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IN THE CIRCUIT COURT OF_________ COUNTY, ____________ NAME OF PLAINTIFF )       ) ) V. ) NO. ) ) NAME OF DEFENDANT )       ) ) MOTION TO REMEDY PROSECUTORIAL ABUSE ____________, by counsel, hereby moves this Court, pursu ant to Article ________, Sections ________, of the __________ Consti tution and the Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States, for an order remedying prose - cutorial abuse in this case, insofar as members of the prosecu tion team have tainted _____________'s right to a fair trial with improper comments to the media. In support of his motion, ___________________ states as follows: 1. On __________ __, _____, an article entitled "Prosecutors hope case will aid in later trial" appeared in the Daily News . A copy of the article is attached hereto as Exhibit A . In the article, the District Attorney is quoted as stating: "If the defendant is convicted of rape, we can use it as an additional aggravating circumstance in the capital murder trial." He also elaborated on the use of a later crime as an aggravating circum stance in an earlier capital murder. The lead sentence in the article outlines the strategy of the District Attorney: "County prosecutors this week will seek to convict defendant of rape -- hoping to use the case as evidence at his later trial for capital murder." The District Attorney is also quoted as mentioning that __________________ has allegedly confessed, and that ________________ purport edly has an extensive criminal record. 3. Disciplinary Rule 7-107 of the Code of Professional Responsibility of the __________ State Bar provides: [A] A lawyer participating in or associated with the investigation of a criminal matter shall not make or partici pate in making an extraju dicial statement that a reasonable person would expect to be dissemi nated by means of public communication and that does more than state without elaboration: [1] Information contained in a public record. [2] That the investigation is in prog ress. [3] The general scope of the investiga tion including a descrip tion of the of fense and, if permitted by law, the iden ti ty of the victim. [4] A request for assistance in appre hending a suspect or assistance in other matters and the information neces sary thereto. [5] A warning to the public of any dan gers. [B] A lawyer or law firm associated with the prosecu tion or defense of a criminal matter shall not, from the time of the filing of a com plaint, information, or indictment, the issuance of an arrest warrant, or arrest until the commencement of the trial or disposition without trial, make or participate in making an extra- judicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to: [1] The character, reputation, or prior criminal record [includ ing arrests, in dictments, or other charges of crime] of the accused. * * * [2] Any opinion as to the guilt or inno cence of the accused, the evidence, or the merits of the case. 3. The defendant is entitled to due process, a public trial, a trial by an impartial jury of the State and district where the crime occurred and other rights guaranteed him by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article 3, Sections 14, 26 and 28 of the __________ Constitu tion. The comments made by the District Attorney preclude the access of the defendant to these rights, as well as violating the provisions of DR 7-107. 4. The statements made by the District Attorney place before potential jurors inadmissi ble evidence. The statements appeared several times in articles in the Daily News , which has a distribu tion of in this County. As a public official, the District Attorney has an obligation to uphold the constitution al rights of the defendant. EC 7-13 of the Code of Professional Responsibility of the __________ State Bar states: The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to con vict. This special duty exists because: (1) the prosecutor represents the sover eign and therefor should use restraint in the discre tionary exercise of governmental powers. . . .; and (3) in our system of criminal justice the accused is to be given the benefit of all reasonable doubt. . . . Indeed, these same duties of the prose cuting attor ney were well- stated in the classic opinion of Jus tice Sutherland fifty-five years ago. The interest of the prosecu tor, he wrote: is not that he shall win a case, but that justice be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with ear nest ness and vigor -- in deed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. Berger v. United States , 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935); accord ABA Standards on the Prosecution Function Standard 3-1.1(a) ; State v. Locklear , 241 S.E. 2d 65, 69 (N.C. 1978) ("[prose cuting attorneys owe honesty and fervor to the State and fairness to the defendant" (emphasis sup plied)). Equally, EC 7-33 provides: A goal of our legal system is that each party shall have his case, criminal or civil, adju dicat ed by an impartial tribunal. The attain - ment of this goal may be defeated by dissemi nation of news or comments, which tend to in fluence judge or jury. Such news or comments may prevent prospective jurors from being impartial at the outset of the trial and may also interfere with the obligation of jurors to base their verdict solely upon the evidence admitted in the trial. The release by a lawyer of out-of-court statements regarding an antic ipated or pending trial may improperly affect the impartiality of the tribunal. For these reasons, standards for permissible and prohib ited conduct of a lawyer with respect to trial publicity have been established. 5. The ABA Project on Standards for Criminal Justice Standards Relating to the Prosecution Function, Standard 1.3 and the accompanying commentary, further underscore the importance of restraint on the part of the District Attorney's office: 1.3 Public Statements (a) The prosecutor should not exploit his office by means of personal publicity connect ed with a case before trial, dur ing trial and thereaf ter. (b) The prosecutor should comply with the ABA Standards on Fair Trial and Free Press. Commentary: The prosecutor's responsibility to the adminis tration of justice re quires that he do nothing, which will impair the right of the accused to a fair and impartial treatment in every case. As the repre sentative of the public interest his only interest is to see that justice is done. He should not exploit the power and prestige of his office for his own personal aggrandize ment. Circumspection in this regard is most acutely required in cases, which excite public interest. The very nature of his function as an administrator of justice requires that the prose cutor unself ishly avoid personal publicity in connection with the cases he prosecutes. 6. The courts have treated this problem with the seriousness it deserves. In re Grand Jury Investigation , 610 F.2d 202 (Fifth Cir. 1980), reviewed the conduct of U.S. Attorneys who were quoted in newspaper articles as the source for information concerning grand jury matters. The Court concluded that a suffi - cient prima facie case had been made for violation of the rule governing disclosure of grand jury matters. The court remanded the case for an evidentiary hearing on motion to hold the government attorneys in civil contempt. 7. In re Hansen , 584 P.2d 805 (Utah 1978), was a decision which concerned a prosecutor who made statements to a reporter about the strength of the prosecutor's case and the likelihood of its outcome, in violation of DR 7-107(B)(6). The court held that prosecutor subject to censure and reprimand. The release of information by officials such as the prosecutor and police such as other crimes is considered inherently prejudicial. If it occurs during a trial, it is automatic grounds for a new trial. Marshall v. United States , 360 U.S. 310 (1958). Again, in Hughes v. State , 427 A.2d 559 (Del. Supr. 1981), the Court reversed due to the comment of the prosecutor about the defendant's poly graph examination, a comment which clearly violated DR 7-107(D) . The court considered the comment particularly objectionable in light of the fact that the information was inadmissible at trial. The comments of the prosecutor in this case were just as objection able, more so because of the seriousness of the charge here and the irrevocable nature of the penalty of death. See In re Grand Jury Investigation , 610 F.2d 202 (Fifth Cir. 1980) (defendant's attorney entitled to evidentiary hearing on motion to cite prosecutor for contempt); In re Hansen , 584 P.2d 805 (Utah 1978) (prosecutor subjected to censure and reprimand); In re J.S. , 436 A.2d 772 (Vt. 1981) (disqualification of prosecutor). 8. The District Attorney impermissibly announced his intent to use a rape conviction as an aggravating circumstance at defendant's capital murder trial. At the very least, the prosecu - tion should be precluded from using any rape conviction as an aggravating circumstance at the capital murder trial, just as the prosecution would be precluded from using illegally obtained evidence or evidence that the prosecution improperly fails to disclose to the defense. 9. ______________ should also be granted a continuance, in the hope that time will lessen the prejudicial impact of the District Attorney's comments. This Court should also allow extensive, individual sequestered voir dire and additional peremp tory strikes to ensure that no taint reaches jury deliberations. Voir dire of the whole panel on this issue would, of course, extend the taint. WHEREFORE, _____________________ respectfully requests the following relief: a. That the District Attorney be disqualified from prosecuting this cause; b. That the prosecution be precluded from using any rape conviction as an aggravating circumstance at the capital murder trial; c. That the defense be granted a continuance; d. That defendant be granted individual, sequestered voir dire; and, e. That defendant be granted additional peremptory strikes.