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The Supreme Court’s ban on displays of seized contraband before the media, which at least one prosecutor says hinders the fight against opioid abuse, is under challenge. But several criminal lawyers say the restriction should remain in place, calling the press conference staple “self-aggrandizing.”
One county prosecutor has asked the Supreme Court Advisory Committee on Professional Ethics to ease the restriction on public displays of seized drugs, guns and cash in light of the epidemic of opioid-related deaths. The petition argued that heightened awareness of the opioid epidemic meets the definition in court rules of a “legitimate law enforcement purpose.” But the ACPE rejected the proposal in its Opinion 731, issued Feb. 17, finding that such displays before trial are likely to contaminate the criminal proceeding. And several ex-prosecutors now in private practice agreed.
“The primary reason prosecutors put on displays of lots of guns and lots of drugs is self-aggrandizement,” said Joseph Rem, a Hackensack criminal defense lawyer and former assistant prosecutor in Passaic County. “They want to show how effective they are in their position and therefore be more likely to be reappointed. But they do so at the risk of prejudicing the jury pool through this kind of sensationalism.”
The inquirer, who was not identified publicly, asserted to the ACPE that when authorities make large-scale seizures of drugs, displaying the contraband would “underscore to criminal trafficking organizations that law enforcement efforts in the state are robust, and may deter organizations from transporting the illegal substances locally.” The inquirer also suggested that public displays of contraband would “encourage citizens to engage in public discourse about these issues and cooperate with law enforcement in our efforts to combat the crisis.”
Parties who make inquiries to the ACPE remain anonymous under court rules unless the decision is appealed to the Supreme Court. Warren County Prosecutor Richard Burke, head of the county prosecutor’s association, said he did not know the identity of the inquirer but that person did not speak for his association.
In 1989 the Supreme Court construed RPC 3.6 to forbid public production of any physical evidence such as seized drugs or confiscated weapons. But the inquirer suggested that holding was superseded by a 2004 amendment to RPC 3.8(f), which permits statements that tend to heighten public condemnation of the accused when such statements would serve a legitimate law enforcement purpose. The inquirer suggests that because of the current epidemic of opioid abuse, public displays of confiscated drugs and weapons should be allowed under 3.8(f) because they are necessary and will serve law enforcement purposes.
The ACPE called that position “overbroad,” and commented that “there would be very little left of the prohibition against prejudicial extrajudicial statements if mere heightened public awareness of (thus leading presumably to enhanced general apprehension about) criminal activity was sufficient to justify extrajudicial statements by prosecutors. The phrase ‘legitimate law enforcement purpose’ only covers communications that are necessary to protect against or alert the community about a specific and current danger to public safety,” the committee said.
Burke, the Warren County prosecutor, said of the proposal to display evidence that he “would err on the side of not doing that.” But he added that raising public awareness of the opioid problem in his county has been difficult. Warren County has seen “lots of overdose deaths” but “sometimes people look at that and say that happens somewhere else.”
The court’s attention to the rights of the accused are even more important today, when information is so readily available online, and pretrial publicity could harm the reputation of a defendant who is found not guilty, said Robert Bianchi, who served as Morris County prosecutor from 2007-13. In addition, jurors are instructed not to conduct their own research but there’s no way of guaranteeing they don’t, he said.
“Good luck, if you’re found innocent, of eradicating that stigma that will follow you for the rest of your life,” said Bianchi, who heads a West Caldwell firm.
Bianchi thinks displays of contraband might have some educational value but that merit is outweighed by its prejudicial nature.
“If it’s used for educating the public in the right way, I don’t see a problem with it. If, along the way, that makes my agency look great, that’s OK. But if you’re doing it, like I’ve seen many times, for the purpose of patting yourself on the back, that’s not OK,” he said.
John Molinelli, who was Bergen County prosecutor from 2002-16, says “one of my favorite pictures” shows mass quantities of cocaine and cash that his office seized in 2004, but he adds that “the public and press have never seen it” because of its prejudicial value.
He has no objection to the court’s decision erring on the side of a defendant’s rights to a trial without prejudice.
“When you balance it against the potential inflammatory and highly prejudicial aspect of it, whatever educational merit [the display of evidence] may have is dwarfed,” he said.
Molinelli said prosecutors can get around the restriction on displaying evidence by showing creativity with other types of visual aids, citing a case where his office used a soda bottle to create a model of a firebomb that a man allegedly threw into a synagogue.
“Do you have to show 100,000 oxycontin pills? It would be good, but there are other ways to do it,” he said.