A reader asks whether it was ethical for District Attorney Steve Cooley to blast the jurors in the Robert Blake case as being "incredibly stupid," and to say that the now-acquitted defendant Robert Blake is a "miserable human being" who is "as guilty as sin." Longer story here. (Volokh has also commented.)
Clearly, it's bad form and tends to denigrate the service of the jurors. Whatever happened to, "we respect the jury process, and abide by the results, be they acquittals or convictions"? Or even, "the law delights in an acquittal no less than in a conviction, for in either case justice has been done." (Try telling that to a prosecutor who just lost one.)
Anyway, the Model Rules have two rules that touch on comments by prosecutors. Rule 3.6 governs comments that may materially prejudice an adjudicative proceeding, but since the trial is over, that rule probably has no application here. Remember, though, that California has its own ethics rules. In this case, California's Rule 5-120 is essentially the same as the ABA rule.
Rule 3.8 might touch on this. It forbids the prosecutor from "making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused." It doesn't say that the rule applies post-trial. Anyone know if that's true? Regardless, California does not have a similar rule, so I can't see invoking it against Cooley.
Standard 3-5.10 of the ABA Standards Relating to the Administration of Criminal Justice seems to be directly on point: "The prosecutor should not make public comments critical of a verdict, whether rendered by judge or jury." However, those rules are not, to my knowledge, strictly binding anywhere and certainly not in California.
So far, I'm tempted to conclude that Cooley's comment do not create disciplinary liability, but are obviously in horrible taste, erode faith in the system, and ought not have been made. Any other opinions out there? Defamation may be a different issue, but I can't see Blake wanting to bring a claim like that.
UPDATE: OK, this is better. Today's San Francisco Daily Journal (sorry, no link, since that newspaper treats its articles like state secrets) has a Letter to the Editor from Steve Cooley, showing that he knows the right way to respond to a difficult verdict. He wrote:
Your [Daily Journal] article on the outcome of the much-publicized trial of Robert Blake casts the criminal justice process as simply a strategic game in which a verdict of acquittal my be seen as a "stinging setback" or a "major loss" for the prosecution.
A prosecutor's goal is not merely to obtain convictions, but to present the evidence in support of the charges in an evenhanded fashion, leaving the ultimate judgment of the relative convincing force of that evidence to the members of the jury. That juries will sometimes find guilt and sometimes entertain a reasonable doubt, as in the Blake case, does not transform the system into a score-keeping game of winners and losers.
Cooley then praised Shellie Samuels, the deputy district attorney, for her expertise and professionalism and said that she "is typical of the hundreds of dedicated professionals in my office who do not shrink from tough cases on behalf of our client, the people of the state of California." Cooley finished by saying, "The Los Angeles County district attorney's office will continue to stand and fight for victims who can no longer stand and fight for themselves." I am glad to see that Cooley does know the right way to publicly address a tough loss.
A second Letter to the Editor, from Andrew Stein, quotes Joseph Buch, LA's former DA, as saying something similar to the quote I suggested above. Buch said, "the LA District Attorney never loses a case; when a guilty verdict comes in, justice was done! And when a not-guilty verdict comes in, justice was done!"