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.

Thursday, December 04, 2008

Guest Shot: Time to end the death penalty in Maryland

The following opinion was originally published in the Baltimore Examiner on December 1, 2008.

Time to end the death penalty in Maryland
By Michael May

I spent 10 years as a law enforcement officer, including seven in the Baltimore Police Department. So I am no stranger to violence.
Indeed, my years surrounded by senseless crime filled me with outrage and the desire for revenge — including the death penalty.

But I have learned a lot since then, including the scary fact that a single mistake could be mean the execution of an innocent person.

As someone who has dedicated my life to enforcing the law, I can't live with that. I testified before the Maryland Commission on Capital Punishment this fall, sharing my journey from death penalty supporter to a supporter of repeal. And last month the Commission validated my experience by voting for the same - the repeal of Maryland's death penalty. It was a smart decision and I hope the legislature will move quickly to enact it.

As I said, my opposition to the death penalty evolved. During my years in Vietnam and later as a military policeman in Louisiana, I was exposed to violence as a matter of routine. My anger at those who would harm innocent people boiled over. Then, working in some of the poorest and crime-ridden neighborhoods of Baltimore only strengthened my feeling that some people were simply beyond redemption. It was a fairly simple conclusion for me to think that the most evil people in our society deserved the death penalty. In my view, those who opposed it were muddleheaded, knee-jerk liberals who were just plain wrong.

I felt that way until about ten years ago. The last decade has seen a broad shift in public opinion on the death penalty, and I was not immune to the new information that was coming out about innocent people being sentenced to death. I was also struck by a talk on the death penalty by then Archbishop of Baltimore, William Cardinal Keeler, when he spoke at a mass at my parish in Towson. I realized then that I had to learn more.

I read about Kirk Noble Bloodsworth — a man sentenced to die in Maryland for a crime he did not commit. I could not begin to imagine the absolute horror of languishing on death row an innocent man. I could not imagine the anticipation of being lifted onto a gurney, strapped down and injected with a combination of lethal drugs by an incompetent nurse's aide — knowing all the time that I had done nothing wrong.

As I read about Mr. Bloodsworth and other innocent people that came close to execution, my doubts about the death penalty grew. Human beings are simply not right 100 percent of the time. No amount of reforms, technological advances, or legal procedures can undo that fact. If the death penalty remains, some state, perhaps even our state, will kill an innocent person. Can we live with that?

Like many people, I have struggled to make sense of this issue. The death penalty seems like a proportionate punishment for a grievous crime. At least it brings justice to victims in the face of evil. But does it? My religion teaches that the path to true peace is through forgiveness. John Paul II traveled to an Italian prison to forgive the man who shot him. The death penalty keeps us from following that noble example. It certainly does not bring back or even honor the dead. It also does not ennoble the living. It does nothing to assuage the sorrow of the victim's loved ones. In fact, as I sat through the commission hearings waiting to testify, I heard from victims' families who said the opposite — that the death penalty's uncertainty only brought them more grief.

The closer you look at it, the less the death penalty makes any sense. As the Maryland commission found, the risk of executing an innocent person is just too high to justify maintaining a punishment that does not deter, costs too much, and harms victims' families.

And as a former police officer, I would add that the death penalty is not needed to protect the public. It is time for Maryland to make the common-sense choice and replace the death penalty with life without parole.

Michael May, of Rodgers Forge, Maryland, is an attorney and formerly served as a Baltimore City police officer and a military police officer