Bharara mum if de Blasio is using new digital campaign video to influence potential jury pool

By LOUIS FLORES

A new promotional video produced by Mayor Bill de Blasio (D-New York City) has been attacked by good government groups as being self-serving and a misuse of taxpayer money, according to news reports. Mayor de Blasio has defended the video, and he has promised that there will be more videos, according to a report published by POLITICO New York.

The timing of the promotional video has been described as suspect, due to its release at the turn of the year, which signals the start of the 2017 municipal election cycle. Mayor de Blasio has announced his intention to seek reëlection. The timing of the video also appears to coïncide with the potential filing of criminal charges against the de Blasio administration over a reported, wide-ranging Federal corruption investigation. Two grand juries sitting in Manhattan and a third grand jury expected to be or already empaneled in Brooklyn are or will be examining the political or fundraising activities of Mayor de Blasio and/or his political supporters. On Friday, the City Hall press office declined to answer a request made by Progress Queens to determine whether the promotional video was aimed, at least in part, to influence any potential jury pool that may be empaneled in any legal proceeding against the de Blasio administration.

A request made by Progress Queens to the press office of U.S. Attorney Preet Bharara that sought comment about any action that could be taken to address any attempt to taint a potential jury pool was not answered. The office of U.S. Attorney Bharara is reportedly leading the Federal corruption investigation of the de Blasio administration, and the offices of U.S. Attorney Robert Capers, State Attorney General Eric Schneiderman (D-New York), and District Attorney Cyrus Vance, Jr. (D-Manhattan) are all reportedly involved, at least to some degree, with some aspects of the wide-ranging investigation.

It is not known what preventative action, if any, prosecutors could take to cease any alleged attempts made by a potential defendant to influence a potential or sitting jury pool. In a 2005 article published in the Nebraska Law Review, three Colorado university professors, Robert Trager, Sandra Moriarty, and Tom Duncan, discussed how Wal-Mart, a party to a lawsuit cited in the article, had requested a change of venue after Plaintiffs' attorneys had broadcast television commercials that may have appealed to potential jurors' emotions. The decision to approve a change of venue fell on a judge, who could only use voir dire questions to determine the impact of the commercials after the fact. The co-authors of the paper asserted that ads could influence a jury pool, arguing that, "If under some circumstances news reports can bias a jury, advertisements about a pending trial certainly could do the same," adding, in part, that, "... advertisements are intended to influence people and, when used by attorneys to reach potential or sitting jurors, may be more likely to cause a 'substantial likelihood of material prejudice' than nearly any other form of expression." The article examined the use of advertising by attorneys representing parties facing a jury trial. Because that article examined the role of attorneys in purchasing advertising, the article did not examine any implications when elected officials produced promotional videos. When it came time for the paper's co-authors to propose solutions to the problem of potential jury tampering, one of the article's recommendations suggested that an effort should be made to gag attorneys to prevent the use of pretrial advertising campaigns to influence jurors.

A form of a gag was recently effected when Federal prosecutors took preëmptive action to reportedly put a stop to alleged attempts to obstruct justice in a separate, reported corruption investigation. In 2014, when Gov. Andrew Cuomo (D-New York) was facing intense scrutiny over what The New York Times described in a bombshell report as efforts to hobble the anti-corruption work of the now-shuttered Moreland Commission, the Cuomo administration allegedly responded by attempting to solicit positive statements from former Moreland commissioners to counter the criticism. The attempts to solicit positive statements from potential witnesses was viewed by Federal prosecutors as potential witness tampering and/or obstruction of justice, and those attempts reportedly triggered a strong rebuke from U.S. Attorney Bharara in the form of a warning letter issued to the Cuomo administration. The warning letter reportedly requested notification of any attempt made by the Cuomo administration to contact Moreland commissioners or Moreland employees, and the letter "warned that tampering with the recollections of commission members or employees could be a crime," according to a description of the warning letter published by The New York Times.