Legal Question in Criminal Law in Michigan

Re: media

I don't disagree with the first reply. But I feel compelled to respond further, because I work in a prosecutor's office.

Criminal cases are public. Prosecutors represent "The People", so the prosecutor's executive decisions, like charging you, can't be "gagged". Criminal charges are filed with a court, and the charging document (the Complaint) is a public record. It won't be "sealed", and 99% of court hearings will be open to the general public and media. If you've been charged, it's probably embarrassing and you'd like it to be 'secret' and for the media to not be involved. Sorry, but that can't be done.

Most prosecutor press releases mention the defendant's name, the charges and possible penalties. What's wrong with that?

In my experience, Prosecutors ARE sensitive about releasing too much information to the public or the media about case facts ... especially before the facts are revealed in open court (at arraignment, preliminary examinations, motion hearings or trial). Prosecutors must act with fairness, and "tainting the jury pool" isn't 'playing fair', so we're all sensitive about case facts getting into the newspaper before we've revealed them in court. Some offices won't even release police reports to the general public or the media if doing so will hamper the case prosecution.

Also, very few cases are deemed by prosecutors to be "news-worthy". We don't issue press releases on every case. And I know from personal experience that not all of our press releases are mentioned on local TV or printed in the papers. TV, radio and newspaper editors decide what they'll publish, on their own standards. We can't "make" them announce our press releases.

So-called "gag orders" are quite rare. The better protections that you have are the ethical rules that apply to prosecutors (and not to criminal defense attorneys) to act only to seek justice, not to seek convictions. If the prosecutor's conduct has deprived you of a fair trial, the case can be moved to another area that doesn't know about the case.

All attorneys, including Prosecutors, must comply with the Michigan Rules of Professional Conduct. You can read the rules and comments interpreting the rules on-line at the State Bar of Michigan web site: http://www.michbar.org/directory/mrpc.html. These rules include Rule 3.6, regarding "trial publicity" --- "A lawyer shall not make 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 substantial likelihood of materially prejudicing an adjudicative proceeding."

There's even a Rule that speaks only to Prosecutors: Rule 3.8 ("Special Responsibilities of a Prosecutor"), which includes a reference to Rule 3.6.

So, you and your lawyer would have to convince a judge that the prosecutor has, essentially, violated ethical rules and also prove that it has deprived you of an oppportunity for a fair trial.

Re: media

The first amendment is pretty strong. So it is likely that communication with the press would be permitted. However, often a judge can admonish the parties not to talk to the press in fear of tanting the potential jury pool. The defense could argue for a change of venue as a result.

If a judge enters a "gag order" preventing the parties from speaking publicly, this might be challenged by the press on the basis of the first amendment (freedom of speech) which is usually upheld.

Sanford A. Schulman, Esq.

407 East Fort STreet

Suite 110

Detroit, Michigan 48226

(313) 963-4740