Wednesday, August 23, 2006

State's 'Ethical Compass'?

Well, there you have it. Tom Perez, one of the three men in the race for Maryland Attorney General, calls the job "the state's ethical compass."

Anybody who actually knows Doug Gansler knows that rules him out for the job. The man has no ethical compass. His only compass points due Gansler. Read on.

Tuesday, August 15, 2006

Gansler's Fat-Cat Friends

It's no surprise Gansler has more money than the other guys. He's a salesman, for God's sake! But that's all he is.

Tuesday, August 08, 2006

Gansler: Opportunistic and Untrustworthy

Hi. Welcome to the blog.

I have no affiliation with any political campaign. I just know Doug Gansler. And like many of us who know Doug Gansler, I know him to care about only one thing: Doug Gansler. He is a pure opportunist, with absolutely no convictions except one: Do what's best for Doug Gansler.

Montgomery County voters should not have trusted him to be State's Attorney -- but what's done is done.

The state of Maryland, however, does not need a self-seeking, unprincipled narcissist as its Attorney General.

Do you know Doug Gansler? Am I right? I would encourage you to post your comments.

In the meantime, here are a few recent stories about Gansler. Some might make you laugh out loud. Some should be taken with a grain of salt.

This one is a good example of how much you can trust Gansler: The Gazette ran a story, Gansler says sniper trial cost less than $2,000; Sheriff, others put the costs closer to three-quarters of a million dollars — so far.

Are you laughing? That totally unneeded trial existed for one reason: To get Gansler on television. Of course it cost the taxpayers a fortune, but rather than admit that, Gansler just lies! And he gets away with it!!

Here's a story from the Washington Post: Democrats Look for Edge as Race Heats Up. This one notes that Gansler has been endorsed by Prince George's County Executive Jack B. Johnson. What the heck is up with that? Johnson should know better. How did Gansler con him into that? Or did he make Johnson some promises? Because what do you know, a few days later the Post has this story about Johnson: Prince George's County Executive Aids Friends; Jack Johnson has awarded contracts and jobs worth millions of dollars to his supporters. He says he is simply hiring "first-class people."

Okay, I guess it's possible there was no quid pro quo, and Gansler and Johnson are just kindred corrupt self-serving politicians.

There are some other WaPo stories that give you a taste for Gansler and his self-promoting grandstanding. I don't see them on line, so I'm blogging them here.

And don't miss Gansler on the Daily Show.

Gansler's Idea of a Fine Line

Maybe Doug was thinking back to his own unprosecuted past:

"There's a fine line, sometimes, between going out and having a good time and committing armed robberies." Those words of wisdom come courtesy of Maryland State's Attorney Doug Gansler. He was referring to the five Walt Whitman High students who were charged yesterday with the armed robbery of a Smoothie King.

From DCist.

Gansler on the Daily Show

This is funny. Did Gansler not know what the Daily Show was? Or did he think he could somehow charm his way through the interview? Or, most likely: Is he willing to do absolutely anything to get on television?

Here's Gansler making an absolute fool of himself.

P.S. This is all about mooning.

Gansler Gets Censured by High Court

Washington Post, November 13, 2003

High Court Censures Gansler; Punishment Is First for a Sitting State Prosecutor in Md.

By Fredrick Kunkle
Washington Post Staff Writer

Maryland's high court reprimanded Montgomery County State's Attorney Douglas F. Gansler yesterday for violating a professional rule of conduct against making out-of-court statements before trial, marking the first time that a sitting prosecutor in Maryland has been publicly censured, the court said.

The Court of Appeals unanimously ruled that Gansler (D) improperly discussed evidence, such as a defendant's confession, at news conferences "on more than one occasion" involving three criminal cases.

In effect, the court held that a prosecutor's right to address the public about high-profile crimes was outweighed by a defendant's right to a fair trial before jurors who have heard only testimony and argument in a courtroom.

Gansler, who has served as state's attorney since January 1999, said he does not believe he did anything wrong.

"No one really believes that a publicly elected official cannot publicly state that which is public -- but that's what the opinion is saying," Gansler said. "My view is that I have a legal, moral and ethical obligation to inform the public about what's going on in the criminal justice system."

Gansler's attorney, Carmen M. Shepard, called Gansler's punishment "extreme" and predicted that the opinion would inhibit prosecutors from saying anything about their cases outside the courtroom or beyond the exact text of court pleadings. Lawyers involved in the case said they know of no other instance in the nation in which a prosecutor was formally sanctioned for commenting publicly about pending cases.

In a 48-page opinion filed yesterday, the court found that Gansler made improper public comments about suspects in the killings of jogger Sue Wen Stottmeister in January 2001 and Monsignor Thomas Wells in June 2000. The court also held that Gansler should not have publicly discussed a possible plea bargain for James Edward Perry. Those remarks were made after the high court reversed Perry's conviction in the contract killings of his 8-year-old paraplegic son, the boy's mother and a nurse.

The court rejected allegations filed by the Attorney Grievance Commission that Gansler had committed professional misconduct in two other cases.

The last time a sitting state's attorney received any sort of censure was a private reprimand "a substantial number of years ago," said Melvin Hirshman, bar counsel for the Attorney Grievance Commission.

"Today's decision demonstrates that if [a prosecutor's] power is abused in the press, the court will not hesitate to take action," said Larry Nathans, immediate past president of the Maryland Criminal Defense Attorneys' Association.

"I think the defense bar will be pleased that those few prosecutors who violate the rules of ethics would get the message."

Post Story Exposes Gansler as Media Whore

Washington Post, January 14, 2002

Courting a Public Future; Montgomery's Media-Friendly Top Prosecutor Builds Political Possibilities

By Katherine Shaver
Washington Post Staff Writer

Visitors to his fifth-floor office in the Rockville courthouse can't miss the Time magazine photo of the tough-guy prosecutor -- sleeves rolled up -- hanging framed near the door.

Want a snappy sound bite? A colorful quote? A quick photo op?

Just give Montgomery County State's Attorney Douglas F. Gansler a minute to pull on his jacket and straighten his tie. Smart, telegenic and unabashedly ambitious, Gansler has made himself the most visible chief prosecutor in the Washington area.

When CNN producers need a prosecutor to interview on short notice, he's their guy. Fresh off his latest appearance on NBC's "Today" show, he jokingly refers to "my boy, Matt Lauer."

After barely making headlines in the shadow of post-Sept. 11 war coverage, Gansler is back in the spotlight -- and he's having a ball. Turns out a new movie called "Kandahar" about the Taliban stars a man who Gansler believes gunned down a Bethesda man in 1980 for criticizing the Iranian government of Ayatollah Khomeini. The suspect fled to Iran.

Then came the charges against a woman referred to as the "black widow," who is accused of killing two husbands and intimidating witnesses by threatening them with voodoo. And last week, his office brought charges in another high-profile case: the alleged attempted murder of a Bethesda man by a State Department officer who was a close friend of the man's estranged wife.

Now 39, Gansler until three years ago had never tried a case in Maryland and had no experience in elective office. A Democrat, he now has his sights on Maryland's attorney general job.

But despite a string of convictions in high-profile cases and high praise from community activists, Gansler can't seem to shake a nagging question: Is he a refreshing voice informing the public about Montgomery's criminal justice system or a press-hogging lawyer bucking for a political promotion?

"I appreciate a provocateur in the right setting, but it's a difficult act, and you can get burned," said Cynthia Rubenstein, a civic activist in eastern Montgomery.

"I think first and foremost in his mind should be the question of, 'How does this serve the people?' " Rubenstein said. "Sometimes, I think he may also be asking, 'How can I serve my ambitions?' "

Others said they don't care what motivates him.

Myrna Taylor, a Rockville resident and a vice president of the Montgomery County Civic Federation, said she likes the way Gansler publicizes the workings of his office. "I like to know what's going on," Taylor said.

At the same time, Gansler, a self-professed outsider, has frequently angered Rockville's tightknit courthouse community. He has criticized -- publicly and loudly -- sentences handed down by longtime judges. He's talked so much about ongoing cases that several defense lawyers have sought gag orders. He's upstaged police so often that they demanded, and got, an agreement on who would speak about major arrests.

Gansler is widely considered an energetic -- sometimes to the point of hyper -- politician who blazed onto Montgomery's staid political stage and soon took on the top Democrat, County Executive Douglas M. Duncan.

When the Montgomery police department, which reports to Duncan, conducted stings on illegal massage parlors by using informants to have paid sex, Gansler and Duncan feuded over who was to blame for the questionable tactics and the existence of the parlors.

That was six months after Gansler spurned Duncan's expected bid for governor by attending a secret meeting to rally support for Maryland Lt. Gov. Kathleen Kennedy Townsend (D). His relationship with Duncan has grown frostier. Most recently, rumors have circulated that Duncan has encouraged other Democrats to challenge Gansler when he seeks reelection -- something Duncan denies.

"He's the other Doug in Montgomery County," Howard A. Denis, a Republican Montgomery County Council member and former state lawmaker, said of Gansler. "Both cast a big shadow. I think both have statewide ambitions, and both have people who can be critical."

Gansler acknowledges and seems to mock his enjoyment of, even need for, public attention. "Oh, here I am!" he once exclaimed, eyeing a front-page newspaper story on his desk. Then he frowned: "Kind of a bad picture."

Acutely aware of his image, Gansler told a reporter working on a profile of him: "Remember -- nice, nice, nice. No one wants to read mean." He wanted to know whether he was going to get front-page play.

"The complaint people have is one of style and personality," Gansler said in a recent interview. "When you put yourself out there, people react to that.

"In some offices, prosecutors get criticized for not turning over evidence or having poorly trained prosecutors or not having diversity in the office or not winning slam-dunk cases."

Gansler attributed the attention to a string of sensational cases handled by his office: heavyweight boxer Mike Tyson's road-rage attack; Samuel Sheinbein's flight to Israel to avoid prosecution for the mutilation murder of another teenager; convicted killer Hadden Clark's trial and revelations about the disappearance 13 years earlier of 6-year-old Michele Dorr; seven middle school students who falsely accused a gym teacher of molesting them; a homeless tree trimmer who fatally stabbed a Catholic priest in the rectory of his Germantown church.

It's not that Gansler calls the media -- he simply makes himself remarkably available. When a TV news show wants a prosecutor on the air at 6 a.m., Gansler happily obliges. If reporters need a quote on a weekend, Gansler invites them to his Chevy Chase home. He rarely, if ever, says, "No comment."

"I'm criticized because I get a lot of press attention, and I speak my mind and the truth about my views on law enforcement," Gansler said. "I view part of my job as helping to educate the public from a pro-law-enforcement, pro-citizen, pro-victim perspective."

Gansler insisted that he is a politician only because he must get elected to do a job he loves, but he rarely misses a political event. His campaign has $ 315,000 in the bank -- more than three times the most ever spent on a Montgomery state's attorney's race, raising questions about how far he has set his sights.

"He's not going to be in this county in 10 years," said Cornelius J. Vaughey, the administrative judge for Montgomery's District Court. "Maybe that's what's got everybody. People can see it."

In January 1998, Doug Gansler quit his job as a federal prosecutor in Washington to run for his current job. He had tried 15 homicides but had few high-profile cases to his name -- most notably the conviction of a Georgian diplomat in the 1997 drunken-driving death of a Kensington teenager near Dupont Circle.

Although the old-guard Rockville courthouse crowd considered Gansler an upstart, he had been grooming the political trail for years.

Gansler spent his high school summers working in the press office of then-U.S. Sen. Birch Bayh (D-Ind.). His job: pitching the senator's sound bites to TV and radio stations.

"He was straightforward even in college about the fact that he wanted to go into public service," said Michael N. Levy, a friend who worked with Gansler at the U.S. attorney's office.

He came with an insider's resume: Raised in Chevy Chase. High school at Sidwell Friends. College at Yale. University of Virginia law school. Two years as an associate at the Howrey & Simon law firm in Washington. Almost seven years as a mid-level prosecutor at the U.S. attorney's office. His father held high-level Defense Department posts in the administrations of four presidents.

His wife, Laura Leedy Gansler, 39, said she remembers his talking politics early in their dating at Virginia. (They met the first day of law school. As Gansler remembers it: "After I found out she went to Harvard, I walked up and asked her to be in my study group.") She remembers him talking about his days running the Yalies for Gary Hart campaign. She thought it a bit weird, she said, that a twentysomething liked spending his Thursday and Friday nights at grass-roots political meetings.

Laura Gansler, a part-time attorney for the National Association of Securities Dealers, shies away from the spotlight. She said she never expected her husband to win the state's attorney race, but she thought his running would be a good example of risk-taking for their sons, Samuel, now 7, and William, 4.

"In retrospect, I shouldn't have been skeptical," she said. "He takes risks, but he doesn't do things he doesn't think he has a relatively good chance of success at."

Virtually a no-name to the public, Gansler proved a dogged campaigner, jogging door-to-door on muggy summer afternoons with a list of likely Democratic voters. At debates, his youthful looks and bouncy energy made him look like a college whiz kid trying to one-up his father's friends.

He promised to put prosecutors in closer touch with neighborhoods and criticized his opponent, incumbent Robert L. Dean, as part of the "country club" that had ruled the Montgomery courthouse for 30 years. It also didn't hurt that Dean, the homegrown Democratic favorite, was facing a sexual discrimination lawsuit from a former prosecutor.

Since taking office, Gansler has remained active on Maryland's Democratic political circuit. As of now, he said, he's running for reelection. If J. Joseph Curran Jr. (D) decides not to seek reelection as Maryland's attorney general, Gansler said he would "strongly consider" running for the job. He has already signed up to run Townsend's expected gubernatorial campaign in Montgomery.

American University law professor Jamin Raskin called his friend of 12 years a "born politician" -- gregarious, loyal, ferociously energetic, genuinely happy being with people. He introduced Gansler at political events as "the only Jewish guy you'll ever meet who looks like he could be a member of the Kennedy family."

"I always tell Doug what my grandfather told me: that your ambition should show like the shirt sleeves on a suit. They should stick out a bit but not too far," Raskin said. "I think his shirt sleeves are certainly showing, but I don't think they're too far out. . . . I'm not denying Doug is ambitious. My point is: Doug is ambitious, and that's a perfectly good thing in politics."

The child molester was on his way to jail, but Gansler had some words for the judge.

An 18-month jail term for having sex with an 11-year-old girl was "more appropriate for a shoplifter," he wrote in a news release. As for the judge's courtroom comments that the girl had invited the man into her bedroom and "it takes two to tango," Gansler wrote: "This was an 11-year-old. This was not a tango."

What became known as the "tango incident" -- one year into Gansler's term -- marked the beginning of rocky relationships between Gansler and those he must work with, including some judges, defense lawyers and police.

"Am I going to see my comments in tomorrow's paper?" some judges began asking Gansler's prosecutors. "Get Gansler down here. He needs the experience," one judge snapped to a prosecutor who asked for a postponement.

Some judges said they believed that Gansler was sacrificing their reputations for his political gain, saying he misrepresented what went on in their courtrooms.

"We were infuriated," said one judge, who regularly oversees cases tried by Gansler's prosecutors and for that reason spoke on condition of anonymity.

"For years, the courthouse culture was a culture of silence," said James Shalleck, a Gansler supporter and a two-time Republican candidate for state's attorney. "Judges wouldn't be attacked by lawyers or criticized by the state's attorney. Doug has changed that culture by criticizing judges when he thinks they're wrong and bringing it to the public's attention."

Longtime Rockville lawyer Philip Armstrong attributed Gansler's "fair number of bumps in the road" to the fact that he is an outspoken outsider who made changes.

"It's not easy coming in here as a comparatively young prosecutor taking over a legacy of 30 years," Armstrong said. "A lot of people wanted him to fail."

Gansler has won convictions in the three Montgomery cases he has tried, though he is not regarded as an exceptional legal mind. The Maryland Court of Special Appeals chastised him for comments he made during the 1999 trial of a man charged with killing his son to collect life insurance on the baby. The man appealed his conviction, in part contending that Gansler had prejudiced the jury by making an argument that he had promised the judge he wouldn't make.

The appeals court called Gansler's actions "perplexing and disturbing" but found that his "isolated comment" was not so prejudicial as to warrant the man's getting a new trial. Gansler said the appeals court considered his comment out of context, and he dismissed the issue as unimportant.

One longtime prosecutor said the potentially case-reversing remark was seen as reckless for a county's chief prosecutor.

Gansler also is not the person to ask about the finer points of Maryland law. Ask, and he often responds with a shout of "Kay! John!" out his open office door, summoning his two deputies -- both far more seasoned prosecutors -- for the answer.

But judges and defense lawyers said he is sharp, persuasive and quick on his feet. He has drawn praise for a new screening program that clears bogus and unprosecutable cases from the crowded District Court docket and for helping establish a Domestic Violence Court. The Montgomery state's attorney's office now boasts its first female deputy, its first Asian American prosecutors, triple the number of African American prosecutors and twice as many Spanish speakers.

Gansler's revamping of the office to assign prosecutors to neighborhoods won him quick praise from civic leaders. Jim Johnson, a community activist in east Takoma Park and east Silver Spring, said he was wary of Gansler until he saw crimes such as low-level drug dealing and purse snatchings get personal attention from the prosecutor assigned to his neighborhood.

"Is he creating a political machine through this?" said Johnson, co-chairman of the Long Branch Neighborhood Initiative. "Whether he's intending to or not, I'm sure he's inspiring a lot of loyalty. My bottom line is: How is it working for us? It seems to be working very well."

In addition to attorney general, Gansler's name has been mentioned as Townsend's lieutenant governor running mate. He is coy about whether he would want the job. When pressed, he finally says: "I'd probably be dogcatcher if she asked me to be dogcatcher. I think she's great."

And what about stories that he has been boasting to friends for years that he plans to be president of the United States?

Gansler, never at a loss for a catchy quote or quick comeback, suddenly falls speechless. The question leads to silence. And more silence. Finally, he says going from the Rockville courthouse to the White House is a "big leap," something he doesn't think about in "practical terms."

He is blushing. He also is smiling.

Gansler Grandstanding

The Washington Post, November 17, 2002

Gansler Touched Some Nerves in Sniper Case

By Jo Becker
Washington Post Staff Writer

Just hours after the alleged snipers were arrested, Maryland's top federal prosecutor pitched a deal to Montgomery County's prosecutor: Both wanted to prosecute the high-profile case; why not join forces and try a federal case together?

Within a day, State's Attorney Douglas F. Gansler would put a very public end to that notion. Standing before a phalanx of television cameras outside the Montgomery County courthouse, Gansler became the first prosecutor to file local murder charges against John Allen Muhammad and John Lee Malvo.

He then began publicly debunking the legal underpinnings upon which U.S. Attorney Thomas M. DiBiagio planned to build a federal death penalty case.

With those bold moves, Gansler may have lost whatever remote chance his office had to try the case. He also provoked local prosecutors on both sides of the Potomac River as well as federal authorities in the Justice Department.

Thirteen days after Gansler had his news conference, Attorney General John D. Ashcroft announced that local prosecutors in Virginia would charge Muhammad and Malvo with capital murder in connection with slayings in Fairfax and Prince William counties. Gansler had no input into the decision: He was not even invited to Ashcroft's news conference.

A look behind the scenes sheds light not only on the acrimonious angling that took place among prosecutors, but also upon the tactics of a man who openly yearns to become Maryland's next attorney general.

It is a story of ambition, old enmities and deep schisms within the county's law enforcement community that could affect Gansler's political future. It is not only about the law -- which always favored Virginia as a place to try the suspects because its death penalty statutes were considered more clear-cut -- but about politics, a realm in which Gansler found himself with few well-placed allies.

Murder trials are as much about healing and closure as they are about guilt and innocence, and no community was more affected by the deadly sniper attacks than was Montgomery County. As Gansler pointed out, six of the 10 homicide victims in the Washington region were killed there, and a seventh called it home. But with Ashcroft's Nov. 7 decision, it remains unclear whether the two suspects who authorities believe are responsible will ever be held accountable for the killings in Montgomery County.

To supporters, Gansler was punished for doing his job and was widely and unfairly tarred as promoting himself when he was simply promoting the interests of the community.

"A lot of prosecutors and politicians at the state and federal level have ambitions, but their motivations weren't questioned simply because they aren't as open about it as Doug," said Michael Levy, who worked with Gansler in the U.S. attorney's office in Washington.

But his media-savvy approach sometimes lands him in trouble. This week, the state's Attorney Grievance Commission told a court it believed Gansler had violated pretrial publicity rules in three Montgomery County cases that predate the sniper shootings.

Stanton Gildenhorn, a lawyer and staunch supporter of incumbent judges -- some of whom Gansler has publicly pilloried -- said he believed Gansler's position that Montgomery County should go first was the morally correct one. But, Gildenhorn said, "his problem was that he's viewed as overly ambitious, and his actions here played right into that image."

The suspicions began even before police had the suspects in custody.

On Oct. 7, four days after officials realized that they had a serial shooter on their hands, Montgomery County Police Chief Charles A. Moose announced that he had sent a letter to the Justice Department making their ad hoc relationship formal.

A news conference stressed the unified effort, but a meeting beforehand was anything but. Gansler walked into Moose's office to find DiBiagio on the scene. What exactly was the federal prosecutor's role, Gansler wanted to know.

Even before that day, the two prosecutors seemed at odds, politically and professionally.

DiBiagio's office was investigating the Maryland Governor's Office of Crime Control and Prevention, headed by Lt. Gov. Kathleen Kennedy Townsend (D). He was appointed by President Bush with the support of Rep. Robert L. Ehrlich Jr., Townsend's Republican opponent in the governor's race. Gansler was among Townsend's chief supporters in Montgomery County.

Plus, there were those in Gansler's office who felt that DiBiagio was predisposed to poach on cases. In a high-profile "black widow" case, involving federal charges against a woman accused of killing two husbands, DiBiagio's office teamed up with the woman's defense in asking U.S. District Judge Deborah Chasanow to impose a gag order. The request followed Gansler's discussion of the case on NBC's "Today" show.

"I probably expressed our concern about working with his office because of their history," Gansler said in an interview.

Moose also clashed with Gansler over the prosecutor's accessibility to the press in the sniper case, so much so that a gentleman's agreement had to be forged: Gansler would not go before the cameras until an arrest had been made.

Several sources said Moose blew up at Gansler after the prosecutor questioned DiBiagio's role. "This isn't about you; it's about catching the bad guys," Moose said, according to sources. Gansler denies those accounts, characterizing the meeting as cordial.

The morning of Oct. 24, Muhammad and Malvo were arrested while sleeping in their car at a Maryland rest stop. The two were quickly transported to Montgomery's juvenile assessment center, and the task force investigating the crimes secured a warrant for the car, where officers found what they said was a treasure trove of evidence.

An interrogation began. According to federal and local sources, Malvo said nothing, and Muhammad said nothing useful, but he was talking. At some point, DiBiagio spoke by phone with FBI agent Gary Bald. The two suspects had been arrested on unrelated federal charges, and the law required that they be brought before a magistrate without unnecessary delay. Twelve hours is about the limit, sources said DiBiagio told Bald.

Meanwhile, a Montgomery County police sergeant began arguing to members of the task force that there was enough evidence to charge the two men with murder locally, three law enforcement sources said. Why bother with the federal charges?

What happened next is the subject of dispute. Some say that in several phone calls, DiBiagio invoked the White House and the Justice Department to pressure Gansler into turning the suspects over to him. The U.S. attorney has denied that, but some Montgomery officials felt that Muhammad's interrogation was cut short unnecessarily.

What is clear is that Gansler cooperated in sending the suspects on their way to federal court in Baltimore, unsure whether he would ever see them again.

Moose, who was grateful for the federal help, agreed with the decision to transfer the suspects, according to sources; DiBiagio was just going by the letter of the law.

The Justice Department now was firmly in the driver's seat as the prosecutorial battle escalated, its possession of the two suspects the ultimate trump card.

The next morning, Gansler began calling federal and state prosecutors to invite them to a meeting. A jittery public needed to know that law enforcement officials believed that the two men in custody were in fact the snipers, he said.

But word soon leaked out that Gansler planned to have a news conference after the meeting to announce that he would file murder charges. Gansler has repeatedly said he wasn't naive enough to believe that just because he filed first meant he would get to prosecute first. "Everyone was told what we planned to do, and everyone encouraged us to do it," he said in an interview.

But, according to Virginia sources, Gansler received no such encouragement. Instead, they said, Gansler said other prosecutors were coming to the meeting when they weren't.

In a conference call that day, the Virginia prosecutors involved in the case asked one another if they planned to attend. "It went right around the horn: I'm not going, I'm not going, I'm not going," one source said.

Prince George's County State's Attorney Jack B. Johnson arrived at the meeting to find he was the only chief prosecutor from another county there. Upon learning of the news conference, Johnson said he turned around and went home.

"It was clear to me that it wasn't really a meeting," he said. "It was to try to ensure that Montgomery County would prosecute the case, as opposed to hearing how other prosecutors felt."

Gansler announced his decision that Friday, then appeared on the Sunday talk shows to make his case.

Ashcroft returned from a trip to Asia that weekend as Gansler was hitting the television circuit. Who is this Gansler? he asked aides.

Justice officials were outraged that the Montgomery County prosecutor was publicly disparaging their ability to bring capital charges against the men based on a law intended to root out organized crime, as they intended to do.

In an interview, Gansler said he was just being honest. He spoke out for the same reason that he rejected DiBiagio's joint prosecution offer, he said.

"Our prosecutors have integrity and ethics," he said. "They would not be willing to stand before a jury regardless of how bad these guys were and ask that two people be sentenced to death based on a theory no one believed in."

From that point forward, Gansler was cut out of the loop. Ashcroft consulted with Moose, who said he had no preference as to where the prosecution took place, according to sources. Montgomery's popular county executive, Douglas M. Duncan (D), also did nothing to help Gansler.

Gansler had crossed him two years ago by helping to sew up Montgomery support for Townsend at a time when Duncan was still considering entering the governor's race. Duncan told one official that if there was any doubt about Maryland's death penalty laws, the case should go to Virginia, according to one source.

In the end, that's what Ashcroft decided to do, with the approval of Duncan and Moose. When it came to imposing the death penalty, Virginia had the upper hand. Experts also believe that Virginia's terrorism statutes do not require prosecutors to prove who was the triggerman, unlike laws in Maryland. Plus, Maryland does not execute juveniles like Malvo.

For all the bickering, the legal points may well have decided the matter. That it happened without any input from Montgomery's top prosecutor, however, shows just how isolated Gansler was.

The federal government's handling of the case has angered some in Montgomery's legal community. "Doug Gansler was screwed, but really it was Montgomery County that was screwed," said Steven VanGrack, a lawyer.

But Duncan said that if the two men are convicted and sentenced to death in Virginia, he sees little point in another trial.

Gansler said he remains disappointed for the people of Montgomery, but not for himself. "I got hit for doing my job," he said. "But real people come up to me all the time, and they thank me for fighting for them."

Staff writers Sue Schmidt, Katherine Shaver and Josh White contributed to this report.

Tuesday, August 01, 2006

Marlyand Court of Appeals: 'Gansler is Hereby Reprimanded'

Also available in PDF form here. Order dated November 12, 2003

Attorney Grievance Commission v. Douglas F. Gansler, Misc. Docket AG No. 81, September Term 2002.

[Maryland Rules of Professional Conduct MRPC 3.1 (Meritorious Claims and Contentions_, 3.6 (Trial Publicity), 3.8 (Special Responsibilities of a Prosecutor), 8.2(a) (Judicial and Legal Officials), and 8.4(a) and (d) (Misconduct); held: Respondent, a States’s Attorney, did not violate Maryland Rules of Professional Conduct 3.1, 3.8, and 8.4 by prosecuting two juveniles accused of telephoning bomb threats. Respondent did violate Maryland Rule of Professional Conduct 3.6 by making extrajudicial statements regarding a criminal defendant’s possibility of a plea of guilty, another criminal defendant’s confession, and his opinion as to the guilt of two criminal defendants. For these violations, Respondent shall be reprimanded.]



Misc. Docket AG No. 81

September Term, 2002





Bell, C.J.






Karwacki, Robert L.

(Retired, specially assigned),


Opinion by Battaglia, J.

Filed: November 12, 2003

Respondent Douglas F. Gansler was admitted to the Bar of this Court on December 18, 1989. On November 7, 2002, the Attorney Grievance Commission of Maryland, by Bar Counsel, acting pursuant to Maryland Rule 16-751(a),[1] filed a petition for disciplinary action, alleging that Gansler violated the following Maryland Rules of Professional Conduct (hereinafter “MRPC”): MRPC 3.1 (Meritorious Claims and Contentions),[2] MRPC 3.6 (Trial Publicity),[3] MRPC 3.8 (Special Responsibilities of a Prosecutor),[4] MRPC 8.2(a) (Judicial and Legal Officials),[5] and MRPC 8.4(a) & (d) (Misconduct).[6]

The charges arose from numerous extrajudicial statements made by Gansler, who has served as the State’s Attorney for Montgomery County since January of 1999. By order dated November 13, 2002 and pursuant to Maryland Rules 16-752(a) and 16-757(c),[7] we referred the petition to Judge Julie R. Stevenson of the Circuit Court for Frederick County for an evidentiary hearing and to make findings of fact and conclusions of law. During that hearing, which took place on March 10, 2003, Bar Counsel offered into evidence three videotapes of Gansler’s extrajudicial statements and the report of his expert in the case, Professor Abraham Dash. Professor Dash and Professor Lisa Lerman, Gansler’s expert, testified at the hearing. Gansler also offered his own testimony as well as that of two Deputy State’s Attorneys for Montgomery County.

Judge Stevenson filed a Report and Recommendations on April 29, 2003, in which she presented findings of fact and conclusions of law. Judge Stevenson concluded that Bar Counsel had presented clear and convincing evidence that Gansler, in one instance, had violated MRPC 3.6(a); however, in Judge Stevenson’s judgment, the evidence insufficiently supported Bar Counsel’s charges that Gansler had violated MRPC 3.6(a) in other instances and had violated other MRPC provisions. Both Bar Counsel and Gansler filed exceptions to Judge Stevenson’s findings and conclusions. We overrule Gansler’s exception and conclude, further, that he violated MRPC 3.6(a) on more than a single occasion. Accordingly, as to Gansler’s extrajudicial statements in which he discussed Cook’s confession and his opinion of Cook’s and Lucas’s guilt, we sustain Bar Counsel’s exceptions.

I. Facts

The undisputed facts in this case have been proven by clear and convincing evidence as required by Maryland Rule 16-757(b). Those facts demonstrate that, between 2000 and 2001, Gansler made several extrajudicial statements in connection with his office’s prosecution of various well-publicized crimes. A discussion of the circumstances of each of the extrajudicial statements follows.[8]

A. The Cook Case

In late January of 2001, Sue Wen Stottsmeister was found beaten and unconscious. She had been accosted while jogging along a recreational path located in the Aspen Hill area of Montgomery County. Ms. Stottsmeister ultimately died from the injuries she suffered during that attack.

Nearly six-months later, on June 4, 2001, Albert W. Cook, Jr. allegedly attacked a woman near his home. Witnesses of that attack chased and kept visual contact with Cook until police arrived and arrested him for that incident. While the police were investigating the June 4, 2001 attack, they began to focus their attention on Cook as a suspect in the murder of Stottsmeister. In the afternoon of June 5, 2001, police officials convened the media for a press conference. Before the press conference began, a Washington D.C. television station broadcasted a report that large sneaker footprints had been found at the scene of the murder and that Cook had large feet that might fit sneakers of that size. The press conference then commenced, and the police announced that Cook would be charged with the Stottsmeister murder.

Gansler attended that press conference and made several statements to the media regarding the anticipated prosecution of Cook. He described Cook’s confession and the circumstances surrounding his custodial statements to police:

The police were able to obtain a confession completely consistent with [Cook’s] constitutional rights, he confessed within just a few hours with incredible details that only the murderer would have known. He was then provided the opportunity to rest and . . . he slept, and where he had said was one of the best nights of sleep he had gotten in a long time.

This morning at dawn, he was taken up to the crime scene, video taped by police, and went over in detail by detail every step of what he did to Ms. Stottsmeister this past January.

Gansler further stated that investigators had “boot print matches and that type of thing, or actually in this case the sneaker matches, but we’re very confident, obviously more than confident that we have apprehended the right person . . . .”

After the press conference, police charged Cook with the murder of Stottsmeister.[9] The statement of charges, which was filed in the District Court of Maryland, Montgomery County, stated: “Cook provided a full and detailed account of the assault and murder of Stottsmeister. . . . Cook provided details about the murder that would only be known by the perpetrator of the crime.”

B. The Lucas Case

While asleep during the middle of the night, Monsignor Thomas Martin Wells, a revered member of the Montgomery County community, was beaten and killed in the rectory at his parish. On June 17, 2000, the Montgomery County police arrested Robert P. Lucas and charged him with the murder of Monsignor Wells. The statement of charges stated that the police had observed Lucas “wearing shoes having a shoe print consistent with the ones found on the crime scene” and that after Lucas was arrested, he “admitted breaking into the church rectory and responsibility for Well’s murder.”

The police held a press conference on June 18, 2000 to announce the arrest of Lucas and the charges against him. Gansler spoke at the press conference:

The Montgomery County Police . . . were able to determine definitively that indeed it was Mr. Lucas who had committed the crime. They were able to do so by following him. They conducted surveillance for over 24 hours. And then when they actually found him, he was wearing a very unique shoe, a very unique boot, and the print of that boot matched the print that was found at the scene of the crime, and then further questioning revealed, in fact, he was the person that had done it.

He offered several remarks about the evidence against Lucas, which he described as “a confession from the perpetrator as well as scientific and forensic evidence to corroborate that confession . . . .” Gansler then expressed his opinion that “we have found the person who committed the crime at this point” and that the case against Lucas “will be a strong case.”

Additionally, Gansler commented at the press conference that “it was a violent murder” and that Lucas “has a criminal record which includes residential burglaries and that will be obviously something that will come out later on as well.” In fact, Lucas’s criminal record came out again later, when Deputy State’s Attorney Katherine Winfree discussed it at Lucas’s bond hearing on the Monday after the press conference.

C. The Perry Case

James Edward Perry was convicted in the Circuit Court for Montgomery County of first-degree murder and sentenced to death for his role in the 1993 killings of an 8 year-old quadriplegic boy, the boy’s mother, and a nurse. Although upheld on direct appeal, in post-conviction proceedings, Perry’s conviction was reversed by this Court on December 10, 1999.

On January 4, 2000, the Washington Post ran an article describing Gansler’s discussions with family members of the victims of the 1993 murders. The article explained that Gansler had asked the family members whether Perry should be retried or offered a plea agreement. Quoted in the article was Perry’s attorney, William Jordan Temple, who commented that he “certainly would look forward” to a plea offer because “anyone faced with the possibility of a death penalty considers an offer of life.”

While preparing for Perry’s retrial, Gansler made extrajudicial statements that the Gazette Community News published on April 5, 2000. According to the Gazette’s report, Gansler had announced that “he has decided to offer [Perry] a plea bargain” and that, “when the offer is formally presented, Perry would have six weeks to make a decision.” The article also recounted the events of a hearing in the Perry case, held the day before, at which the court appointed new defense counsel. At that hearing, according to the Gazette, the prosecutor “did not mention the plea bargain offer” and Perry’s lawyers “declined to discuss a plea offer or any details about the case.”

On or about July 6, 2000, Gansler again appeared in front of television cameras. Responding to questions from the media, Gansler remarked that “the Court of Appeals’ decision to reverse the original conviction of Mr. Perry was a completely result oriented opinion.” Gansler expressed his view that the “four to three” opinion “was clearly an effort to overturn the death penalty in the Perry case.”

D. The Bomb Threat Case

On February 8, 2000, the Montgomery County Journal published an article reporting the dismissal of charges against two Montgomery County teenagers who had been accused of calling bomb threats to Wheaton High School. At the juveniles’ trial, the State presented evidence of two telephone calls that purportedly were the bomb threats. One of the calls, the article stated, could not be linked to either juvenile, and the other had been made three days prior to the alleged bomb threat. The article quoted the presiding judge, who in dismissing the charges, said, “I have no idea who did this” and “I have no evidence.” The Journal account relayed Gansler’s comments that “his office will continue to prosecute youths suspected of making bomb threats, even if the case is not strong enough to warrant a conviction.” Gansler was quoted as saying, “We try hard cases. . . . Juveniles who phone in bomb threats will be prosecuted. It’s more important to prosecute someone and have them acquited[sic] than let them commit crimes with impunity.”[10]

II. The Hearing Judge’s Conclusions of Law

The hearing judge concluded that Gansler committed a single violation of MRPC 3.6 by making extrajudicial statements about his decision to offer a plea agreement in the Perry case. The judge determined that those statements clearly violated the general proscriptions of MRPC 3.6(a) as well as the specific provisions of MRPC 3.6(b)(2) limiting extrajudicial references to plea agreements. Furthermore, in the hearing judge’s estimation, Gansler’s plea agreement remarks found no safe harbor under MRPC 3.6(c), which provides that certain types of statements are permissible even though, under MRPC 3.6(a), those statements might have a “substantial likelihood of materially prejudicing an adjudicative proceeding.”

The hearing judge found no violations with respect to Gansler’s other extrajudicial statements. The judge concluded that Gansler’s references to the physical evidence against Cook and Lucas fell under the safe harbor provision of MRPC 3.6(c)(2), which allows a lawyer to state, “without elaboration,” “information contained in a public record” notwithstanding the strictures of MRPC 3.6(a) or MRPC 3.6(b). In the hearing judge’s view, the “public record” safe harbor suffered from First Amendment vagueness concerns because it was susceptible of multiple and widely varying interpretations. Lacking a precise definition, the judge indicated that the terms “without elaboration” and “public record” fail to provide lawyers with adequate guidelines for determining when “remarks pass from protected to prohibited.”

The hearing judge, however, conveyed concern over Gansler’s comments regarding the Cook and Lucas confessions, which, she stated, “clearly do no fall under [the safe harbor provision of MRPC] (c)(2),” violated “the spirit of [MRPC] 3.6” and “could create a substantial likelihood of materially prejudicing an adjudicative proceeding.” Nevertheless, the judge found no violations of MRPC 3.6 in these comments because she determined that, due to their timing, no material prejudice actually flowed from them.[11]

The judge examined Gansler’s extrajudicial criticism of this Court’s reversal of Perry’s conviction in light of MRPC 8.2. The judge agreed with Bar Counsel’s expert, who considered Gansler’s comments “a lawful and appropriate expression of opinion protected under the First Amendment of the United States Constitution.” Consequently, the hearing judge determined that Gansler had not violated MRPC 8.2.

Finally, the hearing judge concluded that Bar Counsel had not demonstrated that Gansler violated MRPC 3.1 or MRPC 3.8(a) by making comments regarding his intended prosecution of youths suspected of making bomb threats. The judge was persuaded by Gansler’s hearing testimony that “his intent was not to prosecute in bad faith” but, rather, to stress that “the State often must try cases difficult to prove.” Specifically finding Gansler’s testimony credible, the hearing judge concluded that Bar Counsel had not presented clear and convincing evidence that Gansler intended to prosecute without probable cause in violation of MRPC 3.1 and MRPC 3.8(a).

As we noted earlier, both parties filed exceptions to the hearing judge’s conclusions. Bar Counsel maintained that the hearing judge’s finding of a single violation was in error and that the evidence clearly and convincingly supported a conclusion that Gansler violated MRPC 3.6 on numerous occasions. In addition, Bar Counsel argued that Gansler intended to prosecute without probable cause, in violation of MRPC 3.1, MRPC 3.8, and MRPC 8.4(d). Bar Counsel, however, took no exception from the hearing judge’s conclusion that Gansler did not violate MRPC 8.2. Gansler found no fault with most of the hearing judge’s findings and conclusions, except, however, for her determination that his comments regarding the plea offer to Perry had violated MRPC 3.6.

III. Standard of Review

Our recent opinion in Attorney Grievance Comm’n v. Zdravkovich, 375 Md. 110, 126, 825 A.2d 418, 427 (2003), iterated our well established and frequently recognized standard of review in attorney disciplinary matters:

This Court exercises “‘original and complete jurisdiction for attorney disciplinary proceedings in Maryland,’ and conducts ‘an independent review of the record.’” Attorney Grievance Comm’n v. Blum, 373 Md. 275, 293, 818 A.2d 219, 230 (2003) (quoting Attorney Grievance Comm’n v. McLaughlin, 372 Md. 467, 492, 813 A.2d 1145, 1160 (2002)(citations omitted)). “In conducting that review, we accept the hearing judge's findings of fact as prima facie correct unless shown to be ‘clearly erroneous,’ and we give due regard to the hearing judge’s opportunity to assess the credibility of witnesses.” Attorney Grievance Comm’n v. Wallace, 368 Md. 277, 288, 793 A.2d 535, 542 (2002)(citation omitted). “As to the hearing judge's conclusions of law,” however, “‘our consideration is essentially de novo.’” Attorney Grievance Comm’n v. Dunietz, 368 Md. 419, 428, 795 A.2d 706, 711 (2002) (quoting Attorney Grievance Comm’n v. Thompson, 367 Md. 315, 322, 786 A.2d 763, 768 (2001) (quoting Attorney Grievance Comm’n v. Briscoe, 357 Md. 554, 562, 745 A.2d 1037, 1041 (2000))).

IV. Discussion

A. MRPC 3.6

This case serves as this Court’s first opportunity to consider the application of MRPC 3.6, the rule of professional responsibility governing trial publicity. More significant than the case’s novelty, however, are the balance and interplay of the numerous interests, rights, and responsibilities involved. To provide the proper context for understanding the important issues presented, we begin with a historical discussion of the regulation of trial publicity. We then proceed to dissect Maryland’s present rule and apply it to the extrajudicial statements in controversy.

1. Origins of the MRPC 3.6

Criminal justice must be carried out in the courtroom.[12] As Justice Holmes declared in Patterson v. Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 558, 51 L. Ed. 879, 881 (1907), “[t]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” The constitutional underpinnings for this concept reside in the Sixth Amendment’s right to a fair trial, made applicable to our State through the Fourteenth Amendment.[13] Ristaino v. Ross, 424 U.S. 589, 595 n.6, 96 S. Ct. 1017, 1020 n.6, 47 L. Ed. 2d 258, 263 n.6 (1976) (“A criminal defendant in a state court is guaranteed an “impartial jury” by the Sixth Amendment as applicable to the States through the Fourteenth Amendment.”) (citing Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968)); see Estes v. Texas, 381 U.S. 532, 540, 85 S. Ct.1628, 1632, 14 L. Ed. 2d 543, 549 (1965) (describing the right to a fair trial as “the most fundamental of all freedoms”). Article 21 of the Maryland Declaration of Rights also guarantees the right to a fair trial in all criminal prosecutions.[14]

The text of the Sixth Amendment makes clear that a fair trial consists of numerous components, including, but certainly not limited to, the rights of an accused to a public trial and impartial jury. These components alone, of course, do not necessarily ensure a fair trial, as Chief Justice Warren explained:

It has been held . . . that the fundamental conception of a fair trial includes many of the specific provisions of the Sixth Amendment . . . . But it also has been agreed that neither the Sixth nor the Fourteenth Amendment is to be read formalistically, for the clear intent of the amendments is that these specific rights be enjoyed at a constitutional trial. In the words of Justice Holmes, even though “every form [be] preserved,” the forms may amount to no “more than an empty shell” when considered in the context or setting in which they were actually applied.

Id. at 560, 85 S. Ct. at 1641, 14 L. Ed. 2d at 560 (Warren C. J., concurring). Thus, even where a court has observed all of the Sixth Amendment formalities, it is possible for a defendant to be deprived of a fair trial if circumstances occurring outside the courtroom taint the proceedings. See Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963) (holding that a defendant’s fundamental due process rights had been violated because a local television station had broadcasted his confession, and he was denied a change of venue).

One outside circumstance that may affect a defendant’s right to a fair trial and, specifically, his right to an impartial jury, occurs when an attorney makes a publicized, out-of-court statement about the defendant’s case. This is particularly true because attorneys occupy a special role as participants in the criminal justice system, and, as a result, the public may view their speech as authoritative and reliable. Attorneys involved in a particular case have greater access to information through discovery, the ability to converse privately with knowledgeable witnesses, and an enhanced understanding of the circumstances and issues. Their unique role and extensive access to information lends a degree of credibility to their speech that an ordinary citizen’s speech may not usually possess. Comments by prosecuting attorneys, in particular, have the inherent authority of the government and are more likely to influence the public. When such seemingly credible information reaches the ears or eyes of the public, the jury pool may become contaminated, greatly diminishing the court’s ability to assemble an impartial jury. The defendant’s right to a fair trial, thus, may be compromised. See Joan C. Bohl, Extrajudicial Attorney Speech and Pending Criminal Prosecutions: The Investigatory Commission Meets A.B.A. Model Rule 3.6, 44 Kan. L. Rev. 951, 973-74 (1996) (discussing how attorney speech differs from the speech of other individuals).

Limiting extrajudicial attorney speech to preserve a fair trial, however, can be accomplished only in a way that is consistent with the fundamental right to free expression under the First Amendment. In general, the First Amendment applies equally to an ordinary citizen and an attorney, as long as the attorney “plays no lawyerly role in the matter under comment.” See Charles W. Wolfram, Modern Legal Ethics at 632 (1986). On the other hand, when the attorney has some professional relationship to a matter, the attorney’s freedom to speak about it is not as broad. For instance, inside the courtroom, the rules of evidence and principles of relevance place rigid restrictions upon what an attorney may say, and when and how he or she may speak. Even outside the courtroom, the speech of a lawyer may be curtailed to an extent greater than an ordinary citizen’s. In the arena of attorney advertising, the Supreme Court has upheld a state’s thirty-day waiting period for solicitation letters by plaintiffs’ personal injury lawyers, see Florida Bar v. Went For It, Inc., 515 U.S. 618, 115 S. Ct. 2371, 132 L. Ed. 2d 541 (1995), and a state’s ban on in-person attorney solicitations, Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 98 S. Ct. 1912, 56 L. Ed.2d 444 (1978).

In 1908, the American Bar Association first attempted to control the ill effects of attorney-generated trial publicity through the development of professional standards entitled “Canons of Professional Ethics” (hereinafter the “ABA Canons”). Many states adopted the ABA Canons, including Canon 20, which “[g]enerally . . . condemned” newspaper publications “by a lawyer” regarding a pending case because such publications “may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice.”[15] See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1066, 111 S. Ct. 2720, 2740, 115 L. Ed. 2d 888, 918 (1991); Alberto Bernabe-Riefkohl, Silence is Golden: The New Illinois Rules on Attorney Extrajudicial Speech, 33 Loy. U. Chi. L. J. 323, 331 (2002) (hereinafter Bernabe-Riefkohl). The Maryland State Bar Association formally adopted the ABA Cannons in 1922. Canons of Ethics, Adopted by the Maryland State Bar Association, Annual Session 1922 at 1.

Despite the widespread adoption of the ABA Canons, trial publicity continued to affect defendants’ Sixth Amendment rights and, consequently, gained the attention of the Supreme Court during the 1950s and 1960s. The Court dealt with the detriments of excessive media involvement in cases by reversing a number of criminal convictions on the ground that excessive trial publicity deprived the defendants of due process. Estes v. Texas, 381 U.S. 532, 85 S. Ct.1628, 14 L. Ed. 2d 543 (1965) (holding that a defendant had been denied due process because a pre-trial hearing had been televised live and then rebroadcast, and because the court proceedings had been disrupted by the presence of the media); Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963) (reversing a conviction after the defendant had been denied a change of venue even though a local television station had broadcast his recorded confession three times, and 106,000 of the estimated 150,000-person community viewed the broadcast); Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961) (reversing a conviction where pre-trial publicity distributed in the vicinity of the trial included, inter alia, media accounts of the defendant’s juvenile record, the confessions to several murders, and previous court-martial proceedings); Marshall v. United States, 360 U.S. 310, 79 S. Ct. 1171, 3 L. Ed. 2d 1250 (1959) (reversing a conviction because seven of twelve jurors had been exposed to news accounts of evidence that was not admitted at trial).

The leading case during this era, which identified the need for trial publicity reform and shaped the American Bar Association’s (hereinafter “ABA”) remedial measures, was Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). There, the Court, on due process grounds, reversed the murder conviction of Sam Sheppard, whose high-profile trial had been preceded and pervaded by a media frenzy. Id at 363, 86 S. Ct. at 1522-23, 16 L. Ed. 2d at 621. Newspapers had documented Sheppard’s alleged refusal to cooperate with investigating officials and had published articles discussing incriminating evidence that was never admitted at trial. Id. at 338-41, 86 S. Ct. at 1509-11, 16 L. Ed. 2d at 606-08. During trial, members of the media frequently moved in and out of the courtroom, causing so much noise and confusion that it became difficult to hear lawyers and witnesses. Id. at 344, 86 S. Ct. at 1513, 16 L. Ed. 2d at 610. Furthermore, reporters had crowded the defense table at trial, making it very difficult for Sheppard to have private discussions with his counsel. Id. Despite the chaotic conditions, the trial judge refused to allow a change of venue and failed to take steps to control the adverse effects of the publicity. Id. at 354 n.9, 358-59, 86 S. Ct. at 1518 n.9, 1520, 16 L. Ed. at 615 n.9, 618.

The Supreme Court admonished the trial court in Sheppard for its failure to control the extrajudicial publicity:

The fact that many of the prejudicial news items can be traced to the prosecution, as well as the defense, aggravates the judge’s failure to take any action. Effective control of these sources – concededly within the court’s power – might well have prevented the divulgence of inaccurate information, rumors, and accusations that made up much of the inflammatory publicity . . . .

Id. at 361, 86 S. Ct. at 1521, 16 L. Ed. 2d at 619. The Court suggested how the trial judge could have minimized the prejudicial publicity, including proscribing extrajudicial statements by lawyers and other trial participants, requesting local officials to implement regulations with respect to the dissemination of trial information, and warning news media about the impropriety of publicizing material not introduced at the proceeding. Id. at 361-62, 86 S. Ct. at 1521-22, 16 L. Ed. 2d at 619-20. Emphasizing the prejudicial effect of news media on fair trials, the Court iterated:

Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. . . . [W]here there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue until the threat abates, or transfer it to another county not so permeated with publicity.

Id. at 362-63, 86 S. Ct. at 1522, 16 L. Ed. at 620. Moreover, the Court recognized that repeatedly reversing convictions would not suffice as a long-term remedy for the harm of trial publicity. The Court recommended an alternative solution:

But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but it is highly censurable and worthy of disciplinary measures.

Id. at 363, 86 S. Ct. at 1522, 16 L. Ed. 2d at 620.

In response to Sheppard and as a culmination of four years of meetings by a committee appointed by the ABA to develop standards to regulate the criminal justice system, the ABA in 1968 introduced Standards Relating to Fair Trial and Fair Press (hereinafter the “ABA Standards”). ABA Standards for Criminal Justice Fair Trial and Free Press ix (3rd ed. 1991). ABA Standard 1-1, which merely set aspirational goals for lawyers, stated that it was a “duty” of a lawyer to prevent the “release” of information for “dissemination” that is reasonably likely to interfere with a fair trial.[16] In addition, the ABA included a disciplinary rule related to trial publicity in its newly proposed Model Code of Professional Responsibility of 1969 (hereinafter “ABA Model Code of 1969"). Bernabe-Riefkohl at 337. Disciplinary Rule 7-107 of the ABA Model Code of 1969 established a detailed set of mandatory guidelines to be used by lawyers considering the propriety of extrajudicial statements. Id. The guidance of Rule 7-107 differed depending on the stage of the case and the nature of the proceeding, but it generally banned all extrajudicial statements that had a “reasonable likelihood” of interfering with a trial or prejudicing the administration of justice. In 1970, Maryland adopted the ABA Model Code of 1969 verbatim and in its entirety.

In 1983, the ABA again proposed a new model code in an effort to address concerns that the “reasonable likelihood” standard of ABA Standard 1-1 and Disciplinary Rule 7-107 might not meet the requirements of the First Amendment. See Chi. Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975), cert. denied sub nom., Cunningham v. Chi. Council of Lawyers, 427 U.S. 912, 96 S. Ct. 3201, 49 L. Ed. 2d 1204 (1976) (holding that a local criminal rule nearly identical to ABA Standard 1-1 and similar to Disciplinary Rule 7-107 violated the First Amendment as a vague and overbroad restriction on speech). Rule 3.6 of the Model Rules of Professional Conduct (hereinafter the “ABA Model Rules”) attempted to regulate trial publicity in a way that constitutionally balanced the lawyers’ right to free expression and an accused’s right to a fair trial.[17] MRPC 3.6, which first appeared in the Maryland Rules in 1986 and presently governs trial publicity in Maryland, is identical to this initial version of ABA Model Rule 3.6.

2. The Structure and Operation of MRPC 3.6

MRPC 3.6 has three subsections, which all operate together to give the rule its full meaning. Subsection (a) announces a general prohibition against lawyers making extrajudicial statements that “the lawyer knows or reasonably should know . . . will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” This prohibition applies, however, only to those statements that a reasonable person “would expect to be disseminated by means of public communication.”

Subsection (b) provides examples of the types of extrajudicial statements that would have “a substantial likelihood of materially prejudicing an adjudicative proceeding.” Under subsection (b), statements are prohibited that “ordinarily [are] likely” to include references to criminal matters that relate to, among other things, the criminal record of a party, the possibility of a plea of guilty, the existence or contents of any confession, admission, or statement by a defendant, or any opinion as to the guilt or innocence of a defendant.

Subsection (c) states, however, that circumstances exist where an attorney, without risking discipline, may make extrajudicial statements that fall under subsections (a) and (b). The provisions under subsection (c) are known as “safe harbors.” See Gentile, 501 U.S. at 1033, 111 S. Ct. at 2723, 115 L. Ed. 2d at 897 (describing the provisions of Nevada Supreme Court Rule 177(3), which are substantively identical to MRPC 3.6(c), as “safe harbors”). For example, an attorney may disclose, through extrajudicial statements and “without elaboration,” “the scheduling or result of any step in litigation,” even if that information, in some way, would have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” MRPC 3.6 (c)(4). Another such “safe harbor” permits attorneys to comment outside the courtroom and without elaboration on “information contained in a public record.” MRPC 3.6(c)(2).

3. Gansler’s Extrajudicial Statements Applied to MRPC 3.6

In the case before us, Bar Counsel argues that Gansler violated MRPC 3.6 by making extrajudicial statements related to the Cook, Lucas, and Perry cases. Gansler asserts, however, that his statements in these cases fall under the “public record” exception under the safe harbor provisions of MRPC 3.6(c). In addition, Gansler claims that the safe harbor provisions do not provide sufficient guidance as to what information is contained in the “public record,” so he was incapable of determining which statements actually would constitute violations.

The issues in this case are similar to those discussed by the Supreme Court in Gentile. In a fractured opinion, the Court held that Nevada Supreme Court Rule 177, a rule substantively identical to MRPC 3.6, had been unconstitutionally applied to discipline a defense lawyer for making extrajudicial statements that professed his client’s innocence in a criminal case. Id. at 1033, 111 S. Ct. at 2723, 115 L. Ed. at 897. Chief Justice Rehnquist authored the portion of the majority opinion analyzing the “substantial likelihood of material prejudice” standard of Rule 177, and Justice Kennedy represented the majority of the Court in striking down Nevada’s application of Rule 177 as unconstitutionally vague.

Nevada’s rule, like Maryland’s, prohibited an attorney from making extrajudicial statements that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” Gentile, the Nevada attorney challenging the rule, argued that this standard infringed upon an attorney’s right to free speech as guaranteed by the First Amendment to the United States Constitution. The State Bar of Nevada, arguing in favor of the standard, emphasized the State’s interest in maintaining fair trials that are decided in the courtroom and not through the use of “the meeting-hall, the radio, and the newspaper.” Id. at 1070, 111 S. Ct. at 2742, 115 L. Ed. 2d at 920 (quoting Bridges v. California, 314 U.S. 252, 271, 62 S. Ct. 190, 197, 86 L. Ed. 192, 208 (1941)).

In analyzing the parties’ arguments, the Court acknowledged that the First Amendment permitted States to regulate attorney speech more stringently than the speech of an ordinary citizen. Id. at 1071, 111 S. Ct. at 2743, 115 L. Ed. 2d at 921. The Chief Justice explained the State’s particular interest in restricting speech of a lawyer involved in a pending case:

Lawyers representing clients in pending cases are key participants in the criminal justice system, and the State may demand some adherence to the precepts of that system in regulating their speech as well as their conduct. As noted by Justice Brennan in his concurring opinion in Nebraska Press, which was joined by Justices Stewart and Marshall, “as officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice.” Because lawyers have special access to information through discovery and client communications, their extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers’ statements are likely to be received as especially authoritative.

Id. at 1074, 111 S. Ct. at 2744-45, 115 L. Ed. 2d at 923 (citation omitted). The Court concluded that the “substantial likelihood of material prejudice standard constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State’s interest in fair trials.” Id. at 1075, 111 S. Ct. at 2745, 115 L. Ed. 2d at 923 (internal quotations omitted).

The Court also subjected the “substantial likelihood” standard under Rule 177 to traditional First Amendment scrutiny, requiring that content-based speech regulation be necessary to achieve a legitimate state interest. Id. The Court stated:

The “substantial likelihood” test embodied in Rule 177 is constitutional under this analysis, for it is designed to protect the integrity and fairness of a State’s judicial system, and it imposes only narrow and necessary limitations on lawyers’ speech. The limitations are aimed at two principal evils: (1) comments that are likely to influence the actual outcome of the trial, and (2) comments that are likely to prejudice the jury venire, even if an untainted panel can ultimately be found. Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by “impartial” jurors, and an outcome affected by extrajudicial statements would violate that fundamental right. Even if a fair trial can ultimately be ensured through voir dire, change of venue, or some other device, these measures entail serious costs to the system. Extensive voir dire may not be able to filter out all of the effects of pretrial publicity, and with increasingly widespread coverage of criminal trials, a change of venue may not suffice to undo the effects of statements such as those made by [Gentile]. The State has a substantial interest in preventing officers of the court, such as lawyers, form imposing such costs on the judicial system and on the litigants.

Id. at 1075, 111 S. Ct. at 2745, 115 L. Ed. 2d at 923-24 (citations omitted). The Court concluded that the “substantial likelihood” standard was narrowly tailored to protect these State interests. Id. at 1076, 111 S. Ct. at 2745, 115 L. Ed. 2d at 924. This was so because the restraint on attorney speech was limited – “it applies only to speech that is substantially likely to have a materially prejudicial effect; it is neutral as to points of view, applying equally to all attorneys participating in a pending case; and it merely postpones the attorneys’ comments until after trial.” Id.

In addition to upholding the “substantial likelihood” standard on its face, the Gentile Court also considered the constitutionality of Nevada’s application of Rule 177. The Nevada Supreme Court had imposed a sanction against Gentile for making extrajudicial statements labeling the alleged victims in the criminal case as “drug dealers” and “money launderers,” blaming the alleged crime on the police, calling into question the police’s motives for levying the criminal charges against his client, and proclaiming the innocence of his client. Id. at 1078-79, 111 S. Ct. at 2747, 115 L. Ed. at 925-26. Gentile had testified at his disciplinary hearing that he believed his statements were protected by Rule 177(3)(a), one of Rule 177's “safe harbors,” which allowed an attorney to comment outside of the courtroom and “without elaboration” on the “general nature of the . . . defense,” even if the lawyer “knows or reasonably should know that [the statement] will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” Id. at 1048-49, 111 S. Ct. at 2731, 114 L. Ed. 2d at 907.

A majority of the Justices, led by Justice Kennedy, decided that, “[a]s interpreted by the Nevada Supreme Court, [Rule 177] is void for vagueness . . . for its safe harbor provision, Rule 177(3), misled [Gentile] into thinking that he could give his press conference without fear of discipline.” The Court described its reasoning:

Given [the Rule’s] grammatical structure, and absent any clarifying interpretation by the state court, the Rule fails to provide “fair notice to those to whom [it] is directed.” Grayned v. City of Rockford, 408 U.S. 104, 112, 92 S. Ct. 2294, 2301, 33 L. Ed. 2d 222, 230 (1972). A lawyer seeking to avail himself of Rule 177(3)’s protection must guess at its contours. The right to explain the “general” nature of the defense without “elaboration” provides insufficient guidance because “general” and “elaboration” are both classic terms of degree. In the context before us, these terms have no settled usage or tradition of interpretation in law. The lawyer has no principle for determining when his remarks pass from the safe harbor of the general into the forbidden sea of the elaborated.

Id. at 1048-49, 111 S. Ct. at 2731, 114 L. Ed. 2d at 906-07. The Court further declared that, without providing sufficiently precise guidance, Rule 177 “creates a trap” even for the lawyers who study the rule and make a conscious effort to comply with it. Id. at 1051, 111 S. Ct. at 2732, 114 L. Ed. 2d at 908. Finally, Rule 177(3)(a) was “so imprecise” that, in the Court’s view, it created an “impermissible risk of discriminatory enforcement.”

The case before us involves the application of a different safe harbor, MRPC 3.6(c)(2), which refers to “information contained in a public record.” This provision suffers from constitutional infirmities similar to those of Nevada’s Rule 177(3)(a).[18] The text of MRPC 3.6(c)(2) provides that an attorney may make extrajudicial statements “without elaboration” concerning “information contained in a public record.” These protections lack a clarifying interpretation by this Court, and the term “elaboration,” a classic term of degree, has no settled usage or tradition of interpretation in law.

The phrase “information contained in a public record” also does not provide sufficient guidance for determining which statements were protected under MRPC 3.6(c)(2). As evidenced by the widely disparate meanings for “public record” that the parties’ experts in this case have advanced, the term, standing alone, can be subject to multiple interpretations even by lawyers well educated on this specific principle of professional responsibility. Gansler and Professor Lerman define “information in a public record” broadly as “anything that has been filed in court . . . and anything that has been otherwise made public.” Bar Counsel and Professor Dash offer a narrower interpretation, suggesting that “the public record exception applies to that formal information in the public domain that exists prior to, or separate from, the investigation and prosecution of the subject criminal matter.” (emphasis added). Bar Counsel, however, has provided no authority to support its interpretation and, in fact, concedes that the term “does not appear to have been the subject of judicial scrutiny and little guidance is afforded . . . .”

“Public record” has been defined in other contexts, as the hearing judge recognized in her report, but those definitions also fail to provide uniform guidance. Maryland Code, § 10-611(g)(1) of the State Government Article (1984, 1999 Repl. Vol.), sets forth one definition for purposes of the Public Information Act:

(g) Public Record. – (1) “Public record” means the original or any copy of any documentary material that:

(i) is made by a unit or instrumentality of the State government or of a political subdivision or received by the unit or instrumentality in connection with the transaction of public business; and

(ii) is in any form, including:

1. a card;

2. a computerized record;

3. correspondence;

4. a drawing;

5. film or microfilm;

6. a form;

7. a map;

8. a photograph or photostat;

9. a recording; or

10. a tape.

The Maryland Code provides a different definition of “public record” in Section 8-606(a)(3) of the Criminal Law Article. That section states:

(3) “Public Record” includes an official book, paper, or record, kept on a manual or automated basis, that is created, received, or used by a unit of:

(i) the State;

(ii) a political subdivision of the State; or

(iii) a multicounty agency.

The Maryland Rules describe “public record” in still a different way. Maryland Rule 5-803(b)(8)(A) defines “public records and reports” for purposes of the “public records” exception to the hearsay rule, as including:

a memorandum, report, record, statement, or data compilation made by a public agency setting forth (i) the activities of the agency; (ii) masters observed pursuant to a duty imposed by law, as to which matters there was a duty to report; or (iii) in civil actions and when offered against the State in criminal actions, factual finding resulting from an investigation made pursuant to authority granted by law.

Another source, Black’s Law Dictionary, defines “public record” as “[a] record that a governmental unit is required by law to keep, such as land deeds kept at a county courthouse.” Black’s Law Dictionary 1279 (7th ed. 1999). These characterizations of “public record” contemplate only information that has been created or distributed by a government entity.

Not all sources, however, consider “public record” to be a reference to materials produced by any government entity. Although Canon 20 of the 1908 ABA Canons of Ethics did not use the phrase “information contained in a public record,” its terms do furnish some instruction as to the meaning of the phrase. Canon 20 prohibited “ex parte reference” to the facts of a case “beyond quotation from the records and papers on file in the court.” (emphasis added). Similarly, Local Rule 204 of the United States District Court for the District of Maryland prohibits an attorney from making certain extrajudicial statements after the arrest of an accused, except that the lawyer may quote from or refer to without comment to “public Court records” in the case. Thus, according to some sources, “public records” are limited to the exact information contained in documents on file with the court.

Because there is no settled definition of “information contained in a public record” we agree with Gansler that MRPC 3.6(c)(2) does not provide adequate guidance for determining which extrajudicial statements would qualify under the safe harbor. For this reason, we construe the phrase in its broadest form as applied to Gansler in this case and to any other extrajudicial statements made prior to the filing of this Opinion. In this case, we consider “information in a public record” to include anything in the public domain, including public court documents, media reports, and comments made by police officers.

Under this broad interpretation, it is clear that a number of Gansler’s extrajudicial statements do not warrant discipline, as the hearing judge determined. Gansler did not violate MRPC 3.6 by commenting on the sneaker print matches in Cook’s case because, shortly before Gansler’s extrajudicial comments, a television reporter had broadcast an account of that evidence nearly mirroring Gansler’s version. Additionally, in the Lucas case, Gansler made statements to the media about a shoe print at the crime scene that matched shoes Lucas had been observed wearing. This information was already public as recorded in the statement of charges filed by the police the day before. Also contained in the statement of charges was an account of Lucas’s admission to police that he broke into the church rectory and murdered Monsignor Wells. Therefore, the next day, when Gansler relayed information about the admission to the media, he revealed “information contained in a public record.” We overrule Bar Counsel exceptions as they relate to Gansler’s extrajudicial statements about physical evidence in the Cook and Lucas cases as well as the confession in the Lucas case.

Gansler argues that the “public record” safe harbor also should protect his reference to Lucas’s history of convictions. MRPC 3.6(b)(1) informs lawyers that extrajudicial statements relating to the “criminal record of a party” are ordinarily likely to be intolerably prejudicial. Nevertheless, during the June 18, 2003 press conference announcing the arrest of Lucas, Gansler mentioned that Lucas “has a criminal record which includes residential burglaries.” To support his assertion that this statement should be protected by the “public record” safe harbor, Gansler points to Deputy State’s Attorney Winfree’s testimony, characterizing Lucas’s prior arrest and conviction record as “part of the public record.”

Based on this testimony, we hold that Gansler’s reference to Lucas’s criminal record falls under our broad definition of “information in a public record.” We reach this result because we have inferred from Deputy State’s Attorney Winfree’s testimony that she was referring to publicly accessible court records in Maryland, either case files or docket sheets, which indicate that an individual has been convicted of a crime. Maryland law does not bar an ordinary citizen from combing these court documents to learn information about someone’s criminal history. For this reason, Lucas’s history of convictions could have existed in the public domain before Gansler spoke of it. Under the circumstances of this case, the extrajudicial reference to Lucas’s convictions qualifies for the protection of the “public record” safe harbor, as we have broadly defined it for this Opinion. Because of the strong prejudicial impact of the public disclosure of criminal record information, future respondents will have the burden of establishing that such information was contained in a bona fide public court record accessible to the general public.[19]

Additionally, lawyers who make extrajudicial statements in the future will not find shelter in the broad definition of MRPC (c)(2) that we apply here. Public policy mandates a more limited definition of “information in a public record.” We believe that, to best “protect[] the right to a fair trial and safeguard[] the right of free expression,” the phrase “information in a public record” should refer only to public government records – the records and papers on file with a government entity to which an ordinary citizen would have lawful access.

To receive the protection of the “public record” safe harbor, the lawyer must not provide information beyond quotations from or references to public government records. The definition we establish in this case prevents attorneys from side-stepping the rule by directing or encouraging individuals not bound by the MRPC to publicize information so that attorneys can speak freely about it. Furthermore, by strictly limiting what is considered a public record, this definition enables all of the components of MRPC 3.6 to filter objectionable publicity, preventing the “public record” exception from swallowing the general rule of restricting prejudicial speech.

In any event, no matter whether one defines “information in a public record” broadly to include everything in the public domain or narrowly, Gansler violated the MRPC 3.6 by making several extrajudicial statements at issue in this case. Initially, we must point out that Gansler has not challenged that his comments qualify, under MRPC 3.6(a), as statements that “a reasonable person would expect to be disseminated by means of public communication.” The only contested issues in this case concern whether Gansler knew or should have known that his statements would have a substantial likelihood of materially prejudicing an adjudicative proceeding and whether the statements are protected under the safe harbor provisions of MRPC 3.6(c). As we discuss in detail below, Gansler did violate MRPC 3.6 by commenting on Cook’s confession, by discussing the plea offer to Perry, and by providing his opinion as to the guilt of Cook and Lucas.

First, Gansler violated MRPC 3.6 by discussing Cook’s confession to the Stottsmeister murder. MRPC 3.6(b)(2) provides that a statement relating to the “existence or contents of any confession, admission, or statement given by a defendant” is “ordinarily likely” to have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” Notwithstanding the cautionary language of the rule and prior to the filing of murder charges, Gansler publicly stated that police were able to obtain a confession from Cook. Apparently seeking shelter again under the “public record” safe harbor, Gansler points out that his reference to “incredible details” mirrored the information and even the language of the charging document. This observation fails to acknowledge that officials did not file the statement of charges against Cook until after the press conference. The “public record” safe harbor, whether construed narrowly or broadly, could not apply possibly to any statement that introduced information to the public for the first time. Gansler should have known that these statements, by themselves, would prejudice Cook in the public’s eye.

Not only did Gansler announce the existence of Cook’s confession, but he also furnished specific information of the surrounding circumstances, including that Cook provided “incredible details that only the murderer would have known.” Gansler magnified the prejudicial effect of his statements by bolstering the believability of the confession. He stated that, before Cook traveled to the crime scene and “went over in detail by detail every step of” the murder, the police had provided him with a restful night’s sleep. If we found no fault with such public disclosures, we would be allowing attorneys, in effect, to evade the operation of the exclusionary rule by taking advantage of the probative value of the confession without regard to its constitutionality or admissibility as evidence. That is, Gansler made Cook’s confession public even though its contents might never reach the jury as a result of a constitutional challenge. His actions, in this regard, run afoul of our principles of criminal justice, as Chief Justice Rehnquist illustrated:

The outcome of a criminal trial is to be decided by impartial jurors, who know as little as possible of the case, based on material admitted into evidence before them in a court proceeding. Extrajudicial comments on, or discussion of, evidence which might never be admitted at trial and ex parte statements by counsel giving their version of the facts obviously threaten to undermine this basic tenet.

Gentile, 501 U.S. at 1070, 111 S. Ct. at 2742, 115 L. Ed. 2d at 920. Accordingly, with respect to Gansler’s remarks on the Cook confession, we sustain Bar Counsel’s exception because Gansler knew or should have known that his announcement would have a substantial likelihood of causing material prejudice. [20]

Gansler also committed a violation of MRPC 3.6, as Judge Stevenson concluded, by commenting extrajudicially on the matter of Perry’s plea bargain. MRPC 3.6(b)(2) states that a statement is “ordinarily likely” to have a substantial likelihood of materially prejudicing an adjudicative proceeding if the statement relates to “the possibility of a plea of guilty to the offense.” Gansler’s reported statement in April of 2000 disclosed, for the first time, his decision “to offer [Perry] a plea bargain.”

Gansler argues, though, that his comments to the Gazette about the plea offer should be covered by the “public record” safe harbor because the public already knew of his conversations with the victims’ family members, in which they were consulted about whether to retry Perry or plea bargain. The public’s general knowledge about plea bargains and how they normally play a part in every prosecution does not equate, however, to the public having actual knowledge that a plea bargain would be offered in this particular case. The decision to offer a plea bargain does not qualify as “information contained in a public record,” even under the broadest meaning of that phrase.

Besides announcing the plea offer, Gansler also discussed the impending deadline for Perry to accept that offer, all during a very public and controversial prosecution of a multiple murder suspect. Public comments such as these place greater pressure on the defendant to accept the plea offer. More importantly, the comments likely influenced potential jurors in Perry’s case by communicating that the lead prosecutor believed the defendant was guilty. See John Wesley Hall, Jr., Professional Responsibility of the Criminal Lawyer § 12.16 (2nd ed. 1996) (“Any . . . statement [regarding the possibility of a plea of guilty] is, of course, a direct reference to an opinion of the speaker as to guilt of the accused or as to the belief of the accused as to his own guilt. It is tantamount to publication of an opinion as to guilt.”). We, therefore, overrule Gansler’s exception to Judge Stevenson’s conclusion that the comments related to Perry’s plea offer violated MRPC 3.6.

MRPC 3.6(b)(4) specifically addresses attorney comments discussing “any opinion as to the guilt or innocence of a defendant.” Although several of Gansler’s extrajudicial statements fall under this category of restricted speech and were not covered by any safe harbor, the hearing judge determined that the evidence did not show that any “material prejudicial effect” stemmed from them. Gansler’s statements, indicating that “they” had apprehended the person who committed the crimes in the Cook and Lucas cases, came soon after the defendants had been arrested and well before the eve of trial. This, coupled with the fact that neither Lucas’s nor Cook’s attorneys claimed that Gansler’s statements caused prejudice, persuaded the hearing judge to conclude that Bar Counsel had not shown a substantial likelihood of material prejudice.

We disagree with the hearing judge’s conclusion that the evidence failed to show that Gansler knew or should have known that his statements of opinion would have a substantial likelihood of material prejudice. In considering the propriety of a statement under MRPC 3.6, we determine the likelihood that a particular statement will cause prejudice at the time the statement was made, not whether that statement, in hindsight, actually worked to the detriment of a defendant. Whether Cook or Lucas claimed at their trials to be prejudiced by Gansler’s statements, therefore, does not weigh in our analysis. Rather, we concentrate on the point in time when Gansler offered his public comments to determine the probability of prejudice.

According to the hearing judge, the point in time when Gansler made the extrajudicial statements minimized whatever prejudicial effect flowed from his remarks. As support for this conclusion, the hearing judge cited Part II of Justice Kennedy’s minority opinion in Gentile. Justice Kennedy suggested that statements made well before a defendant’s trial have less prejudicial impact than statements made closer to the empaneling of a jury. Gentile, 501 U.S. at 1044, 111 S. Ct. at 2729, 115 L. Ed. 2d at 904 (Kennedy, J., dissenting). Gentile had made his controversial statements six months prior to voir dire, enough time, according to Justice Kennedy, for the content of the message to fade from the public’s memory. Id. The timing of Gentile’s statement, however, was not the only factor that Justice Kennedy considered in determining that no prejudice had occurred in that case. He also analyzed the contents of Gentile’s message, which, Justice Kennedy stated, “lack any of the more obvious bases for a finding of prejudice.” Id. at 1046, 111 S. Ct. at 2730, 115 L. Ed. 2d at 905.

We agree with Gansler’s theory that the timing of an extrajudicial statement may affect its prejudicial effect, but we do not believe that the timing element in this case neutralizes the obvious prejudicial content of Gansler’s statements of opinion. Like in Gentile, the timing of Gansler’s statements came well before the beginnings of Cook’s and Lucas’s trials; however, Gansler’s proclamation that “they” had apprehended the persons who committed the crimes in the Cook and Lucas cases directly contravened the provisions of MRPC 3.6(b)(4) (opinion on guilt of innocence). The comments blatantly expressed Gansler’s opinion of the guilt of the defendants. In contrast to the lawyer in Gentile, who refused to comment on confessions and evidence from searches, see Gentile, 501 U.S. at 1046, 111 S. Ct. at 2730, 115 L. Ed. 2d at 905 (Kennedy J., dissenting), Gansler supported his opinions of guilt by pointing to specific circumstances, such as confessions and physical evidence, to make his views more reliable.

Gentile differs from the case before us for yet another reason: Gansler is a prosecutor, not a defense lawyer. Prosecutors play a unique role in our system of criminal justice. We recognized this recently in Walker v. State, 373 Md. 360, 394-95, 818 A.2d 1078, 1098 (2003), where Judge Harrell for the Court stated:

Prosecutors are held to even higher standards of conduct than other attorneys due to their unique role as both advocate and minister of justice. The special duty of the prosecutor to seek justice is said to exist because the State’s Attorney has broad discretion in determining whether to initiate criminal proceedings. Bracks v. Wells, 184 Md. 86, 90, 40 A.2d 319, 321 (1944). The office of prosecutor is therefore “not purely ministerial, but involves the exercise of learning and discretion,” and he or she “must exercise a sound discretion to distinguish between the guilty and the innocent.” Id. The responsibilities of the prosecutor encompass more than advocacy. The prosecutor’s duty is not merely to convict, but to seek justice. “His obligation is to protect not only the public interest but the innocent as well and to safeguard the rights guaranteed to all persons, including those who may be guilty.” Sinclair v. State, 27 Md. App. 207, 222-23, 340 A.2d 359, 369 (1975).

In addition to their special role as ministers of justice, prosecutors have limitations not experienced by criminal defense attorneys in that defense attorneys have the benefit of their client’s presumption of innocence. In other words, a criminal defense attorney may announce an opinion that his or her client is innocent with a lesser risk of causing prejudice because the law, itself, presumes the defendant’s innocence.

On the other hand, a prosecutor’s opinion of guilt is much more likely to create prejudice, given that his or her words carry the authority of the government and are especially persuasive in the public’s eye. See Scott M. Matheson, Jr., The Prosecutor, The Press, and Free Speech, 58 Fordham L. Rev. 865, 886 (1990) (“When the prosecutor speaks publicly about a pending case, he cannot separate his representational role from his speech, and he thereby involves the state in the extrajudicial comment.”). As lawyers, prosecutors are so distinct that some commentators have argued that the rules against extrajudicial statements should apply only to them. See, e.g., Freedman & Starwood, Prior Restraints on Freedom of Expression by Defendants and Defense Attorneys, 29 Stan. l. Rev. 607 (1977). Although we do not embrace this position, it nonetheless reinforces the notion that prosecutors, in particular, should be even more cautious to avoid making potentially prejudicial extrajudicial statements.[21] Because we hold that Gansler knew or should have known that his public opinions of Cook’s and Lucas’s guilt would have a substantial likelihood of material prejudice, we sustain Bar Counsel’s exception with respect to those statements.[22]

B. MRPC 3.1, 3.8(a), and 8.4(d)

Bar Counsel excepted to the hearing judge’s conclusion that Gansler did not violate MRPC 3.1, 3.8, and 8.4(d). The charges under these rules arose from two events: (1) Gansler’s unsuccessful prosecution in District Court of two juveniles based on charges that they called bomb threats to a Montgomery County High School, and (2) Gansler’s statements regarding his intention to prosecute “[j]uveniles who phone in bomb threats” even if “the case is not strong enough to warrant a conviction.” Bar Counsel argues that by prosecuting the two juveniles with minimal evidence, Gansler brought a frivolous claim in violation of MRPC 3.1 and prosecuted a charge not supported by probable cause in violation of MRPC 3.8(a). Furthermore, in Bar Counsel’s view, Gansler’s violated MRPC 8.4(d) because the statements about future bomb-threat prosecutions communicated to the public that “someone acquitted of a crime was guilty nonetheless and warranted to be prosecuted . . . .” Gansler responds that he prosecuted the juveniles because he believed that they had committed a crime beyond a reasonable doubt. He contends that the judge’s decision to acquit the juveniles represented only that she disagreed with his evaluation of the evidence, not that the prosecution lacked probable cause.

MRPC 3.1 prohibits attorneys from bringing frivolous suits, and MRPC 3.8(a) prohibits prosecutors from knowingly prosecuting a charge that is not supported by probable cause. Expressly addressing only the comments Gansler made, the hearing judge concluded that Bar Counsel had not presented clear and convincing evidence that Gansler “intended to prosecute in violation of [MRPC] 3.1 and [MRPC] 3.8(a).” Although she did not specifically address the issue in her Report and Recommendations, the hearing judge, by finding no violation under MRPC 3.1 and MRPC 3.8(a), determined implicitly that insufficient evidence supported Bar Counsel’s charge concerning the actual prosecution of the juveniles. Likewise, the hearing judge also implicitly concluded that the evidence did not support a violation of MRPC 8.4(d).

We agree with Judge Stevenson that, based on the evidence presented, Gansler did not commit a violation of MRPC 3.1, MRPC 3.8(a), or MRPC 8.4(d), when he commented on future prosecutions of juveniles who phone bomb threats. Gansler testified and responded to Request for Admissions that he never intended to prosecute any charges in bad faith. Rather, according to Gansler’s testimony, by making the comments about prosecuting bomb threats, he intended to communicate that his office must try “hard cases.” The hearing judge found this testimony credible, a determination that we readily accept.

Gansler’s actual prosecution of the youths also did not amount to a violation of MRPC 3.1, as Bar Counsel contends. Evidence before the hearing judge related to this charge came solely from a newspaper article covering the juveniles’ case. The article reported that the District Court judge acquitted the juveniles, stating, “I have no idea who did this” and “I have no evidence.” As further reported by the article, the State’s evidence of telephone calls could not link the juveniles to the bomb threat. Without more, the news article does not demonstrate by clear and convincing evidence that Gansler violated MRPC 3.1. Consequently, we overrule Bar Counsel’s exceptions to Judge Stevenson’s ruling that Gansler’s prosecution of the juveniles as well as his reported comments about future prosecutions do not violate MRPC 3.1, MRPC 3.8, or MRPC 8.4(d).

IV. Sanction

We must determine the appropriate sanction for Gansler’s violations of MRPC 3.6 and MRPC 8.4(a). This case marks the first time in Maryland that we have disciplined an attorney for a violation of MRPC 3.6. We remain guided, however, by the well established principles determining the sanction for an attorney who failed to meet our State’s standards of professionalism. In sanctioning an attorney, we seek “to protect the public, to deter other lawyers from engaging in violations of the Maryland Rules of Professional Conduct, and to maintain the integrity of the legal profession.” Attorney Grievance Comm’n v. Awuah, 374 Md. 505, 526, 823 A.2d 651, 663 (2003) (quoting Attorney Grievance Comm’n v. Webster, 348 Md. 662, 678, 705 A.2d 1135, 1143 (1998)). To protect the public adequately, we impose a sanction that is “commensurate with the nature and gravity of the violations and the intent with which they were committed.” Id. (quoting Attorney Grievance Comm’n v. Awuah, 346 Md. 420, 435, 697 A.2d 446, 454 (1997)). Our sanction, therefore, “depends upon the facts and circumstances of each particular case, including consideration of any mitigating factors.” Id. (citing Attorney Grievance Comm’n v. Atkinson, 357 Md. 646, 656, 745 A.2d 1086, 1092 (2000); Attorney Grievance Comm’n v. Gavin, 350 Md. 176, 197-98, 711 A.2d 193, 204 (1998)).

Bar Counsel recommends that we issue a reprimand. On numerous occasions, Gansler spoke outside of court about matters that had a substantial likelihood of depriving several criminal defendants of fair trials. Gansler presented no evidence of mitigating circumstances. The appropriate sanction in this case is one “which demonstrates to members of this legal profession the type of conduct that will not be tolerated” and which maintains the integrity of the Bar by preventing Gansler’s transgressions “from bringing its image into disrepute.” Attorney Grievance Comm’n v. Culver, 371 Md. 265, 277, 808 A.2d 1251, 1258 (2002) (quoting Attorney Grievance Comm’n v. Garfield, 369 Md. 85, 98, 797 A.2d 757, 764 (2002)). A reported reprimand satisfactorily communicates to Gansler and other members of the Bar that improper extrajudicial statements dangerously jeopardize the foundational principles of our system of criminal justice. Accordingly, Gansler is hereby reprimanded.


[1] Maryland Rule 16-751(a) provides:

(a) Commencement of disciplinary or remedial action. Upon approval of the [Attorney Grievance] Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals.

[2] MRPC 3.1 states:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer may nevertheless so defend the proceeding as to require that every element of the moving party’s case be established.

[3] MRPC 3.6 states:

(a) A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

(b) A statement referred to in paragraph (a) ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates to:

(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;

(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement;

(3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;

(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;

(5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial; or

(6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

(c) Notwithstanding paragraph (a) and (b) (1-5), a lawyer involved in the investigation or litigation of a matter may state without elaboration:

(1) the general nature of the claim or defense;

(2) the information contained in a public record;

(3) that an investigation of the matter is in progress, including the general scope of the investigation, the offense or claim or defense involved and, except when prohibited by law, the identity of the persons involved;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

(7) in a criminal case:

(i) the identity, residence, occupation and family status of the accused;

(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;

(iii) the fact, time and place of arrest; and

(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

[4] MRPC 3.8 states:

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and

(e) 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.

[5] MRPC 8.2(a) states:

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

[6] MRPC 8.4 states in relevant part:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

* * *

(d) engage in conduct that is prejudicial to the administration of justice . . . .

[7] Maryland Rule 16-752(a) states:

(a) Order. Upon the filing of a Petition for Disciplinary or Remedial Action, the Court of Appeals may enter an order designating a judge of any circuit court to hear the action and the clerk responsible for maintaining the record. The order of designation shall require the judge, after consultation with Bar Counsel and the attorney, to enter a scheduling order defining the extent of discovery and setting dates for the completion of discovery, filing of motions, and hearing.

Maryland Rule 16-757(c) states in pertinent part:

(c) Findings and conclusions. The judge shall prepare and file or dictate into the record a statement of the judge’s findings of fact, including findings as to any evidence regarding remedial action, and conclusions of law. . . .

[8] The facts we present in this section are based on the findings of fact and evidentiary items relied upon by the hearing judge in her Report and Recommendations.

[9] Judge Stevenson noted, specifically, that the statement of charges in Cook’s case had not been filed at the time of the June 5, 2001 press conference.

[10] In the proceedings before the hearing judge, Bar Counsel presented evidence of numerous other extrajudicial statements by Gansler that Bar Counsel considered objectionable. The hearing judge’s Report and Recommendations do not refer to those other statements, and Bar Counsel has not raised any exceptions based on those statements. Because Bar Counsel failed to take exceptions to the hearing judge’s factual findings, we consider only those statements discussed by Judge Stevenson to be at issue. See Maryland Rule 16-759(2)(B) (“The [Court of Appeals] may confine its review to the findings of fact challenged by [a party’s] exceptions.”).

[11] The hearing judge stated that she reached this conclusion “with reluctance” and that she was “troubled by such statements made by an elected State’s Attorney prior to trial.”

[12] For extended discussions of the origin and historical development of the modern rules governing trial publicity, see Charles W. Wolfram, Modern Legal Ethics at 633-34 (1986); Alberto Bernabe-Riefkohl, Silence is Golden: The New Illinois Rules on Attorney Extrajudicial Speech, 33 Loy. U. Chi. L. J. 323 (2002).

[13] U.S. Const. amend. VI provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

[14] Article 21 of the Maryland Declaration of Rights provides:

That in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the Indictment, or charge, in due time (if required) to prepare for his defence; to be allowed counsel; to be confronted with the witnesses against him; to have process for his witnesses; to examine the witnesses for and against him on oath; and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.

[15] The full text of Canon 20 stated:

Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice. Generally they are to be condemned. If the extreme circumstances of a particular case justify a statement to the public, it is unprofessional to make it anonymously. An ex parte reference to the facts should not go beyond quotation form the records and papers on file in the court; but even in extreme cases it is better to avoid any ex parte statement.

[16] ABA Standard 1-1 provided:

It is the duty of the lawyer not to release or authorize the release of information or opinion for dissemination by any means of public communication in connection with pending or imminent criminal litigation with which he is associated, if there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.

ABA Advisory Comm. of Fair Trial and Free Press, Standards Relating to Fair Trial and Free Press, Standard 1-1 (1969).

[17] The first paragraph of the Comment to ABA Rule 3.6 describes that delicate balancing act:

It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.

[18] Following the Supreme Court’s decision in Gentile, the American Bar Association amended ABA Rule 3.6. The amendments deleted “without elaboration” and “general” from the text of the Rule to address the Court’s concern over those terms. See A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982-1998, at 196 (1999); Annotated Model Rules of Professional Conduct, at 357 (1999). MRPC 3.6, however, has not changed since its first promulgation in 1986.

[19] Not all criminal record information would qualify as “information in a public record,” even if the term is defined broadly. Some information relating to an individual’s criminal history, such as that collected by the Criminal Justice Information System (hereinafter “CJIS”), may not appear in a case file or docket sheet or otherwise have reached the public domain. The CJIS Central Repository compiles and maintains data of an individual’s history of arrests, convictions, and other adverse criminal actions, but CJIS strictly limits access to its data. See Maryland Code, § 10-213 of the Criminal Procedure Article (2001); COMAR - (2003). An ordinary citizen may not obtain criminal history information from CJIS without demonstrating convincingly that the purpose of requesting the data meets one of CJIS’s narrow exceptions (e.g., an employer who is seeking background information on a prospective employee whose job could “jeopardize the life and safety of individuals”). COMAR As a result, the CJIS report is not public.

This non-public criminal history information collected by CJIS, of course, may overlap with information contained in publicly accessible case files and docket entries. If that should occur, the overlapping criminal record information would be considered part of the public government records, and statements referring to that particular information would receive protection under the “public record” safe harbor. The converse is also true; if an extrajudicial statement refers to criminal history information obtainable only from a non-public source like CJIS, the “public record” safe harbor would not apply.

[20] We observe that, prior to Gansler’s comments at the Cook press conference, a television reporter noted that Cook had confessed and Captain Bernie Forsythe mentioned in his comments to the press that investigators had obtained a confession from Cook. The reporter and Captain Forsythe limited their comments to the existence of the confession and offered no additional information about it. Gansler’s statements, however, as we noted above, provided a great deal of specific information that had not been disclosed.

[21] We also observe that prosecutors, as public employees, may not speak publicly with the same broad freedom that ordinary citizens enjoy. See Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968); DiGrazia v. County Exec. of Montgomery County, 288 Md. 437, 418 A.2d 1191 (1980). This is so because, in the context of an employer and employee relationship, “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Pickering, 391 U.S. at 568, 88 S. Ct. at 1734, 20 L. Ed. 2d at 817. Our cases have acknowledged that public employees may be subjected to greater speech limitations by the State as a result of the State’s interests as an employer. Hawkins v. Dep’t. of Public Safety & Corr. Servs., 325 Md. 621, 602 A.2d 712 (1992); O’Leary v. Shipley, 313 Md. 189, 199, 545 A.2d 17, 22 (1988); De Bleeker v. Montgomery County, 292 Md. 498, 507, 438 A.2d 1348, 1353 (1982); DiGrazio, 288 Md. at 449, 418 A.2d at 1198.

[22] The hearing judge did not address the application of MRPC 8.4(a), which finds professional misconduct where a lawyer “violates or attempts to violate the Rules of Professional Conduct.” We have held that a violations of a MRPC 1.15 and MRPC 1.4(a) “necessarily” result in a violation of MRPC 8.4(a) as well. Attorney Grievance Comm’n v. Gallagher, 371 Md. 673, 710-11, 810 A.2d 996, 1018 (2002). Likewise, we conclude in this case that Gansler’s violation of MRPC 3.6 also constituted a violation of MRPC 8.4(a).