In colonial times and through the beginning of the 20th century, the American criminal justice system sanctioned and promoted public executions, traditionally in the form of hangings. Crowds from miles around would gather to watch the purported evildoer meet his fate on the rope, chanting and cheering as the perpetrator recited his last words (often a proclamation of innocence) and marched solemnly towards his government-endorsed demise.
Modern times have deemed such displays of spectacle unseemly; today we prefer to execute our criminals under the cloak of night with sterile needles, tucked away from public view. While the advent of poisonous gas and lethal injection has temporarily warded off the indignant mobs, (I am quite sure that, in my lifetime, an execution will be televised), the community slaughtering of the character of the accused is alive and well in the form of crime news media and the open forums for commentary available to anyone that has access to the internet.
24-hour News Gallows
That’s right – the gallows have been replaced with a twenty-four hour news cycle providing “analysis” of thirty-second clips of courtroom testimony, live-action “tweets” from the galley, and commentators hiding behind screen-names calling for retribution that is most generously described as Medieval but that most accurately falls within the constitutional prohibition against cruel and unusual punishment. It starts upon arrest, flatly ignoring the presumption of innocence (another one of those pesky constitutional mandates), and continues for every pre-trial hearing or argument offered by the defense, cumulating in a frothing, frenzied free-for-all of reporting and commenting during a trial, with inflamed outrage at a verdict of acquittal and condemnation of the defendant, defense counsel, and even the families of both in the event of a conviction.
As a criminal defense attorney who has had the responsibility of defending cases that, at least in my state of Wisconsin, have garnished high publicity, I cannot help but wonder why the thirst for blood is so profound, and what exactly it is that transforms alleged criminal activity – choices that are private actions of malfeasance by private citizens – into the merciless, unrestricted schadenfreude that is contemporary media coverage and commentary surrounding criminal trials. I also struggle with the desire to do in the press what it is that I so often find myself attempting to do in the courtroom. So, here it is, my effort to “set the record straight” so to speak.
Setting the Record Straight
When someone is charged with a crime, the first document issued is a criminal complaint. This is the government’s summary version of the case, and it is written to present the facts in the way most likely to represent a defendant’s guilt. This document is publicly accessible, and is often the first “source” of information cited by the press. The problem with this, however, is that a criminal complaint is a slanted, summary document that is virtually always incomplete. There are many elements not included in the criminal complaint:
- If there is the possibility of an alibi, that will not be included in the criminal complaint.
- If it is a sexual assault case, and consent is an issue, that information will not be included in the criminal complaint, often excluding whether the parties had a prior romantic relationship.
- If it is a homicide or a battery, issues of self-defense will not be included in the criminal complaint.
- If the search or seizure of evidence was illegal, to an untrained eye, at least, that information will not be included in the criminal complaint.
It’s the State’s case in a nutshell, and it reads exactly as intended – to convince the reviewing judge that there is probable cause to believe a crime has been committed. It does not state facts that have been proven beyond a reasonable doubt; hell, sometimes it does not state facts that ultimately will be proven at all. It contains allegations. Nothing more. In Wisconsin, every jury hearing a case at trial is specifically instructed that the information contained in the criminal complaint is not evidence, and should not be considered by the jury in any way to draw an inference of guilt. Nonetheless, this document is where the press gets the bulk of their initial information to report upon for the future.
Evidence, Witnesses, Discovery, Oh My!
It only gets worse from there, if you’re seeking truth rather than sensationalism. Lawyers for the defense get hundreds, if not thousands, of pages of documents detailing the evidence to be offered in trial, should there be one. These documents can contain any of the following:
- Recorded statements of witnesses
- Scientific testing results
- Relationship and mental health histories
- Search warrant requests
The contents of these documents are not available to the media. Further, discovery documents that contain exculpatory evidence are required to be turned over to the defense, but not the press. Thus, the same slanted criminal complaint story is repeated every time the case is mentioned on the news, but none of the facts that make guilt less likely get airtime.
Instead, the public is repeatedly shown a mugshot (want to make someone look like a criminal? Take their picture in jail clothes on the worst and most frightening day of their life), typically over and over again, along with a “hard-hitting interview” containing statements from a “former friend of a neighbor of the family” who has had exactly two contacts with the accused in the past three decades that clucks his tongue and mutters “I always thought there was something strange about him” before cashing in on the fifteen minutes of fame provided by giving the interview. The commentators then swarm in, pointing to this former-friend-of-neighbor as a modern-day Nostradamus, who saw what everyone else failed to see.
Erstwhile, ethical prohibitions on attorneys require that we remain tight-lipped when called for comment, deferring to the courtroom as our arena for telling our side of the story.
When a case finally gets to trial, witnesses have been subpoenaed, exhibits have prepared, and expert reports have been generated. Trials last from days to weeks, starting early in the morning and sometimes running through the dinner hour. The problem with this, of course, is that the news airs at 5 or 6 p.m., and typically devotes less than four minutes to a segment intended to “accurately” portray eight to ten hours of testimony. The result? A video clip of a witness or a lawyer, running approximately thirty seconds, typically including the most inflammatory language used throughout the entire day, sold to the public as representative of the actual evidence entered. Perhaps unsurprisingly, the sound bite chosen is representative of the State’s theory of the case.
I recently worked on a trial where the complaining witness’ mental health was in issue. The local news played a clip of a child abuse “expert” asserting her opinion that the child did not exhibit mental health problems during her assessment, but failed to devote equal time (or any time at all, frankly) to the team of doctors including a psychologist and a psychiatrist who had previously diagnosed the child with serious mental illnesses in the past. The same news channel did, however, helpfully post footage of the child fainting in “raw feed” form on the Internet, for viewers and readers to gawk at during leisure time as much as desired. This fainting episode did not occur in front of the jury. It was not evidence. It played no role whatsoever in the trial, and did not offer any relevant commentary on my client’s guilt or innocence, but it was shocking and attention-grabbing, and so it controlled the headlines for the days to come.
I’m not naïve. I get it. Fainting victims are more interesting than medical records. If Scott Peterson’s sister believed he was guilty, that was somehow more relevant than what was presented in court. Johnny Cochran’s pithy rhymes were more reportable than the outstanding (and lengthy) cross-examination destroying the reliability of the DNA evidence in the Simpson case. Whether Casey Anthony had a trashy tattoo or dressed scantily while going to nightclubs was more interesting than whether the evidence supported the claim she was a child-killer. Calling George Zimmerman a racist was more entertaining than having an honest, introspective examination of “stand your ground” laws in the state of Florida. After all, that would require a reading of the statutes, something that probably takes twenty minutes at a minimum, and would therefore cut into other coverage for the night that details the affair some politician is having or how much weight a reality television star has gained with her pregnancy.
Why are we Watching?
Zimmerman and Anthony (and, to a certain extent, Simpson, though he was found to be civilly liable) share a commonality: whatever happened in the media was not happening in the courtroom. Otherwise, these defendants would not have been acquitted. They entered with a presumption of innocence, and after weeks of trial, they left with the same presumption. In each case, the State could not prove guilt beyond a reasonable doubt. That is how it is supposed to work. The juries didn’t fail; the media did, by relying on slanted, summary information and selecting irrelevant snippets to portray instead of the actual facts. And if that alone doesn’t trouble you, the fact that the American (and, in some cases, international) populous is buying what the media is selling in thirty-second scraps should. My question is this:
Why are we watching?
What morbid fascination exists in our psyches such that every time a local news anchor says the words “child molester”, people put the remote control down and tune in? Have we really evolved so little since the days of public hangings? To soundly answer the latter question with an unequivocal “yes” one needs to look no further than the “comments” section after any local crime news story posted online.
Hell Hath no Fury like the Comments Section
In a recent high-profile case a colleague of mine and I defended, the comments read, on a daily basis, something like this (please note, I’ve corrected the grammar and spelling):
- Commenter 1: I hope he burns in hell for what he did!
- Commenter 2: I agree–lock him up and throw away the key! Let’s see how he likes prison!
- Commenter 3: Yeah, I hope he gets raped there. Don’t drop the soap, buddy! Ha, ha!
- Commenter 4: We should just save the taxpayers money and put a bullet in his head. I could use him for target practice over here.
On and on they go. I’ve actually seen commentary calling for the death penalty (a punishment my state thankfully does not sanction) from a person who believes that there are nine people on a jury (that’s actually a baseball team, there are twelve members of a jury, for those wondering). I’ve seen commenters offering to “set facts straight” and making claims about information that is patently false and could be easily proven as such by listening to less than two hours of testimony. I see comments that take shots about a client’s weight and physical appearance, as if whether a defendant is attractive or thin have anything to do with guilt or innocence.
These commenters base their conclusions on the inaccurate, shortened sound bites I’ve already described, and engage in discussions of the most effective ways to torture a perpetrator with a joyfulness that I rarely see anywhere else. Many of them cannot spell “convicted” or “attorney” but helpfully root for the former while lambasting the latter (which I try not to take too personally). The irony of the fact that they are each exercising a right guaranteed by the same Constitution that provides the accused the right to a fair trial seems lost among the misplaced commas and incorrect use of homonyms.
Everyone has the Right to a Defense
To say that it is frustrating to read vitriolic hate speech that is based on ignorance and misinformation understates the matter. To receive hate mail from commentators wishing acts of rape, torture, and even murder upon me for the simple act of doing my job is disturbing. To realize that in honoring the oath I took as an attorney to protect the Constitution both exposes me to such cowardly, anonymous malice and facilitates the commentator’s ability to continue to express such nastiness makes me throw my hands up in the air and laugh, because what else is there to do with it, really? To know that, if the anonymous propagator of such threats were to be charged criminally, I’d be the first attorney offering services to defend their right to their distorted, misspelled, propagandized opinion makes me proud of who I am, and of what I do.
My clients aren’t monsters. Some of them have been accused of horrible things they did not do. Some have been accused of horrible things they did do. Either way, they are still human beings. They are deserving of a defense, both from a legal perspective and from a moral one, because to fail to provide one starts us down a dangerous path, indeed. They are also deserving of having complete information provided to a community that stands all-too-ready to judge, lest we continue what can now only be described as a “long-standing” American tradition of highly-publicized hangings.