October 2009

David Gorcyca was the high profile Oakland County Prosecutor until January 2009, when he took a job in private practice. At that time of his departure from office, he told Crain’s Detroit Business that the strain of public life on his family was a factor in deciding not to seek a fourth term as the elected prosecutor. He came to office in 1996, after he defeated incumbent Richard Thompson. Thompson had been criticized for prosecuting Dr. Jack Kevorkian in two expensive and highly publicized trials during 1996, both of which ended in the defendant’s acquittal. According to a post-election story in the New York Time , after Gorcyca’s win over Thompson by a 12% margin, the young prosecutor stated, ''You'd have to say it was the paramount issue in the campaign…Nine out of 10 questions I was asked were along the lines of, 'Are you going to waste our taxpayer dollars on persecuting Kevorkian?' My answer is, No, we have a lot of higher crime-fighting priorities.''

Gorcyca himself became swept up in a highly publicized criminal trial during his tenure as County Prosecutor. After bringing criminal charges against both Marilyn Manson and Eminem, his office turned their attentions to a kindergarten teacher named James Norman Perry.[1] Perry was charged with sexually assaulting two young boys in a special education classroom at their Oak Park, Michigan elementary school. Gorcyca's office initially declined to charge Perry, citing a lack of evidence. Nevertheless, several months later, Perry was charged with the crimes and, after a highly publicized trial, a jury convicted the defendant of molesting the boys. Two months after the jury decision, the trial judge delayed sentencing to reconsider the verdict after three witnesses employed at the school, people who had never been interviewed by police, came forward to dispute the State's account of the events. While awaiting a ruling on a request for a new trial, Gorcyca referred to the defendant as a "freak" to a newspaper editor and as a "pedophile" to a radio interviewer. In both interviews, he discussed evidence that he described as "non-erotic pornography" that was discovered in the defendant's home, including the films The Lion King , Star Wars , and Harry Potter .   The trial judge had ruled such evidence inadmissible during the course of the first proceeding. Eventually, the judge ordered a new trial. Following the judge’s order, Gorcyca issued a press release mentioning that Perry had refused to take a polygraph test. Polygraph test results are not, however, admissible in Michigan courts. Gorcyca's office appealed the judge's ruling, but failed to convince an appellate tribunal to disturb the decision. Thirteen months after a new trial was ordered, Perry's second trial began. That second trial resulted in a mistrial after the jury was deadlocked. Thereafter, formal disciplinary charges were filed against Gorcyca by the Michigan Grievance Administrator, alleging that the prosecutor had violated Rule 3.6 based on his extrajudicial statements. Because of the filing of the misconduct complaint against Gorcyca, the Perry case was turned over to the Livingston County Prosecutor's Office. An assistant prosecutor from Livingston County announced in August 2008 that charges against Perry were being dropped.

In November 2008, a hearing panel dismissed the lawyer disciplinary case on a motion for summary relief. The panel believed that no "objective person" could conclude that Gorcyca's statements had a substantially likelihood of materially prejudicing Perry's retrial as is required to establish a rule violation. The Grievance Administrator appealed the decision to the ADB.

The ADB reversed the hearing panel, and remanded the case back for a full hearing. The ADB was not persuaded that summary disposition was appropriate based on the facts alleged against Gorcyca. The Board agreed that the timing of a lawyer's statements may be one relevant factor in determining whether a lawyer has violated Rule 3.6, but the standard set forth in that rule was an objective one. The ADB opined that it could not, based on the barren record before it, that, as a matter of law, "no objective person could conclude that the statements had a substantial likelihood of materially prejudicing Perry's retrial." Numerous factors may be relevant in determining whether a substantial likelihood of prejudice exists, such as the intensity of media coverage at the time that any statement in question is made, the reasonable likelihood that coverage or dissemination would continue, the likelihood that the statements would or would not fade from memory, whether the statements would likely be revived in print or be available electronically, and the nature and prejudicial quality of the statements themselves. Interestingly, the ADB believed that some statements may be so prejudicial that they could be more likely to prejudice a distant future proceeding than less prejudicial statements made closer to a trial.

The ADB noted that a new trial had not been granted to Perry when some of Gorcyca’s statements, referring to inadmissible evidence, were made. Another extra-judicial statement, a press release referring to the polygraph examination, was made the day the new trial had been ordered. He appealed the order and not until thirteen months later did the new trial commence. The ADB did not believe that the absence of a firm or imminent trial date rendered Rule 3.6 inapplicable. The ADB further ruled:

It is important to make the assessments called for in Rule 3.6 without effectively requiring a demonstration that the statements caused actual prejudice and without giving undue weight to presumptions about the passage of time and its possible effect on the proceedings. While a panel applying MRPC 3.6 is not required to "stop the clock" immediately following the statements at issue and disregard all subsequent events, such events do not immunize extrajudicial statements if they are covered by the rule. As our Court has noted, the plain language of MRPC 3.6 requires a showing of substantial likelihood of prejudice. This test, along with the rule's other requirement that a reasonable person might expect dissemination, clearly demonstrates that the rule requires a forecast - even when subsequent events are uncertain. The rule is designed to prevent harm such as interference with adjudication according to the rules of evidence by tainting the pool of potential jurors. A lawyer may still be in violation of the rule even if events unfold in a manner such that this prejudice does not in fact occur or cannot be proven. Also, a lawyer's good faith subjective belief that prejudice probably will not occur may be unreasonable and thus afford no defense under MRPC 3.6.

The case is Grievance Administrator v. David G. Gorcyca, 08-37-GA (Michigan ADB, Oct. 30, 2009).

JAMES J. GROGAN, DACC, Illinois ARDC