At a press conference in November at which he formally announced four counts of first-degree murder against a defendant accused of killing his brother, sister-in-law, and their two young children, the Monmouth County prosecutor said that this is the “most brutal” crime he's seen since he became county prosecutor in 2012, and further stated that he would have sought the death penalty if it were possible. “I only enforce the law, I don't make it,” he explained. “But if that was a possible sentence in the state of New Jersey, I would have certified this case as a Capital case.”

Of course, it is universally known that the New Jersey Legislature abolished the death penalty in this state in 2007. While reasonable minds can differ on whether that should still be the case, it is beyond peradventure that there is currently no death penalty in New Jersey, and the defendant to whom the prosecutor referred could not possibly be subject to it.

Rule of Professional Conduct 3.8(f) provides: “The prosecutor in a criminal case shall … except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.” It is difficult for us to understand what legitimate law enforcement purpose is served by wishing that the law were more severe with regard to this defendant than it actually is. Two years ago, in Opinion 731, the Advisory Committee on Professional Ethics rejected the argument of a prosecutor seeking to display contraband at a press conference that “heightened public awareness of (thus leading presumably to enhanced general apprehension about) criminal activity was sufficient to justify extrajudicial statements by prosecutors.” It therefore found that “legitimate law enforcement purpose” only covers “communications that are necessary to protect against or alert the community about a specific and current danger to public safety” (e.g. an armed suspect still at large).

On the other hand, the prosecutor's opinion that the defendant should have been subject to the death penalty, however understandable his revulsion at the horrific crimes charged, could only have the effect of “heightening public condemnation of the accused.” Law enforcement officers, as any member of the public, are of course free to advocate in general for a change in the law and a restoration of the death penalty. But we think that a prosecutor should avoid expressing that opinion in relation to a pending case.