A friend sent me a link to an interesting story about blogging prosecutors.

I’m of a mixed mind on this. On the one hand, I’m in favor of free speech and people — even prosecutors (within reason) — should be able to say what they want. On the other hand, District Attorneys already too frequently ignore the rules of their profession. Their goal, according to the code of conduct for DAs, is supposed to be “to seek justice.” And that’s always been interpreted to mean that they objectively press their cases in court. As the California Supreme Court noted, “The public prosecutor’s proper interest is not that it shall win a case, but that justice shall be done.” (People v. Vasquez (2006) 39 Cal.4th 47, 55 [45 Cal.Rptr.3d 372].) (A defense attorney’s job, on the other hand, is essentially “to win.” (People v. Cropper (1979) 89 Cal.App.3d 716, 720 [152 Cal.Rptr. 555].) But that’s a topic I’ll reserve for some future article.)

In fact, Rule 3.8 of the American Bar Association Model Rules of Professional Conduct arguably precludes prosecutors from blogging — at least about specific cases, if not also the specifics of the job of being a prosecutor.

[E]xcept 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, [a prosecutor shall] 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. — Rule 3.8, Special Responsibilities of a Prosecutor, ABA Model Rules of Professional Conduct at http://www.abanet.org/cpr/mrpc/rule_3_8.html (last visited February 25, 2007).

We could make an argument either way on this. In particular, we could argue that no Rule of Professional Conduct may trump the First Amendment. That’s not true, though: all sorts of things occasionally trump the First Amendment. When dealing with commenting upon legal cases, the First Amendment often gives way to other considerations, not the least of which is a defendant’s right to a fair trial.

We might also argue that when the press misrepresents policies, positions, or acts of the District Attorney, they have a right to rebut. However, there are several reasons not to accept this.

First, why should DAs have a right to rebut? To a certain extent, what the public thinks of DAs is irrelevant to the performance of their public service. A DA’s job is to prosecute crimes by presenting evidence in a court of law — not in a newspaper — so that an impartial jury can decide whether the individual charged with crimes is guilty beyond a reasonable doubt.

Courts of law have specific rules regarding what kinds of evidence can and cannot be presented to the jury. These have evolved over literally hundreds — and conceptually over thousands — of years, as we’ve learned that some kinds of evidence tend to prejudice people and result in too many innocent people being convicted. Newspapers do not have these same restrictions. Allowing prosecutors to comment about cases in newspapers &#8212 even “to correct” what they feel is an incorrect report — risks poisoning the minds of jurors or potential jurors.

But what if false reports by newspaper reporters cause people to distrust prosecutors? Whether the public likes — or even trusts — the DA is irrelevant to their jobs. In fact, one could argue that a healthy amount of skepticism is a requirement for the proper pursuit of justice. Isn’t an accused person supposed to be considered innocent right up until the minute he or she is proven guilty beyond a reasonable doubt? Jurors are not supposed to trust District Attorneys; they are supposed to doubt them!

Second, to the extent reporters get it wrong, prosecutors have the ability — as any other person — to set things right with either the reporter or the newspaper. Frankly, from what I can see, newspapers are typically friendly to prosecutors and police, as are most other Americans. If anyone gets short shrift in the news, it’s usually an accused person. If attempts to “set the record straight” fail, it seems to me that prosecutors can handle things the way the defense has always had to do it: put on your best case in court, then hope and pray that a fair and impartial jury will do their job in evaluating the evidence.

At any rate, as San Francisco’s Public Defender Jeff Adachi put it, “I think as time goes on, we are going to see more blogging [by prosecutors].”

We can only hope that their activities don’t lead an already prosecution-friendly public to put even more innocent people in prison.