In the days ahead — and especially after New York prosecutors drop their increasingly pathetic case against former IMF head Dominique Strauss-Kahn, as they surely will — you’ll see some media coverage of journalism’s role in this debacle. There will be a few notes about how everyone rushed to judgment.
But almost no one will be asking more basic questions about the way journalists go about their business in criminal cases. You will see little or no self-reflection about the way reporters work in concert with law enforcement in almost all such cases, in ways that are designed by the police and prosecutors to stack the deck against the accused.
It starts with the “perp walk” — the parading of the accused before cameras. Try this thought experiment. Imagine you’ve been arrested, and have spent a night in a filthy jail cell, getting maybe an hour of sleep in the clothes you were wearing the day before. Or, perhaps, you’ve been told to put on an orange jump suit that prisoners wear. Either way, now you’re shackled and frog-walked into a van that takes you to the courthouse. Then you’re manhandled out of the van and are frog-walked through a gauntlet of cameras and shouting reporters.
How do you imagine you’d look, whether or not you were innocent? You’d look guilty as hell, because the perp walk is designed to make you look guilty. (For more on perp walks, see this piece from the Poynter Institute’s Al Tompkins.)
The deck-stacking extends to the charges themselves. Charges are only accusations; they are not proof. Yet they are repeated verbatim by reporters in ways that make them sound like “this is what happened,” and putting “alleged” into the story doesn’t change that perception.
Then comes the tendency journalists to get on-the-record (can be published) material from people who refuse to attach their names to what they’re saying, often from law enforcement sources who are, again, working hard to ensure that any potential juror will assume guilt. I mentioned an example of this several weeks ago: a reprehensible story describing supposed details about what the alleged victim in the Strauss-Kahn case had told police and co-workers.
Look. I don’t know what happened in that hotel suite. Only two people know. One of them has an alleged record in France of being promiscuous and pushy with women (stories I tend to believe, in part because some of the women have gone public). The other, we have learned, has lied repeatedly to police and prosecutors, according to on-the-record statements from law enforcement people — though even now the anonymous sources continue to have a field day in supposedly responsible media outlets.
What’s blatantly obvious, based on what is known for sure, is that the woman is not a credible witness. Period. It is certainly possible that she was sexually assaulted in that suite. But “possible” is light-years away from the level of proof needed to send another person to jail for what would likely be the rest of his life.
What seems to have escaped most of the journalists covering this case, from the very beginning, is the same thing that the media ignore in almost all criminal cases: an actual presumption of innocence. If we believed in the presumption of innocence, we wouldn’t collaborate with the prosecutors and police on perp walks. We wouldn’t let ourselves be used to seed a presumption of guilt into the jury pool.
The defense you’ll hear is simple, and sounds compelling: The fact is that the most of the people arrested and prosecuted are in fact guilty. Law enforcement almost always operates in good faith, to get the bad guys.
But there are well-documented cases of bad faith. And even the best police and prosecutors make mistakes. That’s why a presumption of innocence is so essential — and why it’s shameful that journalists persist in mocking it.