Ethics

The taped conversations of Gov Blagojevich were jaw-dropping, but how far can Patrick Fitzgerald go in his public statements?  Model Rules 3.6 and 3.8(f) permit prosecutors to inform the public of certain information related to an accusation.  But some of Fitzgerald's rhetorical flourishes are hard to shoehorn into the rules.  Of course, he's probably regulated by the DOJ's rules.

UPDATE: The DOJ has these rules ( Download 28cfr50.2 ) about public comments.  They say, "disclosures should include only incontrovertible factual matters, and should not include subjective observations."  50.2(b)(3).  I don't see how the comment about Lincoln rolling over in his grave is OK.  Perhaps given Fitzgerald's reputation and the nature of the recordings some observers will conclude that Fitzgerald was guilty only of understatement, but I wish he had hewed the line more carefully.  (Hat tip to a listserv correspondent for the link to the policy.)

Some might argue that the traditional rule forbids statements that have a material chance of affecting a jury, and that nothing Fitzgerald said yesterday would have any such effect.  I understand that argument, but, at the same time, there are rules forbidding certain statements regardless of probable outcome.