Legal Ethics Issues in “Making a Murderer” – Part 1 of ?

So, the latest rage in Netflix binge-watching is the documentary “Making a Murderer.”  If you haven’t been engaged in a digital detox program over the last month or so, then you are likely aware of its existence.   My wife and I just finished it up last evening.  If you haven’t watched it, you really should as it is quite compelling.  It will only take you roughly 10 hours if you do it in one sitting, I’ll wait here until you get back.

Ok.  Great.  Pretty compelling stuff, huh?

Now, I have my own views about the cases, the documentary, how it makes me feel about the system, etc.  (In addition to watching the series, I’ve also spent some time on the internet reading about the underlying case and things that were left out, etc.)  But I’m not going to get into a bunch of that on this blog because, strictly speaking, even the “law of lawyering,” doesn’t encompass many of the topics worth discussing.  On the broader issue, I will say just this (I guess):  I have no doubt that there was more to the prosecution case presented to the jury than was presented during the documentary.  This would have to be true given the length of the trial versus the length of the documentary.  (I will say that, even before scouring the web to read articles to reward myself for staying unspoiled during the run of watching the show, I found it fascinating on reflection that almost none of what we saw, and what was explored, in the documentary had anything to do with what, if any, motive the prosecution offered for why the accused would have murdered the victim.  Concurrently, though, there also was no exploration of what, if anything, the defense lawyers said and did to exploit the notion that there seemed to be no motive for the commission of the crime).  If you have already watched the documentary series, and want to learn just a bit more through articles that will certainly spoil you as to the current state of affairs for the subjects of the series if you haven’t watched, you could do worse than to read these three pieces: here, here, and here.

The popularity of this documentary and the issues it touches on does provide excellent fodder for occasional discussions of certain legal ethics issues.  I really wasn’t sure I was going to do tackle any of them here, but then I finally remembered (somewhere between watching Episodes 6 and 7 and last night’s watching of the final three episodes) from where I knew the name of the lead prosecutor.  I covered his 4-month suspension from the practice of law in my 2014 Ethics Roadshow.  I won’t pile on about the details of that because, at least at a surface level it has nothing to do with the case(s) explored in the documentary, but I will give you this link that points to that story itself if you want to go familiarize yourself.

What I do want to explore – and see if I can do so in way that doesn’t truly spoil anything for someone who hasn’t watched the series yet — is an instance of conduct, involving the prosecutor, that seemed to me at the time I was watching to clearly have run afoul of the lawyer ethics rules.

There is a memorable press conference, shown in Episode 3, held by the prosecutor.  You can read a transcript someone has made of the entire third episode online just by ginning up a decent Google search and that will get you the transcript of the remarks at the press conference.

Wisconsin, like most states, has (and had at the time of the press conference) an ethics rule governing a lawyer’s ability to make certain public statements about a pending matter in litigation.  Under the ABA Model Rules now (and back then), that rule is RPC 3.6, conveniently titled “Trial Publicity.”  RPC 3.6(a), applicable to lawyers in civil and criminal cases alike, is broadly designed to prevent lawyers from “mak[ing] an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”  At first blush, the kind of statements made in the press conference would certainly appear to be statements that are extremely likely to materially prejudice not one but two trials.  RPC 3.6(b)(2), however, goes on to make clear that, despite the general prohibition, a lawyer is still permitted to make an extrajudicial statement about “information contained in a public record.”  Which would mean that as long a lawyer puts enough detail into a court filing, repeating those details in a press conference would not violate RPC 3.6.

But, lawyers who are prosecutors also have special duties under another ethics rule, RPC 3.8.  And, under the ABA Model Rules, there exists a provision, RPC 3.8(f), that reads as follows:

except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial statements comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Now, if a rule like this had applied to the Wisconsin prosecutor, the press conference shown in Episode 3 would have violated this rule about six ways from Sunday.

Wisconsin, however, did not then (and does not now) have this rule in place.  Wisconsin has specifically declined to follow the ABA on this topic.  Thus, my initial instinct was wrong.  Whatever else I may think about the decision to hold the press conference and to have made the statements made (and the New York Times article I linked above indicates that the prosecutor himself has said he regrets holding that press conference), as long as the same contents were in the publicly-filed criminal complaint, then it would not have been an actionable violation of RPC 3.6 or 3.8 in Wisconsin.

Approximately 30 other states, including Tennessee, do have a provision identical to, or strongly similar to, RPC 3.8(f) and, thus, such a press conference by a prosecutor in those states would be a potentially disciplinable offense.

At some point, I will write a post about the troubling ethics issues raised by the acts and omissions of one of the lawyers for the minor defendant whose arrest was part of the subject matter of the press conference, but not today.