Saturday, December 06, 2008

Guest Shot: Gorcyca's exoneration makes a bad precedent

The following opinion was originally published in the Detroit Free Press on December 4, 2008.

Gorcyca's exoneration makes a bad precedent

BY LARRY DUBIN • December 4, 2008

The ethics rules that apply to prosecutors as promulgated by the Michigan Supreme Court state: "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see ... that guilt is decided upon the basis of sufficient evidence."

So why did a hearing panel of the Michigan Attorney Discipline Board conclude that Oakland County Prosecutor David Gorcyca's public and highly prejudicial comments about a pending defendant did not constitute professional misconduct?

After an Oak Park elementary teacher was convicted of sexual conduct crimes by a jury in a highly publicized case, an Oakland County judge ordered a new jury trial. During this period of time, Gorcyca made comments on the radio and in the press that the defendant was "a freak" and "a pedophile" who had refused to voluntarily submit to a polygraph test offered by the prosecution (even though polygraph testimony is inadmissible at trial).

Gorcyca made further comments about information intended to establish the defendant's guilt concerning videos found at the defendant's residence that the trial judge had ruled inadmissible during the first trial.

The defendant was entitled to be presumed innocent, and Gorcyca had an ethical and legal duty not to make public statements that would have "a substantial likelihood of materially prejudicing an adjudicative proceeding." Under Michigan Rule of Professional Conduct 3.6, Gorcyca's freedom of speech is limited, especially where a jury trial is afforded an accused, from making reckless public statements that are designed to pollute the potential impartiality of prospective jurors who might be called for future service in that case.

The Michigan Supreme Court even gives examples about the types of statements that a lawyer should not make to avoid being guilty of professional misconduct. These prohibited statements include discussing the "character, credibility or reputation" of a suspect; "the refusal or failure of a person to submit to ... a test, ... or information that the lawyer knows ... is likely to be inadmissible as evidence in a trial."

The hearing panel, in dismissing this formal complaint against Gorcyca, used bad judgment in relying on the facts of a prior Michigan case involving public statements made by a lawyer in a civil matter. Gorcyca was acting as a public prosecutor in a pending criminal case and not as a lawyer representing a civil litigant whose client lacks the constitutional protections of an accused in a highly publicized criminal trial.

Perhaps the Michigan Attorney Grievance Commission will have the wisdom to appeal this dismissal to the Michigan Attorney Discipline Board. In the absence of a reversal of this dismissal, the ethics rules limiting public statements by prosecutors that can interfere with an accused person's right to a fair trial will be meaningless.

LARRY DUBIN is a professor of law at the University of Detroit Mercy School of Law and former chairperson of the Michigan Attorney Grievance Commission. Write to him in care of the Free Press Editorial Page, 615 W. Lafayette, Detroit, MI 48226 or at

Truthinjustice Files Editorial Note: David Gorcycka is no stranger to unethical and even illegal conduct to get what he wants, or, failing that, to get even with anyone he perceives as standing in his way. Consider what Gorcyca did when he didn't like Judge Rae Lee Chabot's rulings in another case.


Anonymous said...

And then after digging up that dirt on Chabot, he endorsed David Law for prosecutor, who had a very recent drunk driving conviction. Gorcyca is a total hypocrite.

Anonymous said...

The Oakland County Prosecutors office and the police that investigate for them are shameful. We are living in a Police State. Talk to friends. Each will have a story of ill treatment by the justice system here. There has been much bad press lately. Citizens need to take a stand for justice. New breed of police need to be retrained. See Innocence Project.

Anonymous said...

It was announced November 2 that the Attorney Grievance Commission has reinstated the violation charges Gorcyca was previously facing. Media attention to this story appears to be muzzled. The real story is very troubling as previous post have indicated.
Oakland’s former prosecutor had more than just one or two identical complaints of ethics violations filed with the Grievance Commission while he held office. They were ignored. He had friends in the right places. Only after the violations were spotted on front page of the newspaper AGAIN, did the Commission decide to have a panel review the most recent complaint. This is in violation of their own policy, as all the previous complaints should have been factored in at the review.
The American Bar Association ethics department previously posted at their website Gorcyca certainly violated the national ethical standard.
Still the Michigan panel had trouble applying the national standard to Gorcyca. He deserves that any lawyer in this country would expect to get, then triple the discipline (triple damages) for the previous violations he circumvented and his years of sneering at anyone who dare question him.
If Gorcyca walks a second time the whole of the Michigan law profession will be tainted.