President's Column: The Fourth Estate: A Vital Component of Our Justice System

The Fourth Estate: A Vital Component of Our Justice System

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

 It is alleged that Jordan Brown, 11 years old, shot his father’s fiancée in the back of the head with his shotgun and then trundled off to elementary school with his sister. He will be exposed to life imprisonment without parole in an adult prison unless he admits the offense. At least that is the effect of the judge’s order, which refuses to transfer him to juvenile court. In Pennsylvania, anyone accused of murder, regardless of age, is charged as an adult and, if underage, must demonstrate they should be tried in juvenile court.

Of course, it is ridiculous that an 11-year-old should ever be subjected to adult incarceration, let alone for the rest of his life. But what is even more disturbing about the Brown case is the way that the media and the court apparently accepted the police theory as a given. For the media, his guilt was a foregone conclusion. One reporter pressed me to agree with as much.

I cannot understate the importance of the media to the fair administration of justice; to the exposure of official corruption and mendacity; to the revelation of government abuses of power; and to the call to reform ill-conceived or poorly implemented laws. Without a strong Fourth Estate,1 we would suffer at the whim of powerful public officials, unchecked prosecutors who exercise their discretion in the dark, and corrupt governments worldwide.

I am not referring to the tabloid journalists who sacrifice their integrity for publication sales, or to the radio talk shows that are driven by controversy for its sake. These do not serve the public interest. A democracy can only survive with an informed public. The public is diverted, not served, by McCarthyism. Joseph McCarthy imagined Communists in our government just like partisans accused DOJ lawyers who previously provided legal services to accused terrorists of aiding terrorism and conflicts of interest. Those lawyers did the right thing, the honorable thing. The media did too.2 I am referring to the men and women delivering quality, well-researched, investigative reporting; those who throughout history stick their necks out for what is right.

Because times are changing and print media is waning in popularity, some worry that objective and informed investigative journalism is dead. This has never been the case. The world continually shrinks. In the 1920s it was the industrial revolution, and a, then, new Time magazine touted summaries of all news stories in 400 words or less for the busy professional. Now we have blogs, Facebook, Twitter, buzz, news comedy shows, and more.

The same complaints about data overload and the speed of modern life are no excuses to discard good investigative journalism. The reporters from the Christian Science Monitor, the Center for Public Integrity, and NPR keep the public informed about current events in a manner that we can trust. ABC News’ Brian Ross and his investigative team continue to break important stories about the CIA’s torture activities. Shanna Druckerman and JuJu Chang of 20/20 champion the innocence of Hannah Overton, the wrongly imprisoned mother of five.

Newspapers have also been good enough to keep their solid, intelligent, and fact-oriented reporters on staff as well. Lisa Olsen and Rick Casey, at the Houston Chronicle, have investigated and reported cases of wrongful convictions/executions in death penalty cases. Not a popular thing to do in Texas. John McCormick at the San Antonio Express News has written objectively about criminal cases as well. They do their homework, often courageously publicizing the system’s shortcomings and failures.

I am in Atlanta, Ga., as I write this. And I am about to meet colleagues for dinner just off of Centennial Olympic Park. How many of you remember that Richard Jewel was pilloried in the press and irreparably damaged by the allegations that he bombed the Olympics there? He was the first “person of interest” in a criminal investigation. Without tough and thorough investigative journalists, the tabloid media would have allowed the government to get away with that. A recent blog-inspired, televised news report, with Stephanie Chen, criticized the practice and exposed it for what it was — the public bullying of someone against whom law enforcement had no evidence.

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Without such responsible media, we would see only perp walks, mug shots, and arrests of the merely accused. The public can be adequately informed of potential dangers without declaring the case concluded before trial. Without responsible investigative journalism, the public would forget that there is a presumption of innocence. This is a meaningful right upon which we all should insist — the Fourth Estate included.

In fact, the media should next rally behind the 2009 National Academy of Sciences report calling for corrections in forensic science. For too long prosecution “experts,” merely voicing their subjective and absolute views, testified by essentially saying, “Believe me, he’s guilty.” In innumerable areas they have passed off non-validated conclusions as science. No, it has not been established that every person’s fingerprints are unique. No, it is not true that hairs can be accurately compared microscopically. The use of mitochondrial DNA established that such comparisons were demonstrably wrong 50 percent of the time.

The reply of prosecutors, who attempt to get courts to accept such mediocrity as a substitute for proof beyond a reasonable doubt, is that courts have been admitting such evidence for decades. However, the courtroom is clearly a poor substitute for rigorous science. NACDL has condemned the admission of unproven science in our criminal courts and invites our brothers and sisters in the media to lend their support to this needed improvement in the criminal justice system. After all, the Fourth Estate is a vital part of our criminal justice system.


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  1. The Fourth Estate refers to the press. Attributed to Edmund Burke, the term was used during a parliamentary debate. “Burke said there were Three Estates in Parliament; but, in the Reporters’ Gallery yonder, there sat a Fourth Estate more important far they all.” Thomas Carlyle, On Heroes and Hero Worship and the Heroic in History (1841). “A Fourth Estate, of Able Editors, springs up; increases and multiplies irrepressible, incalculable.” Thomas Carlyle, The French Revolution: A History (1837).
  2. While Fox News facilitated the attack on these patriots, the New York Times, Ted Olson, and conservative and liberal law firms praised them.