December 13, 2008

Victoria Toensing thinks Patrick Fitzgerald should can the emotional theatrics.

It's not right for a prosecutor to express his outrage, she says:
... Justice Department guidelines [say] that prior to trial a "prosecutor shall refrain from making extrajudicial comments that pose a serious and imminent threat of heightening public condemnation of the accused." The prosecutor is permitted to "inform the public of the nature and extent" of the charges. In the vernacular of all of us who practice criminal law, that means the prosecutor may not go "beyond the four corners" -- the specific facts -- in the complaint or indictment...
Fitzgerald said what Blagojevich did "would make Lincoln roll over in his grave" and so forth. Clearly, inappropriate, according to Toensing, who seems to think Fitzgerald was emboldened by the adulation he received in the media over the way he treated Scooter Libby:
In his news conference in October 2005 announcing the indictment of Scooter Libby for obstruction of justice, he compared himself to an umpire who "gets sand thrown in his eyes." The umpire is "trying to figure what happened and somebody blocked" his view. With this statement, Mr. Fitzgerald made us all believe he could not find the person who leaked Valerie Plame's name as a CIA operative because of Mr. Libby. What we all now know is that Mr. Fitzgerald knew well before he ever started the investigation in January 2004 that Richard Armitage was the leaker and nothing Mr. Libby did or did not do threw sand in his eyes. In fact -- since there was no crime -- there was not even a game for the umpire to call.

In the Libby case, rather than suffer criticism, Mr. Fitzgerald became a media darling. And so in the Blagojevich case he returned to the microphone. Throughout the press conference about Gov. Blagojevich, Mr. Fitzgerald talked beyond the four corners of the complaint. He repeatedly characterized the conduct as "appalling." He opined that the governor "has taken us to a new low," while going on a "political corruption crime spree."
Let's get back to super-square prosecutors -- confined by the four corners.

17 comments:

Jeff with one 'f' said...

He doesn't understand- the media only celebrates unprofessional, self-aggrandizing behavior when it's directed against Republicans! ...or laws that the left dislike and blame on the right, even if the Democratic Party was in control when they were passed (cough, Don't Ask Don't Tell, cough).

Maguro said...

Maybe those baseball analogies aren't so great after all.

Darcy said...

Victoria is right (adore her and her husband, btw). I do admire Fitzgerald, but these theatrics I can do without. Reminds me a little bit of that Duke rape hoax prosecutor. I have thankfully forgotten his name for the moment.

Trooper York said...

This guy is an out of control publicity hound combining the worst features of Rudy Giuliani and Eliot Spitzer. Obama is crazy if he doesn't fire all the US Attorney's and replace them as every President does when he comes into office. He must know it would only be a problem if he were a Republican. As a Democrat he can do what he wants and not sweat it at all.

Richard Dolan said...

Toensing has a point, although a high profile political case may not be the best place to make it. Politicos usually have the ability to respond, even where judicial gag orders or court rules would prevent an ordinary defendant from doing so. For example, Libby's defenders answered Fitzpatrick tit for tat, and got Libby's narrative about the 'non-investigation that created the crime if there was one' wide public exposure before the jury was impanelled. If Blago has a narrative -- and he will, particularly about the "selling of the Senate seat" stuff, since a lot of the criminal complaint describes only a vulgar effort to get political advantage from a political appointment -- it too will get wide exposure. It's already started. In part all of that is just a reflection of the power of high office and the cronyism that goes with it, and in part the fact that political cases often take on a partisan spin where the Ds and Rs feel a need to demonstrate team loyalty. The defendant has a built-in cheering section.

The most powerful demonstration of the politico's power to fight in the PR ring against a prosecutor came when Clinton just eviscerated Ken Starr during the investigatory phase of that case, to the point where the perjurer and serial philanderer became the hero/victim of the whole thing.

It's the ordinary albeit heinous criminal cases generating lots of local interest and publicity where prosecutorial preening for the cameras can sometimes impact on a defendant's ability to get a fair trial. Cops and local DAs know how to get publicity, from the initial perp walk for the cameras, to the press conference announcing the arrest or charges, to the leaks from an unnamed source with access to grand jury testimony, etc., and they use it routinely. Defendants in those cases don't often have willing or able surrogates who can get their side of the story out, and defense lawyers can be hampered from doing so by court rules, gag orders or merely a disinterested press from doing so.

In all events, it's doubtful that any of this actually impacts on a defendant's right to a fair trial -- after all, that's the concern motivating the ethical rules -- except in the most unusual circumstances. Courts are skeptical of pre-trial publicity claims. And in Blago's case, the transcripts were so sensational that nothing Fitzpatrick added really made much difference. All in all, it's hard to get too excited about Fitz's misstep, assuming there was one.

jdeeripper said...

Toensing, who seems to think Fitzgerald was emboldened by the adulation he received in the media over the way he treated Scooter Libby

I agree. At first I thought the guy was more like New York Police Commissioner Ray Kelly.

Then he turned into a moralizing drama queen ala Spitzer.

SteveR said...

Just call an infield fly and avoid the ungentlemanly theatrics

reader_iam said...

Cynics who see corruption as pervasive in politics are wrong.

LMAO at that weirdly humorous and insipid piece by Dan Rostenkowski.

/not-entirely OT (depending on how one looks at it)

bearbee said...

Another 'victim' of arrogance and 'power corrupts.'
Reason enough that government power positions should have reasonable term limitations, preferably self-imposed, otherwise statutory.

Titusisveryrelaxed said...

I agree. He is all into the drama at those press conferences.

Just the facts please.

Big Mike said...

Some people really learn to love that old media spotlight, don't they? As others in this thread have pointed out, it's afflicted folks like Spitzer (and I'd include Ken Starr in that list, my Republicanism notwithstanding).

Bottom line: if a city whose political establishment includes Richard Daley the son and included Dan Rostenkowski, Richard Daley the father, John Stroger, and ward heelers too numerous to name is going to make Lincoln "roll over in his grave" then the great man's skeleton has been spinning at near light speed for a nearly a century.

rcocean said...

Most Independent Prosecutors are drama queens. Walsh in Iran Contra was the worst. A sanctimonious, pompous ass who dragged his investigation our for 6 years without finding much of anything.

Trooper York said...

Fitzgerald should know that fame as a prosecutor is especially fleeting. The prototype for the crusading DA was of course Thomas Dewey who parlayed his crime busting into a governorship and the Republican nomination for President. Something that elude even such a famous prosecutor as Rudy Giuliani. He was famous as an incorruptible foe of organized crime.

In 1991 Hollywood produced a cheesy movie called Mobster starring Christian Slater, Costas Mandylor, and the immortal Richard Grieco. One of the main plot devices was that these mobsters were paying a bride to Thomas Dewey. From crusading prosecutor and Presidential candidate to bride taking corrupt bagman in less than forty years.

Fame is fleeting. Happy Fitz mass.

Simon said...

He's just adding verbal emphasis - he's telling listeners why they should sit up and pay attention to a story about yet more corruption in Illinois. Yeah - you think you've heard it all, but this one is messed up even by this place's standards!, he was saying.

Der Hahn said...

They predicted Patrick Fitzgerald was going to frog-march a high-ranking presidental advisor out of the White House, and they might yet be right!

Bob said...

Fitz is undertaking an employment negotiation here. Obama will be loath to fire him because then it makes Obama look like he's got something to hide. Fitz keeps the scope of the investigation focused on Blago. And, wink wink, finds no trail to Obama's crew. Now Blago plays the dunce (and what an act it is) who takes the fall. And then after the trial everyone takes a bow and says the how the corruption has been cleaned. The press will be able to point at those "probing questions" asked of Obama. Its just the American version of the Roman Senate less the swordplay and coliseum.

Freder Frederson said...

So we're supposed to listen to anything Toesning has to say about Fitzgerald? This is the same Toesing who lied so appallingly under oath in her congressional testimony on the Plame affair that Waxman gave her an opportunity to amend her testimony. She hates Fitzgerald with a passion.