Nowhere is it harder to reclaim one’s reputation than in federal cases. Charges brought by a US Attorney entitle the accused to a preliminary hearing. There, the accused and his attorney can confront and cross-examine government witnesses before the case can proceed further. Unfortunately, in reality, this rarely occurs, because before the hearing is held, prosecutors go to a grand jury and seek an indictment. To most people, hearing someone has been indicted is the end of the road—guilt is certain. Yet, an indictment is the first state of a proceeding and just one way of charging a criminal act. Though it carries with it the presumption of guilt, an indictment is easily won. There’s an old saying, “You can indict a ham sandwich.” At a grand jury proceeding, the accused is not allowed to be present nor is his lawyer. It’s supposed to be secret, so unlike a preliminary hearing, there’s no opportunity to defend oneself.
Like a TV pilot, some criminal cases get “picked up” by the networks and make their way into prime time for dissection by Larry, Greta, Sean, Bill, and Nancy. Once there, no one misses a chance to pile on, partly because talking heads know they get invited back only when they are provocative. Good TV means painting cases in black and white. The pro forma tag line, “Of course, he is presumed innocent,” is followed by a blistering half hour on why there’s no way he can be innocent. The hammering is nationwide, which means that moving a case to another city for a fair trial isn’t an option. How easy would it be for a Casey Anthony to find a jury insulated from her pretrial media conviction when voodoo dolls in her likeness are sold on eBay?
No one can dispute the First Amendment clearly allows the media to opine, and guests on shows can say they believe a person is guilty. The problem is that while the talking heads and police can say what they want, attorneys are barred by the courts from saying anything that may affect the outcome of the case. Thus, many attorneys can only utter the garden variety, “No comment.” Or, “The charges have no merit.” Both of which the talking heads pounce on as yet another sign that the client is guilty. Granted, there is no restriction on the accused. But what clear-thinking attorney would allow his client to speak to the press?
Our system of justice is based on British common law. England, however, now prohibits the press from reporting prejudicial information about defendants in an ongoing criminal trial. Canada does the same. Perhaps our system would benefit if we followed their lead. What’s the harm of waiting for a jury verdict? The free flow of information would still exist, albeit at a slower pace. It would still allow for the public spotlight to shine on the institution of the courts, and defendants would have some hope of getting a fair trial.
