The Media: Our New Judge And Jury

A disturbing trend has developed in the popular media’s coverage of criminal arrests and trials. Granted, the media have been engaged in excessive behavior for decades when it comes to high profile trials. One has to look only as far back as the famous 1960s’ murder case against Cleveland physician Sam Sheppard.

For a while it seemed that the media coverage of important trials was reined in by the limits of old technology and the conduct of judges, prosecutors and defense lawyers, who gave some consideration to various state rules of professional conduct dealing with trial publicity. However, it seems that at some point in the ’90s and especially with the advent of satellite technology and the 24-hour cable news networks, the media are no longer satisfied with mere reporting of important developments in the progress of an investigation, arrest and trial. They want to influence the outcome of the case. Most of the excesses occur on the so-called “talking head” programs that have become the nightly fare of cable networks.

By now the scenario is common. A particular case, it need not be spectacular, occurs in Anytown, USA. For whatever reason, the case sparks the interest of editors in New York, Los Angeles or Washington and overnight a quiet courthouse square turns into a satellite dish farm. Local police and prosecutors are besieged by reporters all looking for the next scoop. While some media might actually be concerned about the truth of their reports, it appears that much of the alternative media are more concerned about breaking a story first rather than the truth of the matters reported.

At night, the cable news networks are then filled with the typical “talking heads” that pit defense lawyers against former prosecutors, who in most cases are also defense lawyers, and what follows is the expression of contrasting views solely for the entertainment of America’s viewers. Recent surveys indicate that most consumers rely on television and radio for their news and are not taking the time to read the more serious print treatments of significant cases. Instead, they are forming their impressions of the criminal justice system from the ill-informed shouting matches that pass for primetime cable network discussions.

Lately, especially in recent high-profile cases, commentators are now squaring off against police and prosecutors, who they believe are exceeding their authority in bringing and pursuing a charge. Of course, these same commentators are largely ill-informed and have no specific knowledge of the case or the evidence available to the prosecutor. Unfortunately, a lack of specific knowledge and legal training does not stand as an impediment to the expression of sometimes outrageous positions attacking prosecutors who have the audacity to pursue a charge even though the network personality believes the case should not move forward. Even more troubling is the complicity of members of the defense bar who release selected pieces of information and state personal opinion in an apparent attempt to influence the prospective jury pool and, in some cases, to intimidate victims and witnesses.

The problem is severe and is only getting worse. This fall the National District Attorneys Association will once again hold a September conference at the National Advocacy Center at the University of South Carolina in Columbia. This year the conference will deal with the media in general as well as its coverage of prosecutors and high profile trials. This is a chance for prosecutors to discuss our ethical obligations and relationships with the media. More importantly, we must map out a strategy to somehow counter the excesses of the media, which in many cases is fueled by defense lawyers who leak information or blatantly violate ethical codes in order to try their case outside of the courtroom. I hope that prosecutors and prosecutor coordinators from around the country will take advantage of an exceptional opportunity to assess the current state of media conduct and formulate some type of response to a deteriorating situation that is impacting the ability of defendants to have a fair trial and, just as importantly, making it virtually impossible for victims to have their day in court.

On a personal note, this is my last letter as president of the National District Attorneys Association. It sounds trite, but it really has been my privilege for the last 12 months to represent America’s prosecutors. No matter what I have done before as a lawyer or what I will do in the future, I know that serving as your president has been and will always be the highest point in my professional career. I hope that I have represented your interests well and that, along with my board of directors and executive committee, we have left this organization a little bit better than when we began. My successor in office is Mat Heck of Dayton, Ohio. I am confident Mat will continue our work to improve and grow our association. Our work as prosecutors is important. What we do is critical to the quality of life of every man, woman and child in the United States. If we do our jobs well, then our communities are safer. If we do not, then more victims will suffer and criminals will walk free.

I have had the honor of representing the finest men and women I have ever had the privilege to know. In spite of unjustified criticism, shrinking budgets and a list of problems and challenges that grow daily, prosecutors will continue to bring the strongest possible cases to our courtrooms in order to make our communities safer for everyone. Thank you for allowing me the privilege of serving as your leader and spokesperson for the last year. With your continued help and support, NDAA will grow even stronger as the voice of America’s prosecutors.