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Victoria Toensing thinks Patrick Fitzgerald should can the emotional theatrics.

It's not right for a prosecutor to express his outrage, she says:

... Justice Department guidelines [say] that prior to trial a "prosecutor shall refrain from making extrajudicial comments that pose a serious and imminent threat of heightening public condemnation of the accused." The prosecutor is permitted to "inform the public of the nature and extent" of the charges. In the vernacular of all of us who practice criminal law, that means the prosecutor may not go "beyond the four corners" -- the specific facts -- in the complaint or indictment...

Fitzgerald said what Blagojevich did "would make Lincoln roll over in his grave" and so forth. Clearly, inappropriate, according to Toensing, who seems to think Fitzgerald was emboldened by the adulation he received in the media over the way he treated Scooter Libby:

In his news conference in October 2005 announcing the indictment of Scooter Libby for obstruction of justice, he compared himself to an umpire who "gets sand thrown in his eyes." The umpire is "trying to figure what happened and somebody blocked" his view. With this statement, Mr. Fitzgerald made us all believe he could not find the person who leaked Valerie Plame's name as a CIA operative because of Mr. Libby. What we all now know is that Mr. Fitzgerald knew well before he ever started the investigation in January 2004 that Richard Armitage was the leaker and nothing Mr. Libby did or did not do threw sand in his eyes. In fact -- since there was no crime -- there was not even a game for the umpire to call.

In the Libby case, rather than suffer criticism, Mr. Fitzgerald became a media darling. And so in the Blagojevich case he returned to the microphone. Throughout the press conference about Gov. Blagojevich, Mr. Fitzgerald talked beyond the four corners of the complaint. He repeatedly characterized the conduct as "appalling." He opined that the governor "has taken us to a new low," while going on a "political corruption crime spree."

Let's get back to super-square prosecutors -- confined by the four corners.

Full post as published by Althouse on December 13, 2008 (boomark / email).