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February 25, 2007

Questioning prosecutorial discretion ... when blogging

I am always eager to give equal time after a defender post, so thanks to How Appealing here's a link to an interesting story about questions raised concerning blogging prosecutors:

Ed Jagels launched a blog last year.  Normally, yet another blog wouldn't attract any attention, much less a story in the local paper.  Jagels, however, stands apart from the thousands of people who post their opinions online every day. He's the district attorney of Kern County, and he posted his discourse — a one-page column detailing what he called "shoddy journalism" by the Bakersfield Californian newspaper — on the publicly funded county Web site.

Jagels, the county's district attorney since 1983, isn't the only civic official taking his case to the blogosphere.  Santa Clara County's recently retired head prosecutor, San Diego's city attorney and the lead prosecutor in Fayette County, Ky., are among those who also have waged online campaigns tackling issues ranging from news coverage and court decisions to politics and their own accomplishments.

The trend is raising questions about ethical impropriety and legality as well as plain common sense. Those concerns are particularly acute, experts say, if prosecutors are commenting on pending cases. They warn that these public officials may be opening themselves up to lawsuits and appeals — which taxpayers would end up paying for.

"Prosecutors are supposed to stay above the fray. They have to give the public the idea that they are impartial, unbiased," said attorney Diane Karpman, who writes an ethics column for the California Bar Journal. Blogging could impair their "ability to prosecute cases in a fair and objective manner," she said. "It's not seemly, and I don't think it's appropriate," Karpman said.

Some journalists, public relations experts and other attorneys counter that prosecutors have a First Amendment right to publish their opinions — but question the wisdom of their doing so.

Readers probably will not be surprised to hear I heartily endorse every professional use of this amazing medium.

February 25, 2007 at 06:40 PM | Permalink


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Let's face it, elected District Attorneys in most places are politicians and when the local media is unwilling - as the San Jose Mercury News was - to print the detailed facts of the opposing view already in the court record, the DA is going to respond.

What I find most disturbing is the quote from Susan Goldberg in the linked article. While it is true the San Jose Mercury News did give the DA's Office an opportunity to respond, they refused to print the individual details of the response or only printed selected information. Not suprisingly those additional details ended up on the DA website. The article states that Susan Goldbery "believes [George Kennedy] and other blogging public officials are simply trying to circumvent the media." Now you know why.

Having personally responded to press inquiries in a publicized national case, I can say that the press was not interested in anything except me saying something that would generate controversy or disclose confidential information in violation of my ethical responsibilities. There was simply no respect for the process that I am ethically bound to uphold.

Posted by: David | Feb 25, 2007 9:45:38 PM

I know for a fact that, by and large, David is correct about the distorting prism of the media. Nonetheless, an elected District Attorney who blogs under their own name about a pending case runs the risk of violating the exacting ethical rules which all prosecutors must obey. I would agree with Diane Karpman -- such blogging should probably be disfavored.

Now, about pseudonymous blogging... :)

Posted by: NCProsecutor | Feb 25, 2007 10:13:20 PM

Speaking of mean justice, er, Kern County...

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Posted by: goblin | Feb 26, 2007 6:15:49 AM

Oh, woe upon the poor prosecutor. He or she of absolute power, who can charge anyone with anything, can seek virtually any sentence available, and can do it all with the immense power of the state (or federal govt) and, in the vast vast vast majority of cases, the public behind him or her. But oh, sure, once in a while some uppity newspaper decides not to play along and repeat word-for-word the press relases out of the prosecutor's office, and my goodness the heavens are falling. My heart bleeds.

Posted by: A | Feb 26, 2007 9:57:02 AM

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