Defense attorneys to DA: Zip it
Last week the three court-appointed defense attorneys for the accused Tops shooter asked the judge trying the case to impose a gag order on Erie County District Attorney John Flynn.
The defense wants Buffalo City Court Judge Craig Hannah to instruct the DA to refrain from speaking publicly about the case until the trial.
Their fear, according to a Buffalo News report: Flynn or his staff might reveal details of the case or make other statements that risked tainting the prospective jury pool “in such a way that it will be impossible for [the accused] to get a fair trial.”
The defense attorneys told the judge that the DA had not yet made untoward public remarks on the case. However, their concern is not unjustified. John Flynn is a man seldom at a loss for words.
Ask any journalist who’s covered one of his press conferences. Or peruse the video archives on the DA’s Facebook page for yourself. It is not unusual for the garrulous DA to step over the lines governing what a prosecutor may say to the news media about a pending case.
New York State’s rules governing pre-trial publicity, contained in the state court system’s Rules of Professional Conduct, are simple and restrictive:
A lawyer who is participating in or has participated in a criminal or civil matter shall not make 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.
According to the guidelines, prosecutors should not opine on the accused’s character or credibility, or discuss prior criminal history.
Prosecutors should not discuss evidence or speculate about what the evidence suggests. They should not offer “any opinion as to the guilt or innocence of a defendant or suspect in a criminal matter that could result in incarceration.”
Nor should prosecutors reveal any information that would “create a substantial risk of prejudicing an impartial trial.”
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In essence, the rules of conduct limit a prosecutor’s public comments to a reading of the charges, the identity of the accused unless prohibited by law, the status of the investigation or litigation, and “a request for assistance in obtaining evidence and information.”
Flynn — who declined to be interviewed or provide comment for this story, citing the proposed gag order — is frequently more forthcoming than that.
Take, for example, Flynn’s press conference last April regarding the charging of Cameryon Nelson, accused of killing another driver in a head-on collision. Nelson was charged with murder in the second degree, in addition to vehicular manslaughter, because Flynn believed the driver was high and participating in a drag race on Bailey Avenue.
“I can’t go into exactly what the evidence that I have is, and I can’t talk about any testing that was done,” Flynn said, almost simultaneously acknowledging the constraints on his commentary and violating them by referring to “testing.”
He proceeded to talk about what the testing indicated and offer an opinion of the accused’s guilt.
“Let’s just leave it as, during the course of the investigation I was able to ascertain evidence that [the accused] was high on marijuana,” he said.
Flynn also told reporters that investigators had retrieved the “black box” from the car of the accused — another direct reference to evidence to be introduced in the trial.
He said he would not go into what the evidence the car’s “black box” provided. And then he did.
“Let’s just put it this way,” he said. “I have evidence that Mr. Nelson was traveling at an extremely high rate of speed.”
In the case of political operative Steve Pigeon, charged last December with raping a child, Flynn’s apparent desire to make clear his outrage at the nature of the allegation led him to make statements a defense attorney might regard as prejudicial.
“I do not believe Mr. Pigeon should be out of jail,” Flynn told reporters, explaining he’d requested Pigeon be held without bail. “I believe he should be in jail for the rest of his life.”
“This is big boy stuff. This is rape. This isn’t child molestation. This is rape.”
Peppering remarks with “allegedly” and “innocent until proven guilty” — as Flynn usually does and did during the Pigeon press conference — doesn’t make these two public statements less prejudicial, according to court guidelines. The first suggests an opinion of the accused’s guilt. The second states the accusation as if it were already proven.
As a final example, consider Flynn’s announcement of the charges against Kente Bell, the disabled man who allegedly led Buffalo police on a citywide car chase, exchanging gunfire with officers, until the chase ended with Bell’s arrest in a parking lot on East Ferry Street.
At the beginning of the 45-minute press conference, Flynn read the charges and described the arraignment at ECMC, where Bell was being treated for gunshot wounds sustained when police surrounded and fired into his vehicle at the end of the chase.
Flynn then noted the accused had been denied bail and told reporters the next court date.
So far, so good. That’s just about everything the rules of conduct permits.
Then Flynn started talking about the fact Bell was on probation at the time of the incident for possession of an illegal gun.
First he reminded reporters that he was forbidden from discussing Bell’s criminal history.
“Pre-trial publicity when it comes to a defendant’s prior charges are a sticky subject and I don’t want to get in trouble,” he said, then spent nearly 10 minutes talking about Bell’s criminal history.
He noted the police commissioner was not constrained by the same rules as he was. He even suggested questions the reporters might ask him.
“With that said, I understand everyone has questions. What do you mean he’s out on probation? What do you mean he had a prior charge? Why is he out on the street?”
He then conjured a hypothetical figure — “not necessarily talking about Mr. Bell” — and posited that this imaginary person got in some sort of trouble in 2020 (like Bell), but was cooperative with police, had no arrests prior to that incident (like Bell), and had been crippled years earlier by a gunshot wound (like Bell).
Such a sympathetic person might receive (as Bell did) a sentence of probation instead of jail time for the felony with which he’d been charged, Flynn said.
And there was Bell’s prior criminal history, served to the press by the district attorney who had just finished saying he couldn’t talk about it.
“I think I’m okay,” he said, shooting a questioning glance at a staff member off camera. “I think I walked that line okay.”
Flynn went on to describe the chase. He said that he was certain Bell had fired the first shot, that most of the gunplay occurred on the East Side, that Bell was the only shooter besides the police, that Bell’s gun was damaged by gunfire, that Bell might have been “banged up and bruised” from being tossed around in the car during the chase, that Bell might have grown mentally unstable in the last two years, and that Bell’s car might have been disabled by a bullet to the engine block (“I’m not a car guy”).
Taken together, Flynn’s assertions sounded more like the opening statement at a trial than a reading of the charges.
“It’s literally out of a movie,” Flynn said of the chaotic scene that left three police officers with minor gunshot wounds and Bell shot numerous times — injuries Flynn described in detail to the news media, though that information, too, might have been better saved for the trial.
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Last Wednesday, at a hearing on the proposed gag order, Flynn told Hannah he preferred the judge rule against the defense team’s motion but was amenable to an “alternative” agreement.
He promised to keep his lips zipped.
“Once the arraignment on the indictment happens, you won’t hear a word out of me,” Flynn told the judge. “You can ask anyone in this town — any media member — once the arraignment on the indictment occurs, I don’t say a word until the trial is over.”
Hannah is expected to rule on the gag order motion this week.