel, or
other lawyers, whether based on race, ethnicity, gender, religion, national origin, disability,
marital status, sexual orientation, age, socioeconomic status, employment, physical
characteristic, or any other basis, subverts the administration of justice and undermines the
public’s confidence in our system of justice, as well as notions of equality. This subdivision does
not prohibit a lawyer from representing a client as may be permitted by applicable law, such as,
by way of example, representing a client accused of committing discriminatory conduct.