The right to a jury trial, the presumption of innocence, the social compact between the individual and the State—these are among the weighty interests in our criminal justice system that can be bolstered or undermined through attorney pretrial publicity. The procedural protections that exist in the Constitution for criminal justice are neither technicalities nor formalities. Rather, they are indicative of the inestimable value of life and liberty, and they act as a “bulwark between the State and the accused”—protecting the personal liberties of the individual from state overreaching and forfeiture.
The traditional “compromise” of these interests is unnecessary to give the First Amendment rights of lawyers their proper scope. Unfortunately, the compromise of MRPC 3.6 and Gentile has failed to produce the fair and equal regime it aimed at creating. Instead, the compromise violates the speech rights of defense lawyers to protect their clients’ rights to a presumption of innocence, a fair plea, and a fair trial. The compromise also improperly creates false constitutional walls that have kept states from curbing their own representatives—prosecutors—from prejudicing the state’s criminal processes. Both of these failings work to one end: undermining the rights and constitutional processes necessary to protect the guilty and the innocent in the face of state power to forfeit life or liberty.