News media as an arm of the prosecutorial state

The arrest of a leading French statesman and politician, Dominique Strauss-Kahn, on charges of sexually assaulting a New York hotel chambermaid became a transatlantic media spectacle when he was photographed—manacled and miserable—being led from a Manhattan lockup. Publishing such pictures is illegal in France, and some commentators there were incensed by the photos of what U.S. reporters call the “perp walk” (“perp” for perpetrator). That’s when an accused person, if newsworthy, is deliberately marched to arraignment past the cameras.

Now Strauss-Kahn was no typical suspect. He was a European political star of the first magnitude, president of the International Monetary Fund, married to a well-known broadcaster, deeply rich, widely known and frequently profiled, until now a possible successor to Nicolas Sarkozy as president of France. His arrest couldn’t fail to draw enormous coverage, overriding any qualms journalists might have about giving spectacular play to unproven charges.

Nevertheless, the outrage over the Strauss-Kahn photos raises important, and I think, long overdue questions about the routine ways in which U.S. media cover ordinary criminal suspects. The fact is, the media’s normal practices aren’t fair, aren’t right, harm innocent people needlessly, do little to hold the courts accountable—the professed goal—and may make it harder for the justice system to do what it’s supposed to do.

I just read an excellent scholarly article that contrasts the media’s approach to naming criminal suspects in two European countries with the practice in the United States. The unpublished article, by Maggie Jones Patterson of Duquesne University and Romayne Smith Fullerton of the University of Western Ontario, looked at why Swedish and Dutch media typically avoid identifying accused people, even when convicted.

To be sure, media there do make exceptions, notably in high-profile crimes, as when Sweden’s foreign minister Ana Lindh was stabbed to death in a Stockholm department store in 2003. But even then, they do so carefully, thoughtfully and reluctantly.

That diffidence has nothing to do with law; publishing suspects’ names is perfectly legal in both countries. Indeed, Sweden’s public records laws are much more sweeping than their U.S. equivalents, so the information is fully available to the media. Journalists simply view their duty differently.

Why? Several reasons arise from the study.

First, a due-process concern: Even though jury trials are less common in Europe, juries may still be used, and publicity can pollute the jury pool.

Second, a larger fairness issue: For a prolonged period the suspect will be widely, perhaps indelibly, presumed to have done something wrong, regardless of the court’s eventual finding.

 Third, gratuitous harm to the suspect: Publicity itself constitutes an extra-legal intensification of punishment, toughening it well beyond what the law intends.

Fourth, injuring innocents: Not only might the suspect be guiltless, but family members will be shamed and humiliated by allegations they did nothing to provoke.

Finally, destroying the wrongdoer’s future: Publicity may impede reintegration into society, the ultimate goal of the justice system. It violates what one Dutch journalist called “the right to start again.”

By contrast, in my experience U.S. media practices are almost unimaginably prejudicial to defendants: Suspects are uniformly named upon arrest, with nearly all details coming from arresting officers. Rarely is the eventual disposition of minor cases reported, even when charges are dismissed.

 Journalists depend, for the bulk of their information, on cops and prosecutors, who have a vested interest in convictions. Media decide whether criminal allegations annihilate privacy rights, and if the case is deemed worthwhile reporters will present intimate details about suspects, friends, victims and families—in the service of “the public’s right to know.”

Most reporters would regard the idea that publicity might cause a convict something called reputational harm as laughable.

Ironically, U.S. practices are rooted in an adversarial principle—that the criminal justice system, like any governmental function, needs to be watched carefully and held accountable publicly by a skeptical watchdog press.

Yet with criminal suspects, the media routinely operate not as a check on the prosecutorial state but as its servant, and unwittingly mete out punishments that are less deliberate, less proportionate, less deserved, and far less accountable than those pronounced by judges.

Nonetheless, this U.S. style of media justice may be coming to Europe. The more benign traditions of Sweden and Holland, Patterson and Fullerton suggest, face pressure to get tough. That’s a result of immigration, which has made the locals less charitable about criminality they blame on newcomers, and the Internet, which offers the embargoed information online.

The next U.S. export to join Starbucks and iPads in the Old World may yet be the perp walk.

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6 thoughts on “News media as an arm of the prosecutorial state

  1. Excellent, thoughtful column, Edward. My view of today’s media is that, for a multitude of reasons, there is little real journalism being practiced or self-examination, particularly by the broadcast organizations. There seems to be little appetite for actual questioning of the powerful who control US politics and wealth. (except in ‘juicy’ scandal or gossip). This is true and, I believe, particularly important on the local level. It’s always been easy to cover perp walks, report on fires and promote the advertisers agenda with “news” coverage or lack thereof.

  2. Thanks for an excellent article. Your comment that publicity can pollute the jury pool is actually an understatement. I say this because I live in an area where several murder trials have been moved to another county because of the intensive media coverage. It seems to me that the media fail to distinguish between “the public’s right to know” with “the public’s need to know.”

  3. The “perp walk” violates the purported fundamental moral rule of most societies: “Treat others as you would wish to be treated by them. (Do unto others.)” It also serves to impair the presumption of innocence, which judges and presecutors are prohibited from doing under most criminal codes. (2.03(b), Texas Code of Criminal Procedure.)

  4. Your article raises interesting points on an aspect of the criminal justice system that is often overlooked, but I feel that it is slightly skewed because of one assumption “integration into society, the ultimate goal of the justice system.” Speaking as someone who has toured the criminal justice system from the within, I can say plainly that this is not its goal, and I’m not sure that it ever was. It is concerned with ‘facts,’ black-and-whites, weights and measures, lengths of time. Only things that which can be discerned beyond a reasonable doubt. To have an ‘ultimate goal’ would require a degree of unified leadership and forethought that our system is simply not capable of. Only when you view it with this in mind can you see that the ‘perp walk’ is really kind of trivial.

  5. Dear Prof. Wasserman:

    I also think it a great injustice when the newspapers piously refrain from publishing the name of an alleged victim of sexual assault, but have no qualms about printing the name of the alleged attacker. Why not accord the accused the same courtesy? Of course, then the story would read “A man is accused of rape by a woman.” Not nearly as interesting.

    Sincerely,

    Tom Padwa

    1. There’s a great story–I’ll withhold identifying details–about a small-town paper in the Rocky Mountain West where the editor decided he would do just what you suggest, and treat accused and accuser the same in sexual assault cases, and name neither. First test case: The guy who was charged was the town’s mayor. Ouch. The newspaper was, needless to say, the only media outfit in town that persisted in withholding his name, which was a little ridiculous.

      Personally, I’m in favor of not naming the women who make rape allegations. This may seem like a technicality, but a rape case isn’t a lawsuit, it’s a criminal prosecution. It’s the state that’s bringing the charge, not the woman. The alleged victim is a complaining witness, and my own sense is that witnesses in general get rough handling both from the justice system and the media.

      When it’s a sex case, ask yourself if you’d want to see your name in print if you were the victim of a homosexual gang-rape.

      Now, the fairness question you raise is on point, but not primarily, in my opinion, because the accused assailant deserves the same consideration as his alleged victim. It’s not so much a matter of equivalent treatment, in my view. It’s more a matter of what you want the system to do. You want the rape victim to get on with her life (and you also want others to feel they can come forward if they’re raped.) And if you also want the wrongdoer turned around rather than reviled and crushed, it seems to me there’s an argument for keeping his name out of the coverage too.

      Pretty thin coverage, at that point, as you say. But the coverage of criminal justice is so paltry anyway, I don’t see the system running hog-wild if the few salacious stories that now get covered were ignored.

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