On Report and Recommendation of the Board on Professional Responsibility. (BDN 405-03).
The opinion of the court was delivered by: Farrell, Associate Judge
Before FARRELL, RUIZ, and KRAMER, Associate Judges.
The Court of Appeals of Maryland reprimanded respondent Douglas F. Gansler for statements that, in his capacity as State's Attorney for Montgomery County, Gansler had made on three occasions about matters which the Court of Appeals found had a substantial likelihood of depriving criminal defendants of fair trials. See Attorney Grievance Comm. of Md. v. Gansler, 835 A.2d 548, 574 (Md. 2003). Specifically, the Court held that on each occasion Gansler violated Rule 3.6 (a) of the Maryland Rules of Professional Conduct, which prohibits statements by a lawyer that he knows or should know "will have a substantial likelihood of materially prejudicing an adjudicative proceeding."
Before this court is a recommendation of the Board on Professional Responsibility to impose equivalent reciprocal discipline in the form of a public censure. See, e.g., In re Bridges, 805 A.2d 233, 234 (D.C. 2002) (public censure in the District is functionally equivalent to a public reprimand in another jurisdiction). As applied to Gansler acting in his role of prosecutor, the Board recognized that the corresponding prohibition in this jurisdiction is contained in Rule 3.8 (f) of the District's Rules of Professional Conduct, which provides that, "[e]xcept for statements which are necessary to inform the public of the nature and extent of the prosecutor's action and which serve a legitimate law enforcement purpose, [the prosecutor in a criminal case shall not] make extra-judicial comments which serve to heighten condemnation of the accused." Applying the standards for imposition of reciprocal discipline set forth in D.C. Bar Rule XI, § 11 (c), the Board concluded principally that Gansler had not met his burden to show, by clear and convincing evidence, that his misconduct in Maryland did not violate Rule 3.8 (f)'s prohibition. See Rule XI, § 11 (c)(5).
We accept the Board's conclusion and recommendation. Whether or not, in an original discipline proceeding applying D.C. rules to statements of a prosecutor of the sort made by Gansler, this court would conclude that all or some of those statements violated Rule 3.8 (f), Gansler has not persuaded us in this derivative discipline proceeding that his extra-judicial comments would not be misconduct in this jurisdiction.
The facts underlying the Maryland violations, set forth comprehensively in the Court of Appeals' opinion, see 835 A.2d at 554-56, relate to three criminal cases that involved, respectively, defendants named Cook, Lucas, and Perry. First, at a press conference in the Cook case at which police announced that Cook would be charged with the murder of a female jogger, Gansler himself made several statements to the media. He declared that Cook had confessed to the murder and furnished specific information about the surrounding circumstances, including that Cook had "provided 'incredible details that only the murderer would have known.'" Id. at 570. Further, as the Maryland court found, he "magnified the prejudicial effect of his statements by bolstering the believability of the confession," stating that "before Cook traveled to the crime scene and 'went over in detail by detail every step of' the murder, the police had provided him with a restful night's sleep." Id.
Second, in the Lucas case, the police had similarly held a press conference to announce the arrest of Lucas for allegedly murdering a priest. Gansler spoke at the press conference and declared that the police had been "'able to determine definitively that indeed it was Mr. Lucas who had committed the crime.'" Id. at 555. He "then expressed his opinion that 'we have found the person who committed the crime at this point' and that the case against Lucas 'will be a strong case.'" Id. The Maryland court concluded that "Gansler's proclamation that 'they' had apprehended the persons who committed the crimes in the Cook and Lucas cases directly contravened the provisions of MRPC 3.6 (b)(4),"*fn1 as "[t]he comments blatantly expressed Gansler's opinion of the guilt of the defendants," an opinion he "supported . . . by pointing to specific circumstances, such as confessions and physical evidence, to make his views more reliable." Id. at 572.
Finally, in the Perry case, after the Court of Appeals had reversed Perry's convictions for the murder of a boy, the boy's mother, and a nurse, Gansler made extra-judicial statements that were reported in a newspaper in which he announced, in connection with a possible retrial, "that 'he has decided to offer [Perry] a plea bargain' and that, 'when the offer is formally presented, Perry would have six weeks to make a decision.'" Id. at 556. The Maryland court concluded that these statements - both announcing the plea offer and "discuss[ing] the impending deadline for Perry to accept that offer, all during a very public and controversial prosecution of a multiple murder suspect" - served to "place greater pressure on the defendant to accept the plea offer" and, "[m]ore importantly, . . . likely influenced potential jurors in Perry's case by communicating that the lead prosecutor believed the defendant was guilty." Id. at 571.
This court's rules governing the members of our bar provide that reciprocal discipline "shall be imposed unless the attorney demonstrates, by clear and convincing evidence," that the case falls within one or more of five enumerated exceptions. D.C. Bar R. XI, § 11 (c). "The rule thus creates a rebuttable presumption that the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction." In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992) (footnote and citation omitted). In his brief, Gansler nominally contends that he meets all five of Rule XI, § 11 (c)'s exceptions. He contends, for example, that there was a serious "infirmity of proof," § 11 (c)(2), because "[a]t no time during the lengthy pendency of this matter in Maryland did [Maryland Bar Counsel] provide a scintilla of proof that [Gansler] knew or should have known that any comment that [he] made would have a substantial likelihood of materially prejudicing an adjudicative proceeding" (Br. for Resp. at 12). This assertion, made with no further elaboration, falls well short of meeting Gansler's "heavy" burden, Bridges, 805 A.2d at 235, to show that the Maryland court lacked evidence of his actual or constructive knowledge of the likelihood of prejudice. The infirmity of proof exception "is not an invitation to the attorney to relitigate in the District of Columbia the adverse findings of another court in a procedurally fair hearing," id., and, as the Board points out, the Maryland court "devoted substantial attention to [the] issue" of Gansler's knowledge of likelihood that his statements would result in prejudice.
Gansler further argues that the Maryland proceedings were "so lacking in notice or opportunity to be heard as to constitute a deprivation of due process." Rule XI, § 11 (c)(1). In his brief, this is presented merely as an argument that Gansler could not have foreseen - hence had not received notice - that Maryland would hold any of his challenged statements to fall outside the "safe harbor" that Maryland Rule 3.6 provides for, among other statements, an attorney's disclosure of information already "contained in a public record." See Gansler, 835 A.2d at 563, 566.*fn2 But the Maryland court explained that, precisely "[b]ecause there [was] no settled definition of 'information contained in a public record'" at the time of Gansler's actions, it would "construe the phrase in its broadest form as applied to Gansler in this case," id. at 567, and it went on to do so. Gansler is not at liberty, under the guise of a claim of unfair denial of notice, to relitigate the Maryland court's findings concerning which of his statements did, and which did not, come within the court's broad definition of the "safe harbor."
At oral argument here, Gansler's argument that he was denied notice shifted ground to the contention that, whatever notice Maryland's Rule 3.6 (a) furnished him about the propriety of his actions, he could not reasonably have foreseen that he would be disciplined, even reciprocally, for the same conduct under this jurisdiction's Rule 3.8 (f). This is not so much an argument of notice-denied as it is one that Gansler's "misconduct elsewhere does not constitute misconduct in the District of Columbia." Rule XI, § 11 (c)(5). That is to say, the argument would have merit only if Rule 3.8 (f) imposed substantially different, or lesser, ...