The government has filed a petition for rehearing. It concludes,
"If the prosecutor had known that the Singer case was going to the jury on Monday, and if the prosecutor had known that the Portland Press Herald was going to make a front-page story out of his remarks, and if the prosecutor had known that the story would focus on 'white-collar crime', and if the prosecutor had known that his reference to that phrase would later be coupled to the Singer case, one would have to say that the prosecutor's control was indiscreet, to say the least. We submit, however, that none of these conditions applied here and that the timing of the regrettable publicity was wholly beyond the prosecutor's control."
We divide this in two parts.
Timing. It appears from the petition that the trial commenced on Monday, July 14; that on Thursday, July 17, the chief prosecutor, Mr. Mills, was interviewed as a "guest personality" by members of the media; that the interview was taped for subsequent broadcast; that Mr. Mills expected, or concededly, should have expected, that the broadcast "probably" would occur on Sunday, July 20; that the case went to the jury on Monday, following the newspaper publication; that on one occasion, six months prior, the court had submitted a case to the jury on a Saturday morning.
On this basis, with all due respect to the government, we cannot accept the claim that the "timing . . . was wholly beyond the prosecutor's control." There was no obligation on Mr. Mills' part, at least vis-a-vis the government, to appear as a guest speaker on this particular Thursday. On his own concession, release the following Sunday was probable, and, obviously, the next morning was when the broadcast would be reported in the press. There is no suggestion in the petition that he thought on Thursday that the case would go to the jury on Friday. Courts do not normally sit Saturdays. There is no suggestion that he in fact thought there would be an exception made in this case. Hence, rather than being beyond control, the timing of what the government concedes was regrettable publicity, was entirely foreseeable.
Subject Matter. The petition alleges that Mr. Mills "had . . . only minimal or incidental control over the televised interview." But clearly he had control over whether he gave the interview or not. Nor can it be though that he did not have control over what he said. Equally difficult to understand is the allegation that he "had no control over the subject matter of the newspaper publicity." There is no claim of misquotation. The only contention is that the newspaper emphasized ("zeroed in on") some particular remarks. One would be highly unsophisticated to suppose that a paper does not find some remarks more newsworthy than others.
In sum, the petition does not support its above quoted conclusion, either as to timeliness, or as to subject matter. The most that could be said is that Mr. Mills may not have expected front page publicity. But we would be the last to suggest that a newspaper, assuming that something is printable, cannot choose the place and the manner. The petition almost suggests that we are interfering with a free press. A careful reading of our opinion shows that we said the reverse. It is because of the rights of the press that the prosecutor must choose a time to speak that will not interfere with his obligation of fairness to defendants.
This would be the end of the matter were it not for the content of a memorandum filed by the Department of Justice and the United States Attorneys elsewhere in this circuit which shows a misconception of what we have held. There is a vast difference between a United States Attorney's "keeping the public informed on the general administration of federal criminal justice in his district," and telling a jury that a particular judge before whom it is sitting imposes inadequate sentences in the type of case they are hearing. It is hornbook law that a judge cannot inform a jury in advance of the sentence he will impose. United States v. Glick, 2 Cir., 1972, 463 F.2d 491, 494; Demetree v. United States, 5 Cir., 1953, 207 F.2d 892, 895-96.1 For reasons pointed out in our opinion, it may be even worse for the prosecutor to state that the sentence will be too small.
To answer the Department's memorandum, we would say the same thing, whether it be in a small district, or a large one. But by the same token, on rereading our opinion, we see no basis for saying that we have imposed a "gag rule" in any district. A United States Attorney is free at any time, for example, to state that the government is going to make a point of prosecuting white collar crimes. The difficulty came from what he added.
Axiomatically, as reflected in the American Bar Association Standards cited in our main opinion, a prosecutor must "not give . . . any extrajudicial statement or interview, relating to the trial or the parties or issues in the trial." In our opinion we have merely applied this proscription to views which, though not explicit references, are fraught with the same possibility of influencing the jury.2 This must include possibly jury-influencing statements about the judge. We cannot believe the government's memorandum that in a large district there may never be a time when such remarks may be made, but if that is so a prosecutor's obligation to provide a fair trial is more important than a right to publicize his opinions.
The petition for rehearing is denied.
The petition for rehearing is denied.
1. See also Fryson v. State, 1973, 17 Md.App. 320, 301 A.2d 211 (reversible error for prosecutor to inform jury that defendant might receive probation or be paroled).
2. Indeed improper explicit references may in some circumstances result in personal liability of the prosecutor. Cf. Martin v. Merola, 2 Cir. 1976, 532 F.2d 191, 195 (Lumbard, C.J., concurring).