Michael Gaynor
Bill O'Reilly's simplistic view of prosecutorial duty will not do
By Michael Gaynor
April 16, 2012

Sometimes the duty of a prosecutor is NOT to prosecute.

Bill O'Reilly, host of "The O'Reilly Factor," is not a lawyer.

That's fine.

O'Reilly is opinated.

That's fine too.

Sometimes O'Reilly dangerously errs or oversimplifies when discussing legal matters.

That's bad.

No wonder Fox News' Megyn Kelly said there's so much to correct.

On his April 12, 2012 show, O'Reilly, in a discussion of the George Zimmerman prosecution, O'Reilly airly said that the duty of a prosecutor is to prosecute.

If it were that simple, former Durham County, North Carolina district attorney Mike Nifong, who personally prosecuted the Duke lacrosse no rape case, would be a poster boy for prosecutors instead of a disgraced, disbarred former persecutor.

Sometimes the duty of a prosecutor is NOT to prosecute.

We must not forget that in the Duke case false accuser Crystal Gail Magum was cast by the liberal media establishment led by The New York Times as a victim and members of the Duke men's lacrosse team as villains. It turned out that the accuser was the villain and the team members were the victims.

Initially Zimmerman was cast by the liberal media as a crazed white racist hunting innocent black children as prey. Trayvon Martin may turn out to be an innocent victim, but that is not clear now. What is clear is that NBC redacted a video so that Zimmerman seemed to be racist, Zimmerman is Hispanic and there are blacks who know Zimmerman who don't believe he's a racist and a witness who said that Martin was on top of Zimmerman before Zimmerman shot and killed him.

Prosecutors have a duty to see that justice is done, not to prosecute without a reasonable belief that there is probable cause to prosecute.

Rule 3.8 of the New York Rules of Professional Conduct imposes "special responsibilities" on prosecutors and other government attorneys.

RULE 3.8 states:

(a) A prosecutor or other government lawyer shall not institute, cause to be instituted or maintain a criminal charge when the prosecutor or other government lawyer knows or it is obvious that the charge is not supported by probable cause.

(b) A prosecutor or other government lawyer in criminal litigation shall maketimely disclosure to counsel for the defendant or to a defendant who has no counsel of the existence of evidence or information known to the prosecutor or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence, except when relieved of this responsibility by a protective order of a tribunal.

The Comment to Rule 3.8 explains:

[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Applicable state or federal law may require other measures by the prosecutor, and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4. A government lawyer in a criminal case is considered a "prosecutor" for purposes of this Rule.

[5] Rule 3.6 prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor's extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments that have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium against the accused. A prosecutor in a criminal case should make reasonable efforts to prevent persons under the prosecutor's supervisory authority, which may include investigators, law enforcement personnel, employees and other persons assisting or associated with the prosecutor, from making extrajudicial statements that the prosecutor would be prohibited from making under Rule 3.6....

[6] Like other lawyers, prosecutors are subject to Rule 5.1 and Rule 5.3, which relate to responsibilities regarding lawyers and nonlawyers who work for or are associated with the lawyer's office. Prosecutors should bear in mind the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case, and should exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law enforcement personnel and other relevant individuals.

[6A] Reference to a "prosecutor" in this Rule includes the office of the prosecutor and all lawyers affiliated with the prosecutor's office who are responsible for the prosecution function. Like other lawyers, prosecutors are subject to Rule 3.3, which requires a lawyer to take reasonable remedial measures to correct material evidence that the lawyer has offered when the lawyer comes to know of its falsity. See Rule 3.3, Comment [6A].

[6B] The prosecutor's duty to seek justice has traditionally been understood not only to require the prosecutor to take precautions to avoid convicting innocent individuals, but also to require the prosecutor to take reasonable remedial measures when it appears likely that an innocent person was wrongly convicted. Accordingly, though not required by these Rules, when a prosecutor comes to know of new and material evidence creating a reasonable likelihood that a person was wrongly convicted, the prosecutor should examine the evidence and undertake such further inquiry or investigation as may be necessary to determine whether the conviction was wrongful. The scope of the inquiry will depend on the circumstances. In some cases, the prosecutor may recognize the need to reinvestigate the underlying case; in others, it may be appropriate to await development of the record in collateral proceedings initiated by the defendant. The nature of the inquiry or investigation should be such as to provide a reasonable belief that the conviction should or should not be set aside.

[6C] Likewise, when a prosecutor comes to know of clear and convincing evidence establishing that a conviction was wrongful, the prosecutor should disclose the new evidence to the defendant so that defense counsel may conduct any necessary investigation and make any appropriate motions directed at setting aside the verdict, and should disclose the new evidence to the court or other appropriate authority so that the court can determine whether to initiate its own inquiry. The evidence should be disclosed in a timely manner, depending on the particular circumstances. For example, disclosure of the evidence might be deferred where it could prejudice the prosecutor's investigation into the matter. If the convicted defendant is unrepresented and cannot afford to retain counsel, the prosecutor should request that the court appoint counsel for purposes of these post-conviction proceedings. This Comment applies to new and material evidence of innocence, regardless of whether it could previously have been discovered by the defense.

[6D] If the prosecutor comes to know of clear and convincing evidence that the defendant was convicted of an offense that the defendant did not commit, the prosecutor should seek to remedy the injustice by taking appropriate steps to remedy the wrongful conviction. These steps may include, depending on the particular circumstances, disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant and, where appropriate, notifying the court that the prosecutor believes that the defendant was wrongfully convicted.

[6E] Comments [6B], [6C] and [6D] apply whether the new evidence comes to the attention of the prosecutor who obtained the defendant's conviction or to a different prosecutor. If the evidence comes to the attention of a prosecutor in a different prosecutor's office, the prosecutor should notify the office of the prosecutor who obtained the conviction.

© Michael Gaynor


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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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