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Model Conduct

Posted: 03/16/10 05:37 PM ET

Who knows what tomorrow will bring, but for now, let's applaud Fred Bright. Fred Bright is the District Attorney for the Ocmulgee Judicial Circuit in Georgia, and the prosecutor leading the investigation into the recent allegations against Pittsburgh Steeler quarterback Ben Roethlisberger. Now, we don't know much about Fred Bright, but he appears to be a special bird: a prosecutor in a high-profile case who doesn't flock to the television cameras, but who waits to learn the facts first and then make decisions.

How do we know this about Mr. Bright? Because here is a sampling of the limited amount that Mr. Bright has said according to various articles:

"The investigation is ongoing. It would be premature to make any announcement at this time."

"When the facts are in and a decision is made, we will let you know."

"I've been made aware of the allegations but the investigation is not complete yet. We are waiting for the investigation to be completed."

"We will do the right thing. Let us do the right thing."

"It is premature to say anything more."

Yes, that's right. A prosecutor in a high-profile celebrity case is choosing to stay mum and investigate. That's why the lawyer you're hearing from is Big Ben's Atlanta-based defense lawyer, not the other way around as it too often is.

State legal ethics rules and U.S. Department of Justice guidelines limit the public statements prosecutors are allowed to make, but they haven't stopped many prosecutors. As the markets know all too well, one of the greatest media circus ringmasters was Rudy Giuliani when he was the U.S. Attorney for the Southern District of New York. Handcuffing people in their offices and parading them through the press earned him the dubious distinction of having caused the phrase "perp walk" to enter criminal justice parlance.

Then we had Eliot Spitzer. While N.Y. Attorney General, he went on national television -- This Week with George Stephanopolous -- and declared Hank Greenberg guilty before presenting one piece of evidence to a juror. Moreover, his office also reportedly leaked allegations against his targets that went unsourced when reported in the media.

Of course, New York is not alone. The Duke Lacrosse case is now the epitome of grab-the-klieg lights prosecutorial misconduct. Not every prosecutor, however, deserves the disbarment that Michael Nifong got, but Nifong was following a long tradition of prosecutors (including at the highest level) who chose the airwaves to help convict presumably innocent defendants, boost their careers, or for other reasons.

For example, let's remember Stephen Hatfill. He's the scientist initially tagged as the anthrax mailer. We didn't need the Department of Justice's recent final report concluding somebody else was the mailer to know that what the Bush D.O.J. did to Hatfill was just wrong. Hopefully, none of us have forgotten then -- U.S. Attorney General John Ashcroft's infamous public labeling of Hatfill as a "person of interest." All of us taxpayers paid the price for that misconduct -- we paid Hatfill over $5 million to settle his lawsuit against the government claiming it invaded his privacy and ruined his reputation.

Legal ethics and common sense tell us that prosecutorial public restraint is critical in order to help ensure that a defendant receives a fair trial. This is serious stuff, and goes way beyond someone's reputation. It goes to helping ensure that a jury won't be prejudiced against a defendant and wrongly convict someone based on what the jury heard a prosecutor say on the radio before it heard even one piece of evidence. This is why we sometimes hear about trials being moved from one jurisdiction to another.

So, while we don't know the facts about Mr. Roethlisberger's case, we do know that the lead prosecutor investigating it seems to be taking his job and his public duty seriously. Thus, for today at least, we all should tip our hats to Fred Bright. May he continue to follow his own footsteps.

Mr. Goldberg was Special Associate Counsel to President Clinton. Mr. Galper is a veteran of political communications and speechwriting. Both are partners at Orrick, Herrington & Sutcliffe LLP, specializing in crisis management and public strategies.