Has Attorney General John Ashcroft, In Alleged Terrorism Cases, Violated Government Ethics Rules Governing Prosecutors' Comments About The Accused?

By D. MARK JACKSON

Thursday, Jan. 30, 2003

It is not uncommon for lawyers to communicate to the press in high-profile cases. In these cases in particular, however, Attorney General John Ashcroft has made an unusually large number of public statements. Indeed, in each case, he has held at least two press conferences. Moreover, Mr. Ashcroft's statements have often included bold criticisms of the defendants and highly charged language.

Going so far in criticizing the accused may violate government ethics rules which require that prosecutors refrain from making public statements that might unfairly harm defendants.

Prosecutors' Ethical Duties: Balancing First Amendment and Fair Trial Rights

The duty not to make public comments that may cause unfair harm to the accused is one aspect of a more general duty that prosecutors owe.

While prosecutors have a duty to try to win cases on behalf of the government, their role is not simply that of a zealous advocate for law enforcement. Rather, prosecutors have an additional, superseding duty: to ensure that justice prevails in each case.

The Supreme Court has described the prosecutor as "an intimate and trusted and essential part of the machinery of justice, an 'officer of the court' in the most compelling sense." And a Department of Justice motto makes clear that "The government wins when justice is done" - not when it procures a conviction.

The rule against unfairly harmful public comments is an aid to justice. Prosecutors may comment on cases, for the public has a First Amendment right to know about criminal trials. But that right must be balanced against the Sixth Amendment right of the accused to have a fair trial - and, in particular, to have an impartial jury, and to have certain types of evidence excluded from the trial.

When prosecutors make unfairly harmful comments about the accused to the public, from which jurors must be chosen, those rights are violated. Such comments may result in jurors' becoming biased, and even in their potentially learning evidence that the trial judge will exclude.

In Gentile v. State Bar of Nevada, Chief Justice Rehnquist underscored the need for First Amendment rights to be balanced with fair trial rights in this area. Specifically, he commented that: "[c]ollaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures."

State Ethics Rules Apply to Prosecutors Practicing In Those States

Lawyers, including both state and federal prosecutors, are bound by the ethics codes of each state in which they practice. Of course, if federal law directly conflicted with a state ethics rule, the federal law would prevail, according to the Constitution's Supremacy Clause, but otherwise the state rule governs.

Prosecutors may also be bound by additional internal government ethics rules that apply to them alone, and their practice may also be informed by guidance provided by internal manuals such as the Department of Justice Manual.

State ethics codes, in turn, are largely based on the American Bar Association's model code of professional responsibility. Lawyers - including prosecutors - who violate ethics codes are subject to discipline including potential loss of their license to practice law.

Under this rule, what statements can lawyers make with respect to a criminal trial, and what statements are forbidden? Generally, lawyers are prohibited from making public statements that have a substantial likelihood of prejudicing the trial, or affecting the imposition of a sentence. Prosecutors may release, however, general information about a defendant- including his name, age, and occupation. Prosecutors are also free to describe the circumstances of a defendant's arrest and provide facts concerning the progress of the proceeding.

State courts have interpreted this rule as prohibiting prosecutors from, among other things, publicizing alleged confessions, implying that a case is "open and shut," disclosing a large portion of the case prior to trial, or releasing damaging or embarrassing evidence that is likely to be inadmissible at trial.

An Example of A Prosecutorial Comment That Violated Ethics Rules

Here's one instance of a prosecutorial comment that went too far. In Aversa v. United States, an Assistant United States Attorney began investigating a local businessman for "structuring" bank deposits - that is, splitting deposits into smaller sums to avoid federal regulations. At a press conference, the prosecutor implied that the man was involved with money laundering and drug dealing.

The businessman, however, claimed that the money was from legitimate sources, and that he had divided his deposits only to conceal them from his wife, whom he was about to divorce. Accordingly, he sued the prosecutor for defamation. The court found that the prosecutor's statements were "false, misleading, self-serving, unjust, and unprofessional."

The Regulations that Apply to Attorney General Ashcroft

All fifty states have rules similar to the ones I've outlined. Additionally, the District of Columbia has adopted a provision that bars prosecutors from making public comments that have a substantial likelihood of heightening public condemnation of the accused. A prosecutor may make such statements, however, if it serves some legitimate law enforcement purpose - such as helping to locate and arrest additional suspects.

Since Attorney General Ashcroft generally issues comments from the District, this rule is applicable to him, as it is to all other government attorneys practicing there, absent a direct conflict with Justice Department or other federal regulations.

Did Attorney General Ashcroft Cross the Line? The Moussaoui and Lindh Cases.

Attorney General Ashcroft wants to demonstrate the administration's tough stance on terrorism and has called frequent press conferences to make this known. In issuing certain provocative statements, however, Ashcroft likely crossed ethical lines.

For instance, in December 2001, announcing Zacarias Moussaoui's indictment on conspiracy charges, Ashcroft detailed what he described as "chilling allegations" and a "chronicle of evil." He also referred to the indictment as an "important step in securing justice for the victims of September 11."

Did these statements have a substantial likelihood of heightening public condemnation of the accused? It's very difficult to dispute that they did. Unsurprisingly, one of Mousaoui's attorney's, Frank Dunham, publicly expressed his frustrations with the frequency and nature of Ashcroft's comments in the case.

During the following month, Attorney General Ashcroft held two press conferences in order to announce charges against John Walker Lindh. There, he proclaimed, "We may never know why he turned his back on our country and our values, but we cannot ignore that he did . . . Misdirected Americans cannot seek direction in the murderous ideologies and expect to avoid the consequences." He described Lindh as having "fought side by side with tyrants who recognize no other law than the law of brute force." In addition, he argued that Lindh had chosen to "embrace fanatics" and sought "to destroy us."

Perhaps most flagrantly, Ashcroft repeatedly stated that Lindh had voluntarily confessed to all of the acts as charged. As noted above, courts have specifically noted that discipline is appropriate for a prosecutor who refers either to an alleged confession, or to evidence that may be held inadmissible at trial. Ashcroft did both: It was clear from the start that Lindh's lawyers, like any competent defense attorneys, would likely challenge the admissibility of Lindh's lawyerless alleged confession.

Ashcroft's Statements On the Hamdi and Padilla Cases Are Also Likely Unethical

Following the detentions of Yaser Hamdi and Jose Padilla, Attorney General Ashcroft made similarly bold statements, using powerful language and imagery from the September 11 attacks. While not suspected of the planning or carrying out of that day's terrorism, Attorney General Ashcroft implied that Hamdi and Padilla were directly involved.

In addition, Ashcroft implied that Hamdi was responsible for the death of CIA agent Johnny Spann, who had been recently killed in Afghanistan. He did not, however, cite any evidence to support such a charge. Nor has he brought an indictment for this, or any other crime, against Hamdi. Instead, he had been holding Padilla and Hamdi - both U.S. citizens - incommunicado in military prisons, where they are being detained without any time limit or prospect of release, or any access to a lawyer or family members.

Note, then, that unlike Lindh and Moussaoui, Hamdi and Padilla do not even have lawyers to counter the statements made about them. Their lack of a "right of reply" - the opportunity, that is, to reply in the press to the statements Ashcroft has made about them - makes Mr. Ashcroft's comments all the more unfair.

Of course, given the Fifth Amendment's right against self-incrimination, no defendant is obligated to reply to prosecutorial comments about him; indeed, if he does, he risks waiving Fifth Amendment rights. But for Hamdi and Padilla, the government has eliminated even the option to respond.

Ashcroft's Statements Are Mere Grandstanding, Without a Prosecutorial Purpose

Many of Ashcroft's statements, in all four cases, had no serious prosecutorial or law enforcement purpose. Their apparent purpose was to serve as part of a public relations campaign - with the intent of increasing political support for the actions of the administration, and silencing potential critics.

In the cases of Hamdi and Padilla, Ashcroft may have wanted, in particular, to condemn the defendants in order to distract attention away from the fact that U.S. citizens are being held indefinitely in isolation. Thus, his implication may be this: If Hamdi was involving in killing Spann, a patriot, then should we really care if he is held incommunicado without a lawyer?

Ashcroft's inflammatory language very probably heightened public condemnation of each defendant - that is, it did exactly what the D.C. rules say prosecutorial comments cannot do. By releasing potentially inadmissible evidence (Lindh's alleged confession) and misleading facts (the suggested September 11 connection of Hamdi and Padilla) to potential jurors, these statements also jeopardized the possibility of the defendants' having a fair trial.

At any rate, provocative remarks made at press conferences can be more damaging to defendants than remarks made in court papers. Unlike remarks in court papers, they lack the accompanying context and analysis that might make their relevance and factual basis (or lack thereof) clear. Moreover, their intended audience is a judge who may know how to "unring the bell" and ignore evidence that may later be found inadmissible - not a potential juror who may find such evidence impossible to ignore.

Can Ashcroft Be Disciplined for Ethics Violations?

Given that Attorney General Ashcroft has likely violated ethics rules, can he be disciplined for doing so?

At the Justice Department, an Office of Professional Responsibility privately investigates alleged misconduct by its attorneys. All reports resulting from the investigation were kept secret until 1993. Since then, only a few have ever been released to the public. (One such report involved the prosecutor in Aversa. Despite the strong statement by the court that misconduct had occurred, the Department fully exonerated the attorney, amazingly finding that "no support for the allegation that [the prosecutor] made inappropriate statements to the press.") No sitting Attorney General has ever been the subject of such a report. Thus, it is unimaginable that the Department would now go after its own boss.

What about the District of Columbia Bar Association, which could try to discipline Ashcroft for professional responsibility violations? It's unlikely that the D.C. Bar would act either. State authorities rarely discipline prosecutors for misconduct - even very serious misconduct directly affecting the evidence submitted at trial.

For instance, according to a 1999 Chicago Tribune Survey, while 381 homicide defendants since 1963 have received new trials because prosecutors had engaged in serious misconduct such as suborning perjury and withholding evidence, not a single one of these prosecutor received a public sanction by any disciplinary authority.

This statistic suggests, by comparison, a slim possibility that a federal prosecutor might be disciplined for making unethical statements to the press - misconduct that, while very serious, at least does not taint trial evidence directly. And again, the fact that the prosecutor in question is the United States Attorney General only makes the pursuit of disciplinary action more daunting.

Part of the reason that prosecutors are so rarely disciplined may be that they do not represent individuals. A private attorney's individual clients may report him to the disciplinary authorities, but federal prosecutors have the People of the United States as their client.

But the People of the United States are also the source of the prosecutor's power. Some prosecutors are elected, and others, like John Ashcroft, appointed and confirmed by elected officials. With this in mind, disciplinary authorities often believe that prosecutors will be held accountable through the political process. In all likelihood, therefore, the only judge of Mr. Ashcroft's ethics will be the voters in 2004.


D. Mark Jackson is a lawyer with the U.S. Department of Labor in San Francisco. Mr. Jackson also writes on constitutional law, political theory, and poverty law. The opinions expressed in this article are those of the author, not of the U.S. Government. Mr. Jackson may be reached at dmarkjackson@earthlink.net.

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