On Sundays, in churches across the United States, people turn their focus to ministers of the gospel, whom they trust to do what's right. On other days, in the local courthouse, county residents have similar expectations of a different kind of minister—the district attorney.
In Georgia and every other state, district attorneys are governed by ethics rules that identify them as "ministers of justice." While their enterprise is secular, we still rely on them to walk their talk. When they fail to do so, our faith in the legal system is shaken.
These ethics rules apply in the Rayshard Brooks shooting case. Some may cheer the speed with which District Attorney Paul Howard brought charges. Others may wonder why he didn't wait for the results of the independent investigators at the Georgia Bureau of Investigation, or bring the matter in front of the citizens who comprise the grand jury.
No matter which of these positions one holds, we can all agree that the district attorney ought to take great care to do his work properly. Yet, in at least three instances, Mr. Howard appears to have already violated state ethics rules.
One ethical rule requires prosecutors to refrain from making public statements that have a substantial likelihood of heightening public condemnation of the person accused. This doesn't mean prosecutors can't announce and describe criminal charges, but it does mean they must be particularly cautious, in outlining the facts, to avoid igniting animus against the defendants with the public and potential jurors. By showing crime scene photos and detailing alleged admissions from the officers—before any judge has ruled such evidence allowable in court—Mr. Howard violated this rule at his news conference.
Similarly, legal ethics regulations require prosecutors announcing charges to specify in their press statements that all defendants are presumed innocent. The rule literally prohibits public announcement of criminal charges "unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty."
For two decades, I taught a law school course on what lawyers and prosecutors can ethically say to the press. We covered this basic concept in the first few weeks. But the full video of Mr. Howard's news conference shows that he didn't comply with this rule.
The district attorney also claimed that officer Devin Brosnan will testify against former officer Garrett Rolfe. Even when confronted by a reporter with a denial by Brosnan's attorney, Mr. Howard doubled down. Telling potential jurors watching at home that one defendant is about to cooperate and testify against another defendant is almost a textbook violation of the rule that lawyers can't make press statements that have a substantial likelihood of material prejudice. Imagine if officer Brosnan doesn't testify, either at his trial or the Rolfe trial. Jurors who heard Mr. Howard's declaration will understandably wonder what happened, and such confusion could undermine their deliberations.
District attorneys are elected, so the substructure of politics is constantly underneath them. This is why prosecution decisions made just weeks away from an election must be undertaken with prudence. This case could have been handled by an outside special prosecutor, who would act without the taint of political calculus. Such judiciousness would enhance the credibility of the prosecution effort and send a message of gravitas to the 12 jurors in the court of law—as well as the millions of judges in the court of public opinion.
I've served as special prosecutor in several cases, and my work was aided by the fact that I didn't have to worry about voters or campaign donors questioning my judgment. Given that Mr. Howard is embroiled in a runoff campaign against an aggressive challenger, it's fair to inquire if his haste in bringing charges was fueled by politics rather than justice.
In 2006, a prosecutor in Durham, North Carolina faced a similar debacle. Fearing a looming election defeat, he acted impulsively and violated ethics rules in charging Duke University lacrosse players with rape. His overblown press conference and subsequent media circus ran afoul of the legal rules. All charges were later dismissed.
As a prosecutor, I've spoken to the press on many occasions. And early in my career, when I was the spokesman for federal prosecutors who were bringing police brutality charges, I briefed countless media outlets. Yet, in each press encounter, I reminded myself of the special duty prosecutors have to be circumspect in commenting.
These rules aren't optional. Violations can lead to disbarment. In fact, the prosecutor who acted unethically in the Duke lacrosse case was both disbarred and sent to jail.
The charges in the Brooks shooting are serious. Yet, in order to ensure justice for the defendants and the Brooks family, prosecutors have an obligation to bring their case properly. Indeed, those who want to see these officers convicted ought to insist that Mr. Howard scrupulously avoid missteps at the beginning of his prosecution, lest they lead to a dismissal, mistrial or overturned verdict.
We trust our ministers of faith to meet a higher standard and be guided by higher principles. They must be held accountable when they fall short. District Attorney Howard, a minister of justice, should be held to that same high standard.
Mark R. Weaver is a prosecutor in Ohio and communications consultant who previously served as spokesman for the Civil Rights Division of the United States Department of Justice. He is the author of the book A Wordsmith's Work. Twitter: @MarkRWeaver.
The views expressed in this article are the writer's own.
Uncommon Knowledge
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
