In Re Complaint as to the Conduct of Lasswell

673 P.2d 855, 296 Or. 121, 1983 Ore. LEXIS 1769

• Court: Oregon Supreme Court
• Decided: December 6, 1983
• Docket: Bar 81-70; SC 29633
• Status: Published

Opinions

PER CURIAM

The Oregon State Bar charges the accused, the district attorney of Douglas County, with violating DR 7-107(B) by commenting in a newspaper interview and a television program on facts relating to a large scale investigation into illegal drug traffic that had led to the arrest and indictment of some 50 persons. The Trial Board found the accused not guilty. The Disciplinary Review Board found the newspaper interview to have been a violation, two members of the board dissenting.¹ For the reasons that follow, we find the accused not guilty of the disciplinary violation.

The pertinent parts of DR 7-107 provide:

“(B) A lawyer or firm associated with the prosecution or defense of a criminal matter shall not, from the time of the filing of a complaint, information or indictment, the issuance of an arrest warrant or arrest, until the commencement of the trial or disposition without trial, make or participate in making an extrajudicial statement for public communication that relates to:

“(1) The character, reputation or prior criminal record (including arrests, indictments, or other charges of crime) of the accused.

“(2) The possibility of a plea of guilty of the offenses charged or to a lesser offense.

“(3) The existence or contents of any confession, admission or statement given by the accused or his refusal or failure to make a statement.

“(4) The performance or results of any examinations or tests or the refusal or failure of the accused to submit to examinations or tests.

“(5) The identity, testimony or credibility of a prospective witness.

“(6) Any opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case.

“(H) The foregoing provisions of DR 7-107 do not preclude a lawyer from replying to charges of misconduct publicly made against him or from participating in the proceedings of legislative, administrative or other investigative bodies.”

The accused raises a constitutional challenge to any interpretation of the disciplinary rule that would reach the kind of extrajudicial statements involved in this case. Unquestionably any rule that in terms directs persons not to make particular kinds of statements is difficult to square with constitutional guarantees of freedom of expression, particularly those of the Oregon Constitution. The Disciplinary Review Board addressed the constitutionally permissible reach of DR 7-107 in the light of prior decisions of this court, and we shall follow the same course before turning to the facts.

Article I, section 8 of the Oregon Constitution provides:

“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”

Recent decisions have explained that this guarantee forecloses the enactment of prohibitory laws, at least in the form of outright prohibitions backed by punitive sanctions, that in terms forbid speech or writing “on any subject whatever,” unless it can be shown that the prohibition falls within an original or modern version of a historically established exception that was not meant to be ended by the liberating principles and purposes for which the constitutional guarantees of free expression were adopted. See State v. Robertson/Young, 293 Or 402, 412, 416-417, 433-434, 649 P2d 569 (1982); State v. Spencer, 289 Or 225, 228, 611 P2d 1147 (1980). The qualifying clause that a person remains responsible for abusing rights of free expression has been held to mean civil responsibility for harm done, in particular, harm to the interest in reputation for which the constitution itself guarantees a remedy in due course of law. Or Const Art I, § 10; Wheeler v. Green, 286 Or 99, 118-119, 593 P2d 777 (1979); see also Hall v. May Dept. Stores Co., 292 Or 131, 637 P2d 126 (1981). Those decisions would preclude enactment of the text of DR 7-107 as an outright prohibition against disclosure or discussion by persons generally or against publication by those to whom the disclosure or comments were made.

But that does not decide the present issue. DR 7-107 is not a general prohibition against anyone who might disclose or discuss facts bearing on a pending criminal prosecution. The parts of DR 7-107(B) involved here are addressed specifically to “[a] lawyer * * * associated with the prosecution of a criminal matter.” And the potential sanction, though of course serious to a lawyer, is not punitive but professional. It is civil, not penal. The provisions relevant here are not even addressed to all lawyers but to prosecutors, who are officially and professionally responsible for proceeding with due regard for the prosecuted person’s right to a fair trial by an impartial jury. Or Const Art I, § 11.²

The point of the disciplinary rule, therefore, is not restraint of free expression by lawyers because they are lawyers. That could not survive the constitutional principles we reviewed in In re Richmond, 285 Or 469, 474-75, 591 P2d 728 (1979). Rather, the rule addresses the incompatibility between a prosecutor’s official function, including his responsibility to preserve the conditions for a fair trial, and speech that, though privileged against other than professional sanctions, vitiates the proper performance of that function under the circumstances of the specific case. In short, a lawyer is not denied freedom to speak, write, or publish; but when one exercises official responsibility for conducting a prosecution according to constitutional standards, one also undertakes the professional responsibility to protect those standards in what he or she says or writes. We conclude that DR 7-107(B) survives the accused’s constitutional challenge if it is narrowly interpreted so as to limit its coverage, in the words of article I, section 8, to a prosecutor’s “abuse” of the right “to speak, write, or print freely on any subject whatever.”

In addressing this interpretive issue, the Disciplinary Review Board noted that “[t]he precise constitutional questions which are here raised have not been fully addressed or resolved by the Oregon Supreme Court.” The board observed that in three disciplinary decisions under DR 7-107, In re Burrows, 290 Or 131, 618 P2d 1283 (1980), In re Richmond, supra, and In re Porter, 268 Or 417, 521 P2d 345 (1974), cert den 419 US 1056, 95 S Ct 639, 42 L Ed 2d 653 (1974), this court stated the criteria of proscribed public comments in various ways, sometimes referring to comments “designed” or “highly likely” to have a “prejudicial effect on lay factfinders,” In re Richmond, supra, 285 Or at 475, or on “prospective jurors,” In re Burrows, supra, 290 Or at 134, and sometimes to whether they “tend to prevent a fair trial,” In re Porter, supra, 268 Or at 422. The board also noted that a federal court, applying the first amendment, held that a mere likelihood of affecting a trial would not suffice but that a “serious and imminent threat” to a fair trial is required. Chicago Council of Lawyers v. Bauer, 522 F2d 242 (7th Cir 1975), cert den sub nom Cunningham v. Chicago Council of Lawyers, 427 US 912, 96 S Ct 3201, 49 L Ed 2d 1204 (1976).³

The board’s observation is well taken. The determination required to find that a prosecutor’s comments were “designed” or “highly likely” to interfere with a fair trial of disputed facts by lay factfinders deserves to be stated more precisely.

The disciplinary rule deals with purposes and prospective effects, not with completed harm. It addresses the prosecutor’s professional responsibility at the time he or she chooses what to speak or write. At that time it is incompatible with his or her professional performance in a concrete case to make extrajudicial statements on the matters covered by the rule either with the intent to affect the factfinding process in the case, or when a lawyer knows or is bound to know that the statements pose a serious and imminent threat to the process and acts with indifference to that effect. In a subsequent disciplinary inquiry, therefore, the question is not whether the tribunal believes that the lawyer’s comments impaired the fairness of an actual trial, which may or may not have taken place. The question, rather, is the lawyer’s intent or knowledge and indifference when making published statements that were highly likely to have this effect. Cf. State v. Kennedy, 295 , 666 P2d 1316 (1983) (applying a similar test to a prosecutor’s intent or knowledge in actually causing a mistrial). We conclude that this test for public statements is consistent not only with the constitutional principles already discussed but also with the prosecutor’s right as an elected public official to account for the conduct of his or her office and related law enforcement activities.⁴

In the present case, the charges concern statements made by the accused to a newspaper reporter on March 12, 1981, which resulted in an article in the March 15 issue of the Roseburg News-Review. The statements were preceded by these events: Law enforcement authorities in Douglas County undertook an extensive investigation of illegal drug traffic with the aid of an undercover agent who posed as a buyer in search of marijuana and other controlled substances. The district attorney’s staff obtained secret indictments against more than 50 persons, and on February 20,1981, most of the indicted persons were arrested and taken to temporary booking facilities at the Douglas County fairgrounds. There the accused, as district attorney, held a press conference to explain the events. During the following days description and discussion of the drug investigation and indictments occupied substantial space in the press. Many of the arrested persons denied guilt or claimed entrapment and various citizens were reported as speaking critically about the expenditure of substantial public funds on the undercover investigation and the conduct of the “raid.”

The reporter’s interview with the accused on March 12 led to the publication of a further article on March 15, 1981, which reported the allegedly prejudicial statements charged against the accused. To quote the majority of the Disciplinary Review Board:

“In this article the Accused is quoted as making the following statements: 1) ‘All of the persons arrested, aged 15 to 46, were sellers of narcotics’; 2) ‘These people sold because they were making some money’; 3) He (the Accused) expects a 90- to 100- percent conviction rate.”

The accused’s answer asserted that the published account did not accurately reflect the context of the questions asked him by the reporter. It also asserted that his remarks were made in response to published criticisms of his conduct in the investigation and therefore fell within the exception provided by DR 7-107(H). The Disciplinary Review Board concluded from the reporter’s notes and a subsequent memorandum obtained from the reporter and submitted to the board by the accused that the published article was a substantially accurate reflection of his remarks.⁵

Whether or not the facts were as the board found them, its conclusion that the accused violated DR 7-107(B)(5) and (6) was predicated in part on events which preceded the March 12 interview and which were not charged by the Oregon State Bar. See In re Thomas, 294 Or 505, 526, 659 P2d 960 (1983); In re Ainsworth, 289 Or 479, 614 P2d 1127 (1980). One of these events was the district attorney’s news conference at the fairgrounds on the morning of the arrests. Another was that “various articles” labeled the defendants, whose names had been published, as “sellers” and “dealers.” An obvious difficulty with DR 7-107 is the relationship between what the lawyer says and what appears in the public media. The disciplinary rule holds a lawyer responsible for what he or she actually says “for public communication,” even though it is the subsequent publication that threatens the prejudicial effect. At the same time, the lawyer’s intent to achieve or knowing indifference to causing that effect must be determined with regard to the setting and the predictable manner and form in which the remarks are expected to appear in public. The only charge before us is whether the accused violated the rule in the interview of March 12.

When that interview is tested by the standards we have set out, we do not think that it meets the criteria for a violation of DR 7-107(B). As noted in In re Richmond, 285 Or , DR 7-107 arose out of concern about the kind of “massive, pervasive and prejudicial publicity” before and during a criminal trial that led the Supreme Court to set aside a conviction for murder in Sheppard v. Maxwell, 384 US 333, 86 S Ct 1507, 16 L Ed 2d 600 (1966), circumstances which the court characterized as a “carnival atmosphere.” Nothing of the kind occurred here.

The Bar’s charges are based on the accused’s statements to the reporter that the persons arrested were “sellers” of unlawful substances, that they engaged in the trade in order to make money and would have sold more than the investigator bought, that the investigator did not “pester” people into making the sales, that the accused did not expect entrapment defenses to succeed, and that he foresaw a conviction rate of 90 to 100 percent. We think the point of the first statements was only that the investigation went after persons who engaged in selling controlled substances for the money to be made, not persons merely possessing, using, or sharing such substances.

Of the other statements, perhaps the most susceptible to criticism were that the undercover investigator did not “pester” people or engage in entrapment but was “very clean and * * * successful.” Assuming that the investigator was expected to testify at the eventual trials, this statement could be understood to refer to the “credibility of a prospective witness,” DR 7-107(B)(5), and if so understood, to risk influencing any future jurors who read it if the trials were imminent. Alternatively, the statement could be understood simply as a defense of the selection and employment of that particular agent against criticism of the money spent on his employment, which would bring it within the exception of paragraph (H). We are not persuaded that the quotation, in its context, unambiguously referred to the future credibility of the investigator as a potential witness nor that the statement posed a serious and imminent threat to the fair conduct of a specific trial.

Perhaps, also, an estimate that a prosecutor expects a conviction rate between 90 and 100 percent inferentially, though not literally, states an “opinion as to the guilt or innocence of the accused,” or of an undifferentiated 9/10ths of them. DR 7-107(B)(6). But the very fact that a conscientious prosecutor initiates a formal prosecution implies that he or she believes there is probable cause to seek a conviction, apart from any personal belief that the defendant is guilty beyond a reasonable doubt. Here the accused’s estimate did not identify any among the 50-odd indicted persons, whose names had been listed in a newspaper account three weeks earlier, at the time of the arrests. Perhaps such statements as these suffice as violations if circumstances compel the conclusion that they were made with a view toward the eventual trials rather than to defense of the preceding investigation. Certainly it is the better practice to avoid pretrial comment altogether. But departure from the best practice is not the same as a disciplinary violation.

The record in this case does not demonstrate that the accused intended his remarks in his March 12 interview to create seriously prejudicial beliefs in potential jurors in an impending trial, or that he was knowingly indifferent to a highly likely risk that they would have this effect. It is as plausible a conclusion that he was motivated by the purpose to account for the performance of his office in an operation that was the subject of public discussion. For these reasons we find the accused not guilty of the violations charged by the Bar.

1 The Bar’s second cause of complaint, alleging improper statements in a television broadcast, was not pursued by the Bar or considered by the boards, leaving nothing to be considered in this court.

2 We need not here consider the constitutional position of defense counsel, who do not invoke the judicial machinery and whose responsibilities are not necessarily identical.

3 The Bar cites Hirschkop v. Snead, 594 F2d 356 (4th Cir 1979), as contrary to Chicago Council of Lawyers because it refers to the likelihood of prejudice to a fair trial. We note that the two tests are not inconsistent, because the latter refers to the degree of probability of a prejudicial effect while the former refers to its magnitude and imminence. We follow both in holding that the accused’s statements must intend or be knowingly indifferent to highly probable serious prejudice to an imminent procedure before lay factfinders.

4 The prosecutor in In re Burrows, supra, like Mr. Richmond, was in fact found jnot guilty of a violation. Article I, section 8 and its modern analysis were not discussed in In re Porter, supra.

5 The Trial Board’s “findings of fact” stated only the conclusion that the Bar “failed to prove” a violation, that the accused was honest, straightforward, and candid, and that his opinions “were quoted partially out of context and in response to accusations concerning his public office provided to the reporter by the officer of the public defender in Douglas County.” This does not come close to meeting the requirement of Oregon State Bar Rule of Procedure § 46.1:

“The trial board shall render... a written opinion including findings of fact, conclusions and recommendations.”