Two scenarios. In the first one, you are on the streets of Boston when you are placed under arrest. The police bring you to court in due time. As you get out of the transport, there is a crowd of people outside yelling questions. You do not see them too well because you have to keep diverting your eyes from all the flashbulbs. In the second scenario, you have heard the rumblings of an investigation amid your colleagues; you seem to be its target. Everybody is treating you differently. You are scared, although you smartly have already hired an experienced criminal defense attorney. You feel that your rights are being violated every day and you have had it. You call your lawyer and tell her that you want to expose all this unfairness to the media. She says, “Not yet”.
These two scenarios are not far-fetched and they could happen anywhere at virtually any time. Both are scenarios my clients have faced. The scenes are harbingers of what is to come. Their message is, “You are about to witness, first hand, how Justice changes when the media circus roams into the criminal justice tents.”
Unless someone involved is already a celebrity, this will happen most often in cases involving homicide or sexual assault. If you are a celebrity, such as the late Michael Jackson, you simply have to be involved. When Michael was charged with, and then on trial for, a sexual assault, it was basically the number one news story. This week, as he was laid to rest, Michael was on top of the headlines again, albeit in another criminal justice role. Now, there is question of whether he was the victim of some kind of homicide.
Cases involving celebrities like Mr. Jackson, O.J. Simpson or Robert Blake are not the only criminal cases which will draw the public’s attention. There need not even be violence. There was no violence involved in a particular white collar case which dominated the headlines for a good part of this year. While he had been known in certain circles, most Americans did not know who Bernie Maddoff was until his crimes started to see the light of day. In other words, it is often the circumstances involved which will bring it to the attention of the media.
As perhaps you can sense if you review my profile, I have handled a number of high profile criminal matters. My experience with them started during my days as a prosecutor in Brooklyn, dealing with the infamous “Day of Outrage” protests led by Reverend Al Sharpton (which, itself, was sparked by an unpopular verdict). It has continued through handling various high profile cases as a defense attorney here in Massachusetts.
Many things can trigger public attention to a particular case and one cannot always predict a matter’s notoriety. The point of this posting, though, is to look at what happens when a matter reaches media scrutiny.
We all often feel like we are being unfairly treated. At those times, we believe that any reasonable person would see things our way and be horrified on our behalf if word ever got out. However, the reality is that this is usually not the case for potential, or actual, criminal defendants. Further, the very involvement of the press usually makes matters worse for the accused.
I have often written about the answer I usually get from police and prosecutors when questioning their motivation in pursuing with such vigor certain criminal matters which clearly do not warrant such attention. Yes, I am referring to the oft-quoted, ‘What if he goes out and kills someone?” argument. I can tell you as a former prosecutor that they are talking about the fear that, if they are not harsh enough with the accused, and he goes out and commits another crime (usually referred to in terms of murder), their office will be on the front page of the news, blasting them for being so lenient and laying the blame for the future killing at their feet. In many cases, this will mean their job, if not their career.
“But, Sam”, you ask, “Don’t they face that same risk by being too harsh in the first place…assuming the future murder never takes place?”
The answer is “No”. When was the last time you saw the police, prosecutor or judge criticized for being too “tough” on crime?
Here in Massachusetts, it was not so long ago that a Superior Court Judge had to basically step down from the bench amid criticism that she was too lenient with a particular defendant and harsh with a prosecutor. Of course, she went on to get a daily television show for awhile, but most members of the criminal justice system cannot expect such future employment. Judges have historically been considered sacrosanct. They may make decisions which are unpopular, but they are above political intervention and, supposedly, media pressure.
Those days to a large degree, have ended.
There are other pressures which can trigger media attention. For example, the victim, or the victim’s family, might start making public statements, arguing that the accused in their case is being treated with “kid gloves”. People love the mystery of conspiracy, and so, often, the suspicion is that “the fix is in” and that the defendant is able to pull certain strings to get out of the punishment they deserve. Of course, this, too, is to be avoided on the part of the prosecution and court. This problem is further exacerbated when politicians or other people of prominence become involved in the “public debate” of a defendant’s future and start putting additional pressures on the prosecution to see that “Justice”, or what their opinion of same, is done.
It is not only fear which will come into play in a prosecutor’s mind when handling a high profile matter. Often, the hope of a brilliant career ahead is the shining light which helps direct a young prosecutor toward the haven of a particular end result. For example, Vincent Bugliosi is a lawyer who has written a number of very popular books. However, when introduced, he is primarily awarded the title of, “the man who brought Charles Manson to Justice”. Of course, it did not hurt that he wrote a best-selling book about the trial, which, in turn, launched him into the literary world.
According to his oath, a prosecutor’s job is to “do Justice”. In today’s world, “Justice” is not so easily defined and can too often be manipulated by outside pressures and attention.
“Well, what if the matter is still just being investigated. Wouldn’t it be better to have the media watching to make sure law enforcement is being fair?”
Sadly, the answer is “No”. This is because the public eye is not likely to have that effect. It will only add to the pressure on law enforcement to make an arrest, or several arrests, regardless of “fairness” or what may happen in terms of verdict down the road. After all, if questioned, it is easy, and common, for law enforcement officials to simply release the information that they have arrested the “perp”, done a brilliant job doing so and then add that they cannot say anything else about the investigation because they would not want to prejudice anyone involved.
By the way, realistically, “anyone involved” seldom means the defendant.
Simply put, media attention is seldom, if ever, a good thing for the defense. It decreases the odds that the prosecution will be as reasonable, or lenient, as one might hope…even if the circumstances clearly otherwise call for it.
And so we reach the same old question. Namely, assuming that you are not a celebrity or live your life in some other media-worthy way, what does all this mean to you?
Unfortunately, a great deal.
Anybody can suddenly find themselves in a situation which commands public attention. The correct circumstances simply have to align themselves in the right way. These circumstances can include anything, including race, identity of those involved, the careers of those involved or the public sensitivity at a certain time about a certain crime. This is particularly true if the crime is one in which a large amount of people could be effected (such as in a high-level white collar case).
Should you be investigated or charged with a crime, you most likely do not want to invite media attention except in certain very limited circumstances. As it is, the wheels of Justice seldom give a smooth ride. One does not want to add an even rougher terrain to the trip. If the press is already involved in the matter, then your need for an experienced and seasoned defense attorney is even more important than ever.
“Why more than ever?”
Because you do not want your driver on this ride to be someone who is overly-excited about making his media debut and, overly focused on that, takes his eyes off the road to your judgment.
Have a great, safe and law-abiding weekend!