JURIST Guest Columnists Stephen Cooper and Donnie W. Bethel discuss the effect of the behavior of Prosecutors who parade their cases to the media has on the Criminal Justice system…
Call us ‘old school’, but like the Honorable Scott Milne Matheson, Jr. put it, “lawyers, especially prosecutors, should not in [our] judgment, ‘try their cases in the press.'”
In 1990, Judge Matheson, then a distinguished law professor (who would later serve as the United States Attorney for Utah, before being appointed to serve as a judge on the United States Court of Appeals for the Tenth Circuit) made this statement in his 75-page law review article about the problem of “extrajudicial public comment from prosecutors.”
Judge Matheson bemoaned back then that this disturbing “phenomenon appears to be on the rise.”[PDF]
Sadly, 26 years later, the problem of prosecutors unethically pandering and parading their cases before the press is more than just ‘a rising phenomenon’—it’s metastasized into full-blown cancer.
Prosecutors routinely call conferences to vet prosecution evidence under the glow of the media’s klieg lights—as occurred in the much-publicized Brendan Dassey and Steven Avery case in Netflix’s Making A Murderer—tainting the jury pool and infringing on Avery and Dassey’s constitutional right to a fair trial (as ably reported upon earlier this year in John Ferak’s column, “Legal experts blast Avery prosecutor’s conduct.”)
The same questionable litigation tactics, dressed up in federal garb, are on full display in Jeffrey Toobin’s May 9 article in The New Yorker, appropriately called, “The Showman,” about United States Attorney for the Southern District of New York Preet Bharara’s infatuation with and misuse of the media.
Moreover, should you still not be convinced about the magnitude of this problem, take a look at the official statement the Monroe County Prosecutor’s Office in Bloomington, Indiana, provided to the Indianapolis Star on Monday, June 27, following the plea agreement in the case of Indiana versus John Enoch.
Enoch, a former Indiana University student, had been charged in two separate rape cases that suffered from massive evidentiary problems—the kind of problems that defense lawyers rightly call “reasonable doubt.” To resolve both cases, Enoch pled guilty to “battery with moderate bodily injury,” and was eventually sentenced to one day in jail and one year of probation.
Worrying about a public firestorm and clearly feeling the searing public scrutiny such cases can bring—exhibit A: the highly-charged sentencing of convicted Stanford rapist Brock Turner—the Monroe County Prosecutor’s Office provided the Indianapolis Star a full official statement defending its decision to resolve Enoch’s cases by way of a plea.
The defensive, four-paragraph statement details evidence and legal arguments against Enoch in a major newspaper for all to see—and is so one-sided that Enoch’s defense attorney felt compelled to respond with her own statement, also reprinted in full by the Star.
One hundred and ninety-five (195) years ago, in 1821, the Supreme Court of the Unites States declared in Anderson v. Dunn:
“[C]ourts of justice are universally acknowledged to be vested . . . with power to impose silence, respect and decorum in their presence . . . and as a corollary to this proposition, to preserve themselves and their officers from the approach and insults of pollution.”
Sadly, we’ve wandered a long way from this ideal.
Nowadays when reading about legal cases in the news—even after a criminal case is complete—one can’t help but observe that the ‘insults of pollution’ fly like spitballs in high school, littering our local and national press.
Stephen Cooper worked as a DC public defender between 2003 and 2012 and as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California. Donnie W. Bethel has litigated criminal cases as a prosecutor and a defense attorney for over 26 years in military courts-martial and in federal court, where he now practices as an assistant federal public defender in Alabama.
Suggested citation: Stephen Cooper, Donnie W. BethelWhen Prosecutors Parade, Criminal Justice Becomes a Circus, JURIST – Professional/ Commentary, June. 30, 2016, http://jurist.org/professional/2016/06/Stephen-Cooper-Donnie-W-Bethel-when-prosecutors-parade-criminal-justice-becomes-a-circus.php.
This article was prepared for publication by Marisa Pereira Rodrigues, an Editor for JURIST Commentary. Please direct any questions or comments to her at firstname.lastname@example.org
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