There is No Such Thing as Bad Publicity!—Unless You’re in Trial: Anonymous Blogging Costs Federal Prosecutors a Judicial Victory

Now more than ever, lawyers must be mindful of electronic communications. From the 140 characters allowed on Twitter, to the status updates on Facebook, you can now share your thoughts with millions of people in seconds.

In 2005, two people were killed and four others were wounded by police officers from New Orleans; all the victims were unarmed. The New Orleans police allegedly covered up the incident by falsely reporting that seven officers had responded to an “officer down” call and upon their arrival at the Danziger Bridge, four people had opened fire against them. In 2011, five of the officers were convicted.

Those convictions have since been vacated and a retrial has been ordered due to the conduct of three federal prosecutors, one of whom was directly involved in the case.  The federal prosecutors adopted online pseudonyms and authored incendiary blog posts regarding the incident during the 2011 trial. The officers felt that they were stripped of a fair trial due to the inflammatory posts. The trial judge agreed and ordered a retrial.

The federal prosecutors’ online activity creates an issue under Model Rule 3.6, which prohibits a lawyer from making certain extrajudicial statements. Because jurors today are likely to go online after a day in court, such prosecutorial misconduct heightens the risk of breaching ethical standards.

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