DA BRAGG'S PREJUDICIAL PRESS CONFERENCE
Can President Trump get a Fair Trial in NYC? Not if the DA has anything to say about it
There are ethical rules and obligations imposed on prosecutors, though many Americans are unaware of these rules. For instance, did you know prosecutors are supposed to protect the right of the accused to a Fair Trial? Did you know that prosecutors are supposed to seek justice, not simply convictions? Or that prosecutors are not supposed to make prejudicial public comments to media about the credibility, character or reputation of the accused or to comment regarding the guilt or innocence of the accused? Did you know prosecutors are not supposed to include irrelevant, unnecessary scandalous allegations in charging documents? If you were unaware prosecutors owe these obligations to those accused of crimes, you are not alone. In fact, the recent conduct of the Manhattan District Attorney, Alvin Bragg, might lead one to conclude he is unfamiliar with these obligations as well.
On April 4, 2023, former President Donald J. Trump appeared in court in New York City to answer the charges brought against him by the indictment obtained by leftist George Soros-backed Manhattan District Attorney Alvin Bragg. (This article assumes the reader is aware of the charges brought in Manhattan against President Trump. For some good background on the Indictment itself see this article in The Federalist.) Shortly after President Trump’s appearance in court, the Manhattan DA held a press conference to discuss the indictment. In this press conference, DA Bragg spoke for approximately 6 minutes, 25 seconds, then held a question-and-answer session for just under six more minutes.
The DA used this press conference to make inflammatory and prejudicial remarks against President Trump. He publicly attacked President Trump’s character and publicly called into question his credibility and reputation. The DA publicly asserted President Trump’s complicity and guilt in allegedly covering up several unidentified crimes (these alleged crimes are not spelled out in the indictment or the so-called “Statement of Facts” and the DA refused to identify the actual crimes at the press conference, making only vague references to alleged “election law” and “tax” violations). The DA used inflammatory and misleading language to characterize President Trump’s alleged involvement by claiming Trump repeatedly made “false statements.”
The DA’s press conference was covered by virtually every news media outlet imaginable including PBS, CBS News, Fox News to Forbes Magazine and C-Span. In addition, the Manhattan DA’s website includes a link to the CBS News broadcast of his remarks. The Manhattan DA’s website also includes a link to his office’s press release about the charges brought against President Trump.
For reasons explained below, the press conference and press release, along with many superfluous, inflammatory alleged “facts” in the so-called “Statement of Facts” issued with the indictment are, in this writer’s opinion, clearly improper under New York’s Rules of Professional Conduct.
Background about the Rights of the Accused and a Prosecutor’s Obligations
The Sixth Amendment to the United States Constitution guarantees those charged with crimes the Right to a Fair Trial. The Due Process Clause of the Fourteenth Amendment applies the Sixth Amendment to the States and requires the accused “. . . receive a fair trial by an impartial jury free from outside influences.” One of the seminal cases on pretrial publicity and the Right to a Fair Trial is Sheppard v. Maxwell, 384 U.S. 333 (1966). In that case, the United States Supreme Court reversed a murder conviction due to the excessive pretrial, prejudicial publicity and its effect on the trial. As the Court stated in Sheppard v. Maxwell, “legal trials are not like elections, to be won through the use of meeting-hall, the radio and the newspaper.”
Prosecutors hold a special position in the administration of justice. Prosecutors are cloaked in the power of the State and the legitimacy their offices carry. Thus, as one commentator noted, a prosecutor “ . . . has a unique ability to shape public opinion . . . Indeed, a prosecutor’s public statements can destroy a person’s reputation, prejudice his right to a fair trial, and undermine the public’s respect for the way the criminal law is administered.” See The Prosecutor’s Duty of Silence, Albany Law Review, pgs. 1183-83 (2016). See also, Attorney Grievance Commission of Maryland vs. Gansler (2003).
Importantly, as the American Bar Association’s Criminal Justice Standards state “The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.” Because of this function and because of the potential for a prosecutor’s public statements to harm the ability of the accused to obtain a Fair Trial, state ethics rules impose important limitations on the public statements a prosecutor may make. A review of these rules in the State of New York demonstrates Manhattan DA Alvin Bragg’s April 4, 2023 press conference, his comments in that press conference and his office’s press release and website are, in my view, grossly in violation. Let’s take a closer look.
New York Rule of Professional Conduct Rule 3.6
Let us begin by gaining an understanding of what prosecutors are NOT supposed to do. The New York State “trial publicity” or “extrajudicial statements” rule (“extrajudicial statements” are statements made outside of court) is Rule 3.6 of the New York Rules of Professional Conduct. This Rule provides, in part:
Also applicable to prosecutors under the New York Rules of Professional Conduct is Rule 3.8. Specifically, Comment 5 to Rule 3.8 provides, in part, “Rule 3.6 prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of criminal prosecution, a prosecutor’s extrajudicial statements can create the additional problem of increasing public condemnation of the accused.”
Clearly, the Rules prohibit prosecutors from making statements relating to the character, credibility or reputation of the accused, from expressing any opinion as to the guilt of the accused or from even stating the accused is charge with a crime, unless the prosecutor qualifies the statement to include the presumption of innocence. DA Bragg’s presser flies in the face of these prohibitions.
Rule 3.6 goes on to state what prosecutors may discuss without violating the Rule itself. These provisions further cement the violations by DA Bragg in this case:
Notice this subparagraph states a lawyer (here, prosecutor) may make a statement if the statement complies with Paragraph A, but may only state the delineated matters without elaboration.
What did DA Bragg do in his press conference? Watch it for yourself. He definitely “elaborated,” in fact, he repeatedly used inflammatory phrases not included in any of the charging documents or in the Penal Code provisions allegedly violated. He proceeded as though these rules do not exist. To illustrate, I will quote from a transcript of the press conference from Rev.com.
Under the express provisions of Rule 3.6, any statement made by DA Bragg was “likely to prejudice materially an adjudicative proceeding” under Rule 3.6 (b)(6) if he even stated President Trump was so much as charged with a crime, unless the DA included a statement the charge is “merely an accusation” and that President Trump “is presumed innocent unless and until proven guilty.” (Rule 3.6(b)(6).) This writer sat through this miserable press conference several times on multiple media broadcasts, including the CBS News broadcast linked by the DA's own website, and could not identify one word about the presumption of innocence or that the DA’s claims are “merely accusations.” In fact, the DA’s contentions throughout the press conference are stated as categorical facts, not accusations at all.
The DA’s press release from April 4, 2023, on the other hand, includes a feeble effort to comply with the Rule. The press release proclaims:
After a lengthy description of the charges and three flowcharts outlining the claims made in the indictment, the press release ends with this statement:
In case anyone wondered whether the Manhattan DA’s office is even aware of Rule 3.6. This is their pitiable effort to comply. As of this writing, however, the DA’s website contains no disclaimer directly referencing the so-called “Statement of Facts,” not even a blurb like this buried at the end of the web page. These feeble efforts are not nearly enough to blunt the grossly inflammatory characterizations of the alleged conduct and are completely insufficient to protect President Trump’s right to a Fair Trial.
In the press conference, DA Bragg repeatedly made statements prejudicial to the accused. Some of the DA’s statements were misleading. Excerpts from the transcript are listed below:
And seconds later:
Each of these statements by the DA, along with others, called into question the “character,” credibility” and “reputation” of the accused in violation of Rule 3.6(b)(1) and arguably constitute claims of guilt in violation of Rule 3.6(b)(4).
Furthermore, these prejudicial and inflammatory remarks are made about ledger code entries made by the Trump Organization Controller for “legal expenses” and check stubs identifying payments as for a “retainer” for given months. That is it. That is the “grand scheme” this prosecutor used to make these bold, inflammatory and prejudicial statements. Unfathomable.
The very use of the words “false statements” by the DA is misleading, inflammatory and prejudicial, since the average person hearing this will think President Trump literally made false statements, when in fact, the DA is speaking about allegedly incorrect notations on ledgers and check stubs Trump himself did not even make. Further, the language “false statements” is not found in the New York Penal Code provisions charged in the indictment, §175.00, et. seq., and is not even used in the indictment or the “Statement of Facts.” This “false statement” language used by the DA sounds more “illegal” and scandalous than saying “false records entry.” That probably explains the DA’s use of the phrase.
The entire press conference had the effect of causing, promoting and increasing the condemnation of the accused in violation of Rule 3.8 (comment 5). This particular press conference served virtually no other purpose. At the same time, the DA included multiple references to his office being above reproach, discussing the extensive, “rigorous” investigation and allegedly thoughtful decision to bring the charges. (These claims lacked any credibility, but the effort was made nonetheless.) The message, while complete nonsense, was clear: we are beyond reproach, the defendant is bad. (The DA made no mention of any of the egregious behavior by his office’s previous and current staff, such as the former prosecutor who wrote a book about the investigation while it was still ongoing or the apparent leaks from the DA's office before the indictment issued.)
The exception noted above in Rule 3.6 (c)(2) for “information contained in a public record” does not, in my view, cover the public statements made in this case. This exception is commonly referred to as the “public record exception.” (Here, one would expect an apologist for Bragg to claim he merely discussed the allegations in the indictment or the so-called Statement of Facts.) The exceptions delineated in this subparagraph only allow the prosecutor’s statement to be made “without elaboration,” and clearly, DA Bragg did plenty of “elaborating” at his press conference. Second, as the ABA’s Criminal Justice Standards provide (specifically Standard 3-110 (d)), “A prosecutor should not place statements or evidence into the record to circumvent this Standard.” (Referring to the Standard prohibiting prosecutors from making public statements with a “substantial likelihood of materially prejudicing a criminal proceeding.”)
The DA’s inflammatory “Statement of Facts” is riddled with allegations having no bearing on the charges and arguably included to circumvent this Rule. For instance, Michael Cohen did not pay $30,000.00 to the former Trump Tower doorman and did not pay the $150,000 to “Woman No. 1.” Cohen paid the $130,000 to “Woman No. 2” and was allegedly reimbursed for only this payment, not for anything having to do with the other two alleged payments.
There is no legitimate reason for half of the so-called “facts” in the Statement of Facts to even be included in it. The payments to the door man and Woman No. 1, were not made by Michael Cohen at all and, as a result, he was not reimbursed for those. No “false” entries in business records were even alleged to have been made by Trump pertaining to those payments. As one commentator observed, “The public record exception assuredly was not intended to allow prosecutors to smear a defendant by indirectly creating purposeless and illegitimate records.” See Albany Law Review. See also, Henslee v. United States (reversing a conviction due to prejudicial publicity from a government motion which contained irrelevant, prejudicial material).
There is simply no reason to even include any allegations about these other payments or the circumstances supposedly surrounding them. These allegations appear to be made to make the accused “look bad,” to generate “bad press” for the accused and to provide the DA with “cover” for talking about those superfluous allegations. Beyond that, as previously stated, in his press conference DA Bragg used misleading language even more inflammatory than what he conjured for the “Statement of Facts,” by stating President Trump made “false statements.”
Prosecutors do get disciplined for making prejudicial statements to the press. The prosecutor in the infamous Duke Lacrosse case was disbarred, in part, for inflammatory, prejudicial public statements he made about the accused lacrosse players. A prosecutor in Maryland was publicly reprimanded for inflammatory statements made to the press about pending cases. A Tennessee prosecutor was reprimanded for prejudicial statements made to the press about a murder case. In numerous other cases, courts sanctioned or dressed down prosecutors for press conferences and public statements prejudicial to the accused. In still other cases, courts reversed criminal convictions for depriving the accused of a Fair Trial due to the prejudicial public statements of prosecutors.
This case already was the subject of scandalous pre-indictment, prejudicial public statements emanating from the Manhattan DA’s office through a former employee who wrote a book about an ongoing investigation and through leaks about the indictment and arraignment which appear to emanate from the DA’s office. Furthermore, the DA knew full well the charges by his office drew the attention of the world. His press conference literally counted on it. One would think the DA’s office would be more careful about making still more prejudicial, inflammatory public statements in light of the unprecedented pre-indictment publication by one his office’s former prosecutors, the leaks about the indictment and the worldwide press interest in the case. If all of this leads you to conclude these charges are about politics and not crimes, join the club. Millions of Americans feel the same way.
The indictment itself is disgraceful enough. The effort by the prosecuting authority to try the case in the press and prejudice the public and potential jurors against President Trump makes it even worse. Americans of all political inclinations should stand with President Trump and demand this farce end now. Otherwise, as these leftist prosecutors are installed around the Country, they will continue to weaponize their offices and target their political opponents. The American people simply cannot allow that.
Daniel R. Street
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