Holder and Cops Talking Out of School
Memo to Attorney General Eric Holder:
Re: U.S. v. Faisal Shahzad
From : TalkLeft.com
Dear Mr. Holder:
You and law enforcement agents investigating the Times Square failed car bomb attempt have released information about the content of post-arrest incriminating statements Mr.Faisal Shahzad made to authorities. Your statements are improper extrajudicial comments that fail to comport with both the mandatory ethical rules professional conduct and the suggested ABA Standards on Prosecution Functions and Criminal Justice.
Shahzad, 30, confessed to the Saturday night plot to ignite a fireball in crowded Times Square after he was arrested late Monday at JFK Airport, said Attorney General Eric Holder.
Example II: [More...]
Shahzad also admitted spending five months in Pakistan receiving bomb-making training before the botched attempt to terrorize the Crossroads of the World, according to the 10-page complaint.
It's time you and your agents took another look at the Rules of Professional Conduct:
(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.
(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.
© 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.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;....
(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.
ABA Criminal Justice Section Standards, FAIR TRIAL AND FREE PRESS, PART I, CONDUCT OF ATTORNEYS IN CRIMINAL CASES
Standard 8-1.1 Extrajudicial statements by attorneys
(a) A lawyer should not make or authorize the making of 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 prejudicing a criminal proceeding. (b) Statements relating to the following matters are ordinarily likely to have a substantial likelihood of prejudicing a criminal proceeding:
(1) the prior criminal record (including arrests, indictments, or other charges of crime) of a suspect or defendant;
(2) the character or reputation of a suspect or defendant;
(3) the opinion of the lawyer on the guilt of the defendant, the merits of the case or the merits of the evidence in the case;
(4) the existence or contents of any confession, admission, or statement given by the accused, or the refusal or failure of the accused to make a statement;
(5) the performance of any examinations or tests, or the accused's refusal or failure to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
(6) the identity, expected testimony, criminal record or credibility of prospective witnesses;
(7) the possibility of a plea of guilty to the offense charged, or other disposition; and
(8) information which the lawyer knows or has reason to know would be inadmissible as evidence in a trial.
© Notwithstanding paragraphs (a) and (b), statements relating to the following matters may be made:
(1) the general nature of the charges against the accused, provided that 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;
(2) the general nature of the defense to the charges or to other public accusations against the accused, including that the accused has no prior criminal record;
(3) a request for assistance in obtaining evidence;
(4) information necessary to aid in the apprehension of the accused or to warn the public of any dangers that may exist;
(5) a request for assistance in obtaining evidence;
(6) the existence of an investigation in progress, including the general length and scope of the investigation, the charge or defense involved, and the identity of the investigating officer or agency;
(7) the facts and circumstances of an arrest, including the time and place, and the identity of the arresting officer or agency;
(8) the identity of the victim, where the release of that information is not otherwise prohibited by law or would not be harmful to the victim; (9) information contained within a public record, without further comment; and
(10) the scheduling or result of any stage in the judicial process;....
ABA Criminal Justice Section Standards, FAIR TRIAL AND FREE PRESS, PART II. CONDUCT OF LAW ENFORCEMENT OFFICERS, JUDGES, AND COURT PERSONNEL IN CRIMINAL CASES
Trials take place in public courtrooms which the public and media may attend. Criminal investigations take place in private. You and law enforcement agents have been giving out information about Mr. Faisal Shahzd that flies in the face of these rules.
Standard 8-Standard 8-2.1 Release of information by law enforcement agencies
(a) The provisions of Standard 1.1 should be applicable to the release of information to the public by law enforcement officers and agencies.
(1) the deliberate exposure of a person in custody for he purpose of photographing or televising by representatives of the news media, or
(2) the interviewing by representatives of the news media of a person in custody except upon request or consent by that person to an interview after being informed adequately of the right to consult with counsel and of the right to refuse to grant an interview.
At this juncture, as you well know, charges are mere one-sided allegations. It is a blatant violation of the rules for you to tell America and the World what Mr. Shahzad said in his post-arrest "interview" -- whether he was or was not Miranda-ized. This kind of statement has no business being released by law enforcement.
A Pakistani-American man arrested in the failed Times Square car bombing has admitted his role in the attempted attack and said he received explosives training in Pakistan, the authorities said Tuesday.
Please use your able skills to teach by example. Stick to the rules and let the information and evidence comes out in a court of law, where it belongs, and not in the court of public opinion, where its dissemination carries a great risk of prejudicing the accused.
If you must talk about something, please explain the "two significant lapses in the security response of the government and the airline that allowed him to come close to making his escape."
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