- The Washington Times - Friday, July 15, 2011


What do Dominique Strauss-Kahn and Casey Anthony have in common? If you say nothing, you are wrong. The correct response: Both are victims of a failing American criminal justice system where trials today become public entertainment.

News-hungry 24-hour cable channels and some non-cable networks hype “breaking news” even when nothing is “breaking” and offer information that is, at best, warmed-over and recycled every hour or so. The soap operas of the 1930s, 1940s and 1950s have morphed into 21st-century digitized entertainment that substitutes for the good old days of early radio and TV. “Talking heads,” usually former prosecutors and defense counsel, but even retired judges, purport to opine authoritatively as to what the in-court lawyers did wrong and, inevitably, how they would have done it differently and with a better result.

Moreover, as the commentators rant, photos of the young Caylee Anthony and the handcuffed International Monetary Fund former director Mr. Strauss-Kahn - in his case, shown in a theatrical “perp walk” - enhance the entertainment value and on-air visuals. The pictures, of course, were not seen by jurors in the Florida trial of Miss Anthony and won’t be shown to jurors in New York if the Strauss-Kahn case goes to trial, because these displays dramatically impact public opinion.

Commentators frequently choose sides, assuring viewers of the soundness of their positions. All the while, they sprinkle their remarks with snide references to the accused; Casey Anthony was dubbed “tot mom.” Such on-air hubris creates a significant divide between what a TV viewer sees and hears and what a jury experiences in the courtroom.

Each pundit wishes to be the first to predict how the case will turn out. They often are wrong, as seen in the Anthony case, and they may prove wrong in the Strauss-Kahn case, too. In both proceedings, the talking heads would have been well-advised to emphasize to the TV audience the importance of the presumption of innocence and the fact that everyone charged is not guilty. Additionally, viewers should have been reminded of the significance of reasonable doubt and that jurors must decide cases based solely on what they are allowed to see and hear in the courtroom. The general public today should - but simply does not - understand why the jurors saw the Anthony case differently than they did. Furthermore, the TV audience should be informed that the charges against Mr. Strauss-Kahn could be on the road to dismissal even though commentators have convicted him already.

Pontification over who is winning should be left to sporting events. The American justice system suffers terribly when the search for truth is filtered through media-generated hyperbole that is the norm all too frequently in this day and age.

While it is true that a sequestered jury is generally insulated from the talking heads, sequestration of juries is the exception rather than the rule in American trials. Furthermore, the entertainment aspect of 21st-century trials cannot help but negatively impact the understanding of the general public and future jurors, whether sequestered or not. Certainly, the First Amendment protects the rights of individuals to act irresponsibly even in situations such as these, but that does not mean one is well-advised to do so.

With the Anthony verdict in and the Strauss-Kahn proceedings in tatters, aficionados of soap-opera law might be forced to look elsewhere for the next entertaining trial. In the meantime, we ought to be looking to fix our trial system, as there is substantial need for serious re-evaluation.

Stephen W. Grafman is a member of the Washington law firm Sharp & Associates and is a former assistant U.S. attorney for the District of Columbia.

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