One of the longest standing complaints among criminal defense attorneys is that the government often goes ballistic when a defense attorney makes public statements in support of his or her client. Judges often hammer private counsel under increasingly harsh gag orders. Yet, the government routinely influences cases by leaking information that could only come from the prosecutors or investigators on the case. This problem is even more acute in high-profile cases like that of Richard Jewell and my former client Dr. Thomas Butler, where leaks were used to target innocent men to try to force them to plead. Now, like clockwork, the Justice Department has again started the leak war in the case of alleged mobster James “Whitey” Bulger. However, the judge has simply asked the Justice Department for a “plan” on how to stop the leaks. If this were a private firm, there would be a contempt hearing.
Bulger’s lawyers have said the leaks are endangering a fair trial. U.S. District Judge Mark Wolf appears to agree but simply asked the prosecutors to “submit a plan for stopping any leaks.” No investigation into who is intentionally leaking the information or any required declaration from the prosecution. Just a plan.
I have long been a critic of the increasing limitations put on counsel in defending their clients in public by courts. In my view, judges have cut too deeply into the ability of a lawyer to respond to attacks against his client in public — part of zealous advocacy recognized by the Supreme Court. However, at a minimum, the playing field should be level with government counsel receiving the same treatment in such public comments.
The Justice Department routinely leaked evidence and allegations to pressure targets or undermine trials. In some cases the information is false as in the case of Jewell, Butler and others. However, when these individuals sue, the Justice Department claims an array of privileges to prevent disclosure of the responsible lawyers and agents. The Justice Department itself practically never investigates and disciplines personnel for such misconduct.