When the prosecutor exposes himself to civil liability

When a prosecutor makes extra-judicial statements, to the jury following trial, and/or to the media outside the courthouse – assuming the statements are not true, they are acting maliciously outside of their duties as a prosecutor and they have exposed themselves to liability for defamation. There has been a lot of hullabaloo lately about a prosecutor who harangued the jury following a high profile not guilty verdict in Harris County, Texas – one of the defense lawyers then wrote an op ed in a local paper describing what happened:

Apropos of nothing, the junior prosecutor who had handled almost all of the most important parts of the trial announced that he wanted the jury to know all about “the real Michael Brown.” In a matter of moments, and over DeGuerin’s objection, the prosecutor tainted the jury with the details surrounding Brown’s plea of no contest and his deferred adjudication for assaulting his third wife in 2003 that made this case a felony, not to mention a number of assertions disputed by the defense disparaging Brown’s character and reputation – the very evidence Judge Wallace had properly excluded from trial. But the prosecutor was not quite through. By repeating these reckless allegations to the battery of cameras, microphones and notepads outside the courtroom, the prosecutor took a backhanded slap at Judge Wallace for following the law and the jurors for following their oaths.

Assuming that the statements about Brown were true, there is no civil liability on the part of the prosecutor, although, per the commentary in the links below, the prosecutor has clearly violated the ethics rules in Texas. Whether the statements by the prosecutor were truthful or not, the op-ed by the defense lawyer has done nothing but draw more attention to his client’s predicament and his client’s past, to his client’s detriment. There was no good purpose for writing the op-ed other than to bring the public’s attention to what appears to be a common tactic of the Harris County prosecutor’s office, and to slap down the prosecutor’s office in the public eye. It certainly has done nothing to benefit his client.
If the prosecutor’s statements were not true and if there were a possibility of civil suit against the prosecutor for his actions, Brown’s attorney’s statements to the newspaper only compounded the harm done by the prosecutor.
Mark Bennett, Scott Greenfield, Paul Kennedy, and Murray Newman have more on the story.
A few years ago, following a not guilty in a domestic violence case in the Horry County Central Jury Court, a juror called my office the morning after trial, to let me know that after I had left the courthouse the judge and the prosecutor kept the jurors to talk with them. The juror told me that the prosecutor then proceeded to tell them about why my client was guilty, about the evidence that they did not hear during the trial, and why they had made the wrong decision. According to the juror, the prosecutor told them that my client was a wife-beater and that he was going to beat her again because of their decision. The juror stated that when he spoke up and told the prosecutor he was out of line, the prosecutor yelled at him.
Prosecutors (and in some cases judges) holding jurors after trial to let them know what they think about their decision, under the guise of answering the jurors’ questions about the process, is a practice that is not limited to Harris County, Texas.

Leave a Reply

Your email address will not be published. Required fields are marked *