Unbelievable: Maryland may prosecute O’Keefe for shooting ACORN video

I am a lawyer and any lawyer who threatens prosecution or makes public pronouncements such as these before the investigation is complete should be disciplined . And then soundly spanked.
borntoraisehogs on September 12, 2009 at 9:50 AM

Heh. I’m not a Maryland attorney, but I can certainly read Maryland’s Rules of professional conduct for attorneys.

And, in addition to any limitations regarding the premature issuance of threats of prosecution by lawyers, there are other rules that might be applicable in this situation, ones which are directed specifically at those engaging in investigations and litigation, including prosecutors — to wit: engaging in inappropriate pretrial publicity, including the pre-charge period:

Rule 3.6 Trial Publicity

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
. . . .

There are exceptions to the rule, most notably (as might relate in this situation) such exceptions as: publicly stating “that an investigation of a matter is in progress” or publicizing “a request for assistance in obtaining evidence and information necessary thereto.”

But this statement is obviously calculated to do much more than that! This statement is quite clearly an invitation to a fishing expedition, in addition to being a not-so-veiled threat. It also seems aimed at laying a foundation for attempting to secure the quick removal the audio from YouTube. Those have quite obvious political, and not prosecutorial motivations behind them. The Democrats are embarrassed by these cohorts of Barack, and want to suppress the exposure of their bad behavior. And they don’t want those clips in future political ads.

In addition to that rule, another rule that is specifically aimed at prosecutors, provides as follows:

Rule 3.8 Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
. . .

(e) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent an employee or other person under the control of the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
(my emphasis

Now, this may seem inapt to the majority of readers here, but there is quite plainly a segment of the American (and Maryland) population that is quite ready, very willing, and highly susceptible to being manipulated into a frenzy of public condemnation of critics of ACORN.

When the Baltimore State’s attorney seek to criminalize the public exposure of actions and statements made by ACORN councelors who are, in turn, recommending to others that they engage in a series of criminal acts, we are all in trouble.

And the little crazies would willingly be so manipulated, even if it takes openly turning the legal system upside-down in an effort to suppress evidence of such blatant inducement of criminal behavior on the part of ACORN.

There is not even a tiny attempt at balance on the part of the prosecutor in this statement. The sole focus of the statement is aimed at a possible prosecution for allegedly obtaining the audio “improperly” in this situation.

Makes you wonder if the “short title” for that Maryland statute shouldn’t have been “The Mobbed-Up Protection Act.”

The most egregious aspect of their statement is that it completely ignores the exposure of willing recommendations on the part of ACORN “counselors” to engage in serial acts of criminality. Surely there must be some “consumer protection law” in Maryland that heavily inveighs against, and codifies harsh sanctions for those recommending the taking of criminal action, particularly on the part of those publicly holding themselves out as “tax advisors” or “counselors” having a particular level of expertise.

Likewise, I am sure there are at least a few federal statutory prohibitions related to the offering of such criminal inducements.

Funny, isn’t it, how the Baltimore State’s Attorney failed to publicly take note of any of those prohibitions?

Move over, Mike Nifong! You’re nothing but a “piker” by comparison!

Trochilus on September 12, 2009 at 6:26 PM

The State of MD, or maybe, Baltimore City will squeeze the two troublemakers who made the film for all they are worth.
Then, they will stop all legal action after they have made their point. They will drop all legal action, but only after they have forced them to spend a ton in legal fees.

Force a settlement or bleed them dry.

shorebird on September 13, 2009 at 1:38 AM

My sense is that you may be quite correct. The prosecution of Linda Tripp pursuant to this same law was ultimately terminated in late May of 2000, but not before intense pressure was put on her by employing a prosecutorial full court press against her. The Judge in the case put significant roadblocks (limitations on testimony by Lewinsky) in the way of the State prosecutor, essentially forcing him to drop the case.

In this current case, the fact that the Baltimore state’s attorney put out as outrageous a press statement as they did, means they are focusing exclusively on the taping angle, even noting, by the way, that the tapes are incomplete.

“Upon review by this office, the video appears to be incomplete.”

That likely means that they will now try to subpoena the remainder of the tapes, or at least all of the taping done in the Baltimore office, in order to make a factual determination as to whether the pair revealed the fact they were taping to the two ACORN workers and/or sought their permission. When they make that determination, they will then be in a position to seek charges against the two individuals because of the lack of “consent.”

I sense that whoever is driving this outrage within the Baltimore State’s attorney’s office, is either doing so at the request of someone at some higher level in the law enforcement chain of command, or has decided to undertake these rogue actions on their own, seeing themselves essentially as a loyal soldier in the political war.

We should know soon enough by what Maryland’s Attorney General either does, or does not do in reaction to this. If the State’s attorney in Baltimore is acting as a “rogue” prosecutor, then the Maryland AG could step in and take over the investigation.

If not, then this is likely being driven at a much higher level. Reporters should be asking a lot of questions of the Maryland AG, and also of the United States Attorney for that district.

Trochilus on September 13, 2009 at 9:05 AM

A prior commenter here linked to the analysis by the Reporters Committee for the Freedom of the Press, noting that the approach taken by the Maryland courts seems to be that the law is only prosecuted where there is a “reasonable expectation of privacy” for the person(s) unknowingly taped, citing two cases: Malpas v. Maryland, 695 A.2d 588 (Md. Ct. Spec. App. 1997); and Benford v. American Broadcasting Co., 649 F. Supp. 9 (D. Md. 1986).

It seems manifestly obvious someone (or organization) that publicly holds itself out as a purveyor of tax advice to anyone who walks in off the street into their offices, has absolutely no expectation of personal privacy whatsoever!

If a commercial salesman who comes into your home to make a pitch for you to purchase a service has no expectation of privacy, how is it possible that a commercial establishment openly hawking the availability of tax advice to the public could have any such expectation?

It is just ridiculous!

The ultimate irony in this is apparent when you realize how an organization like ACORN got into the business of giving “tax advice” in the first place!

At least as reported by The Provocateur back in early February, ACORN got into the tax advisor business by relentlessly pressuring H & R Block including by systematically invading the privacy of it’s CEO, and only stopped when the tax advisor caved in to the pressure and gave them a piece of the action!

. . .
All of this is done in order to beat the target into submission. For weeks and months, ACORN goes on a relentless campaign of harrassment in which a powerful CEO can’t seem to shake this group. Wherever they go, ACORN is there, and often they are there before the target. One such campaign involved H&R Block. ACORN showed up at the home of then CEO, Mark Ernst. The relentlessly harrassed him all over his neighborhood. They showed up everywhere he frequented until he became a pariah in his own neighborhood. They finally got concessions. They teamed up to provide free tax service in low income areas. ACORN got a piece of H&R Block’s Emerald Cards. Of course, that’s what the media knows about. What’s almost certain is that ACORN also received, and likely continues to receive, cash payments directly from H&R Block. Of course, we’ll never know how much, if any, cash payments were transferred. That’s because all cash that ACORN receives starts in their so called accounting firm, Citizen’s Consulting Inc. Because both H&R Block and CCI are both private companies, seeing their books is next to impossible. As such any payments are hidden in the books of two companies that aren’t sharing them.
. . . .
(links in the original)

But now ACORN wants to claim that their privacy was violated because they got caught on camera giving out-and-out criminal tax advice to a “client!”

What’s the old joke regarding the definition of chutzpah? Murdering your parents and then begging the court for mercy because you’re an orphan?

Hell, they don’t even need to do that! They have the Baltimore State’s attorney willingly pursuing a criminal case for them, along with a brandy new set of blinders re: ACORN’s obvious culpability!

Makes you wonder too if H & R Block spent any of this weekend huddled with it’s attorneys and P.R. folks, trying to figure out if they might be expecting any blow-back from all of this, having let ACORN into the business in the first place. One can imagine a lot of folks concluding that ACORN is simply poison.

Trochilus on September 13, 2009 at 11:38 AM