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Neither popular opinion nor our criminal justice system perfectly answers questions of guilt or innocence.  The worst of all worlds occurs, however, when members of the criminal justice system join in the public debate in a manner that deprives others of their right to a fair trial.  I am saddened that certain San Diego lawyers have done just that by, among other things, predicting the outcome of the prosecution of David Westerfield, speculating as to his attorneys’ strategy, and guessing as to the facts.  Those comments tend to erode a defendant of the cornerstones of our criminal justice system, the requirement of proof beyond a reasonable doubt and the presumption of innocence.  They have done an injustice to the criminal justice system they swore to uphold, their colleagues who are defending a serious and complicated case, and a man who the District Attorney may yet seek to kill. 

Most of us, if we are honest with ourselves, rarely apply a presumption of innocence or the requirement of proof beyond a reasonable doubt to our daily dose of headline criminal justice.  But history, as well as recent experience, offers numerous examples of innocent persons that “everyone assumed was guilty.”  Richard Jewell, the purported Atlanta Olympic bomber, was the subject of months of press scrutiny and public condemnation.  Events, however, ultimately proved his innocence.  Wen Ho Lee was indicted, arrested, vilified in the press, and presumed guilty by a federal judge.  After many long months in solitary confinement, that same judge apologized and released Wen Ho Lee.  San Diegans may also recall Dale Akiki, who a judge found was “probably guilty” after a preliminary hearing.  After the public vilification, humiliation, and a long trial, a jury set him free.

Richard Jewell, Wee Ho Lee, Dale Akiki, and all the others who have been exonerated before or at trial surely lost years of their lives to the stress, fear, and process.  Even worse, though, is the list of innocent people convicted of crimes that they did not commit, and who were then sentenced to death row or to languish in prison.   In their cases, not even the presumption of innocence or the requirement of proof beyond a reasonable doubt could protect them from the horrors of prison or death row.

Long before our time, Abraham may have had the first “reasonable doubt” argument; his was with God.  Genesis reports that Abraham, aghast at God’s plan to punish (convict) an entire city for sinful behavior, asked God to relent.  Abraham first asks if God will destroy an entire city if fifty righteous people live there.  God agrees to spare the city for those fifty, and Abraham asks again, this time asking if God will destroy an entire city if 45 righteous people live there.  Then 40, then 30, then 20, then 10.  As Abraham argues, God keeps agreeing to not destroy the city if the ever-lower number of righteous people lives there.  The advocacy of Abraham, the patriarch of Judaism, Christianity, and Islam, on behalf of the sinners and innocent alike in Sodom reflects a religious basis for a core belief of our society that convicting the innocent is wrong.  It may be that fear of convicting the innocent, along with the simple notion that justice should be for all, drives our criminal justice system.

However, many innocents are charged and convicted.  A visit to the web page for the Innocence Project at www.inocenceproject.org shows over a hundred innocent prisoners who were on death row or who were serving long prison terms that have been released after proving their innocence.  That number is from just one project and reflects only ten years worth of work.  Those prisoners, though, had proof that their convictions were wrong.  How many innocent prisoners must there be who do not have proof of innocence?

Despite our fear of convicting the innocent, innocent people are still accused and convicted.  With that in mind, why does it matter that a few local lawyers feel compelled to comment on the quantity and quality of evidence in Mr. Westerfield’s case as well as the tactics of his attorneys?

What possible harm can these lawyer-commentators do?  They can do a lot of harm, actually.  Remember that the latest installment of Mr. Westerfield’s case?  That was the preliminary hearing, a hearing required by the constitution to weed out cases where no evidence exists.  Most lawyers will agree that not only did Mr. Westerfield have no obligation to present any evidence; he would have been foolish to do so before learning of the evidence that the prosecution will present at trial.  Potential jurors (for this and future cases) listening to those commentators might believe that the preliminary hearing answers questions of guilt or innocence when in fact it does nothing of the sort.  Those comments by lawyer-commentators about how much evidence exists may prejudice both the prosecution and the defense at Mr. Westerfield’s and others trials.

The speculation of the lawyer-commentators may carry a special weight with listeners.  Those listeners might think that if a defense lawyer thinks the evidence look bad, the evidence is probably even worse.  Lawyer-commentators who fail to tell the public that they have no idea whatsoever about the state of the evidence (and in some instances, they express an incorrect knowledge of the applicable law) prejudice the public with their speculations.

If the foundations of our criminal justice system are frail enough to experience unjust convictions, why would any experienced member of the criminal justice system publicly speculate about evidence and criticize a defense in a manner that makes the justice system less likely to work?  First, of course, the pull of the media, particularly television, is far greater than many can usually resist.  Who doesn’t enjoy the thrill of seeing themselves on television?   Next, may be the desire to please, the desire to be asked again to appear on television.  Maybe these “lawyer-commentators” believe that they may become the next Greta Van Susteren, and jump from the day-to-day toil of trial work to the glamour of hosting their own news show.     

Lawyers can and should join in the public discourse over high profile cases.  Defense lawyers can explain the procedures, the protections, and the pitfalls of criminal defense.  For instance, it would have been nice to hear our lawyer-commentators explain that the defense has no obligation to present any defense at a preliminary hearing.  The public should have heard that at the preliminary hearing the defense might not yet know all the evidence.  The lawyer-commentators can also explain that the defendant’s strategy so early in the case is usually limited to learning what evidence exists.  Finally, our lawyer-commentators could have explained that only a jury decides guilt, and only after hearing all the evidence in the case.

Several organizations have adopted rules to guide lawyer-commentators.  Many of those proposed rules have real merit, and lawyers should consult and abide by them.  However, like many situations in life, a “Golden Rule” best addresses the conduct of lawyer-commentators:  If I was the defense lawyer would I appreciate these comments?  I doubt that our lawyer-commentators could answer that question with a “yes.”  The rest of us can only hope that the jury pool for Mr. Westerfield’s trial will remain untainted and that, whatever the outcome, the jurors faithfully follow the presumption of innocence and the requirement of proof beyond a reasonable doubt.