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From the President: Defending the Press: The Importance of a Free and Open Press to the Criminal Justice System

By Drew Findling

Read more From the President columns.

Our liberty depends on the freedom of the press, and that cannot be limited without being lost.
Thomas Jefferson1 

As criminal defense attorneys, we are used to speaking for groups or individuals who have become the subject of an accusation. It is in our nature to fight for people who seem to have the weight of the world pushing against them. In a strange turn of events over the past couple of years, we have had to start speaking up for a very different kind of group that is having its constitutional rights under attack — the press. On Aug. 6, 2018, I tweeted at the president of the United States defending the media.2 I did so in my position as the current president of the National Association of Criminal Defense Lawyers. I took this step only when it became imperative that we not remain silent as the press, often our ally in the fight for a fairer criminal justice system, was referred to as the “enemy of the people”3 by the highest office in this country.

The criminal defense bar has a duty to defend the media for many reasons, but most importantly because (1) we cannot sit idly by as anyone’s constitutional rights are eroded, and (2) the historical and recent impact of investigative journalism on the criminal justice system has been far-reaching and cannot be ignored. Investigative journalism has a long history in this county. The press has been a significant conduit for bringing injustices that are otherwise hidden from the public into the spotlight. From the groundbreaking work in 1887 by the journalist Elizabeth Seaman (writing under the pen name Nellie Bly and spending 10 days undercover at a mental institution to expose the inhumane treatment of those who were committed)4 to the Pulitzer Prize-winning work in 2005 of Dana Priest of the Washington Post (revealing the CIA’s overseas “black site” prisons where the United States was secretly employing torture techniques to interrogate suspects),5 investigative journalism has been an essential element of our democratic society for more than a century.

Given the long legacy and the wide reach of the press, it is not surprising that the manner in which the news media reports on issues effecting criminal justice has a significant impact on the public perception of that issue. A negative viewpoint can entirely skew the reaction just as a positive one can. An illustration of the power of the press is what happened with the media reporting, public response, and ultimate consequence of the case of Stanford student Brock Turner in California. This case garnered the national spotlight after Brock Turner’s sentence was perceived to be too lenient for the sex offense for which he was convicted.6 Not only did the public viscerally respond to reading about his sentence, but also a grassroots movement built up around this issue and ultimately led to the recall of the judge who sentenced him.7 Just as the press can giveth, it also can taketh away.

As much as we can fight against pretrial (or even post-trial) publicity for fear of such negative public perception or the potential of a tainted jury pool, it cannot be argued that a transparent system is a bad system. In advocating for clients, we can turn to the investigative work done by journalists to give us statistics to argue against sentencing disparities or give us foundational grounds to file additional motions for more information about confidential sources or an agency’s standard operating procedures. Having access to more information and more data turns us into better and more effective lawyers. It is often our job to steer or control the narrative that the press relays to the viewing public.

Over the past decade, we have seen greater interest in criminal justice issues from the public and the media. Many investigative journalists have turned their attention to exposing flaws in the system. For example, the recent comprehensive project undertaken by the Herald-Tribune in Sarasota, Florida, entitled “Bias on the Bench” compiled sentencing data over the past 13 years in the state of Florida.8 The journalists discovered something that the defense bar already understands to be true: significant and pervasive racial disparities exist in sentencing, particularly in felony cases. The most important aspect of their reporting, however, is the use of hard data alongside anecdotal evidence to explain this truth to the public in a way that can be digested and not easily dismissed.

The Sarasota project is one of many important pieces of investigative journalism in recent years. The thorough reporting on the forensic lab scandals in North Carolina9 and Massachusetts10 has led to massive, much-needed overhauls in the state crime labs in those states and the dismissal of thousands of criminal cases based on false and/or faulty evidence. In Orange County, California, the District Attorney’s Office and local law enforcement were engaging in a systemic practice of illegal, unconstitutional and unethical behavior that included listening in on attorney-client conversations, hiding favorable evidence, and using a secret jailhouse informant program.11 This scandal was unearthed by the great work of some defense attorneys alongside the local press. The publication of a leaked photograph of detained immigrants undergoing “mass trials” shed light on the lack of due process that has become commonplace in some American border cities.12 Even if these issues were not initially uncovered through investigative journalism alone, the dissemination of articles on these subjects caused important issues to be magnified.

In addition to local and national news publications dedicating investigative journalistic pieces to issues of criminal justice, there are also media organizations such as The Marshall Project and podcasts such as “Serial” and “Undisclosed” that are solely dedicated to reporting on criminal justice issues. These organizations have had a real impact on real cases and have been widely popular and influential on the younger generation and their thoughts regarding the state of the justice system and the need for reform. In the new era of real-time reporting, people are turning to a wide variety of news outlets and mediums to access current events. It is not uncommon for a high-profile trial to be “live-tweeted” by a journalist in order for people to have access to information almost instantaneously. People are doing more than picking up the newspaper on the front porch to see what happened the day before.

Criminal defense attorneys are often at the front lines as defenders of rights contained in the U.S. Constitution. We often engage in litigation against governmental violations of a client’s Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. While we often view the world through the light of individual cases, a strong press provides institutional information on how the government violates the rights of individuals across the globe. Just as our clients’ rights are often attacked by the government, we now see the government attacking the rights of a free and open press. We must equally speak out and defend our journalistic compatriots in the fight to protect their rights under the First Amendment. Our democracy depends on it.

Notes

  1. Letter from Thomas Jefferson to James Currie (Jan. 28, 1786), Founders Online, National Archives, http://founders.archives.gov/documents/Jefferson/01-09-02-0209.
  2. Drew Findling (@NACDLPresident), Twitter (Aug. 6, 2018, 5:56 P.M.).
  3. Donald Trump (@realDonaldTrump), Twitter (Aug. 5, 2018, 7:38 A.M.).
  4. Ten Days in a Mad-House, published with “Miscellaneous Sketches: Trying to Be a Servant,” and “Nellie Bly as a White Slave” by Nellie Bly [Elizabeth Jane Cochrane Seaman] (1864-1922) New York: Ian L. Munro, Publisher, n.d.
  5. Dana Priest, CIA Holds Terror Suspects in Secret Prisons, Wash. Post, Nov. 2, 2005, http://www.washingtonpost.com/wp-dyn/content/article/2005/11/01/AR2005110101644.html.
  6. Ashley Fantz, Outrage Over 6-Month Sentence for Brock Turner in Stanford Rape Case, CNN, June 7, 2016, https://www.cnn.com/2016/06/06/us/sexual-assault-brock-turner-stanford/index.html.
  7. Maura Dolan, Recall of Judge in Brock Turner Sex Assault Case Is First Since 1932, L.A. Times, June 6, 2018, http://www.latimes.com/local/lanow/la-me-brock-turner-recall-20180606-story.html.
  8. Josh Salman et al., Florida’s Broken Sentencing System, Herald-Tribune, Dec. 12, 2016, http://projects.heraldtribune.com/bias/sentencing.
  9. Jessica Hopper, Feds: North Carolina Crime Lab Buried Blood Evidence, July 18, 2010, ABC News, https://abcnews.go.com/WN/fbi-north-carolina-crime-lab-buried-blood-evidence/story?id=11431980.
  10. Jon Schuppe, Epic Drug Lab Scandal Results in More Than 20,000 Convictions Dropped, April 18, 2017, NBC News, https://www.nbcnews.com/news/us-news/epic-drug-lab-scandal-results-more-20-000-convictions-dropped-n747891.
  11. Adam Elmahrek, ACLU Sues Orange County D.A. and Sheriff Over Use of Jailhouse Informants, April 4, 2018, L.A. Times, http://www.latimes.com/local/lanow/la-me-ln-aclu-jailhouse-informants-20180404-story.html.
  12. Chantal Da Silva, Leaked Photo Reveals ‘Mass Trial’ of Immigrants in Texas, June 4, 2018, Newsweek, https://www.newsweek.com/leaked-photo-reveals-mass-trial-immigrants-texas-957216.
About the Author

Drew Findling is principal of The Findling Law Firm, which he founded after serving as an Assistant Public Defender in Fulton County, Georgia. He has tried federal and state criminal cases throughout the United States and has spoken in CLEs in over 40 states. He is a recipient of the Heeney Award, the NAACP’s Civil and Human Rights Award, a commendation by the Legislative Black Caucus of Georgia, and GACDL’s Indigent Defense Award.

Drew Findling (NACDL Life Member)
Findling Law Firm
Atlanta, Georgia
404-460-4500
drew@findlinglawfirm.com
www.findlinglawfirm.com
@drewfindling
@drewfindling 

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