20.07.02. Limits on prosecutors [Rule 3.8(f)]

            Comments made by a prosecutor regarding a defendant or a prosecution can be particularly troubling.  The public tends to trust what the prosecutor says, and therefore improper statements by a prosecuter can improperly sway the public or taint a prosecution.  For that reason, Rule 3.8(f) says that a prosecutor shall refrain from making extrajudicial comments that have a “substantial likelihood of heightening condemnation of the accused…” unless the statement is necessary to inform the public of the prosecutor’s actions or that serve a legitimate law enforcement purpose.  The prosecutor also has an obligation to exercise “reasonable care” to make sure that those working alongside the prosecutor – such as investigators or police officers – do not make statemetns that would prejudice a proceeding or heighten condemnation of the accused.

Salvador Perricone worked as an Assistant United States Attorney in the Eastern District of Louisiana.  Perricone would comment on stories that ran on The Times-Picayune website about cases being handled by the U.S. Attorney’s office.  He would post under various alias including “campstblue”, “legacyusa” and “dramatis personae.”  One case where Perricone made comments involved a group of New Orleans police officers who shot at unarmed civilians crossing the Danziger Bridge.  Two persons were killed and four were wounded.  Six police officers were indicted by the US Attorney’s office.  In response to an article regarding a rumor that one of the defendant police offiers was going to enter a plea, “legacyusa” commented:

Despite defense attorneys protestations to the contrary, It would be prudent for those involve to consider the track record of the US Attorney’s Office.  Letten’s people are not be be trifled with.

Then during the rial, “legacyusa” commented:

NONE of these guys should have ever been given a badge.  We should research how they got on the police department, who trained them, who supervised them and why they ever been promoted.  You put crap in – you get crap out!!!

Also during the trial, “dramatis personae” said this about the testimony given by a defendant:

Where is Madison’s gun?  Come on officer, tell us.  You shot because you wanted to be part of something, you thought, was bigger than you.  You let your ego control your emotions.  You wanted to be viewed as a big man among the other officers.  That’s the creed of the NOPD and I hope the jury ignores your lame explanation and renders justice for Mr. Madison.  To do less is to sanction any copy who decides it is in his best interest to put a load of buckshot in the back of a disabled American in broad daylight.

Did the prosecutor act unethically? [In re Perricone, 263 So. 3d 309 (La. 2018)[1]]

Yes.  The comments violated both Rule 3.8(f) because the comments had a “substantial likelihood of heightening public condemnation of the accused” and Rule 3.6(a) because Perricone knew or reasonably should have known that the comments would have a “substantial likelihood of materially prejudicing an adjudicative proceeding….”  The court disbarred Perricone. 

Perricone’s sanction was not the only impact of his statements. At the trial the jury returned guilty verdicts against all defendants and the judge sentenced each defendant to a term ranging from 6 to 65 years.  After the judge learned of Perricone’s commenting (and other instances of prosecutorial misconduct which the judge called “grotesque”) the judge found that the defendant’s due process rights were violated and reversed the sentences.  Subsequently the judge accepted a plea deal for the Danziger Bridge defendants to plead guilty to significantly lesser offenses in exchange for prison sentences ranging from 3 to 12 years.

[1] Perricone also made comments about other cases as well.