Why the Loughner Trial Needs a Gag Order

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Sometime later this year, probably a month or two from now, court-appointed lawyers for Tucson shooting suspect Jared Lee Loughner will likely file a motion under Rule 21 of the Federal Rules of Criminal Procedure requesting a change of venue for their client's federal murder trial. If and when they do, they will likely argue, among other things, that Loughner cannot receive a fair trial anywhere in Arizona because of prejudicial pretrial publicity following the January 8th attack that left six dead, including a federal judge, and 13 wounded, including a member of Congress.

And when they make this argument, they will undoubtedly point to stories like the ones offered Tuesday night by the New York Times and the Washington Post, which both offered in graphic detail an account of the attack from law enforcement sources who characterized video surveillance tapes they've reviewed from inside the Safeway supermarket two weeks ago. The surveillance video -- more powerful to jurors than any dry signed confession ever could be -- almost certainly will be a huge part of the government's case against Loughner. It might even be Exhibit A if and when the case goes to trial. This is especially so because of the new wrinkle it has added to our knowledge about the event: Chief U.S. District Judge John M. Roll, whose murder forced the recusal of every federal trial judge in Arizona, may have died a hero, trying to save the life of Ronald Barber. 

That's the sort of story, of selflessness and sacrifice, of the last full measure of devotion to public service, that stays with a person the rest of their life, up to and including jury duty. Here is part of what the Times reported:

The video, according to Richard Kastigar, the investigative and operational bureau chief of the Pima County Sheriff's Department, also reveals that Judge John M. Roll appears to have died while helping to save the life of Ronald Barber, a Giffords employees. Mr. Barber, who was near Ms. Giffords when he was shot twice, has left the hospital. Mr. Kastigar said Tuesday that the video shows Ms. Giffords standing with her back a few inches from a wall when she was shot by the gunman, who approached in 'a hurried fashion' with the gun at his side and then raised it and fired a single bullet above her eye at a range of no more than two or three feet.

Good for the reporters at both news organizations for getting the videotape story (I wrote about their stories for Politics Daily, citing both reports). The stories offer intense, new detail about what is said to have happened. They are timely. And they seem impeccably sourced. After all, who else but law enforcement officials would be in a position to see and then leak this looming evidence? And what cynical motives would such media-friendly officials possibly have for disclosing, with such speed and zeal, relevant, material information about the facts of a pending murder trial? Especially before the presiding judge calls everyone in for a conference to warn about the dangers of inappropriately trying the case through the media.   

From the timing (10 days after the crime, just as interest in the story was beginning to wane)  to the tactics (the Times and the Post, for maximum distributive effect), the government's leaking of information about the tape, and the stories such leaking generated, are textbook examples of the sort of unduly prejudicial pretrial publicity that defense attorneys cite, and judges take seriously, when evaluating legitimate change of venue motions. And I would be very surprised if Loughner's sharp defense attorney, Judy Clarke, doesn't make that precise point in her briefs if she ends up requesting that her client's trial be held outside of Arizona.  

What is so unfair, you might rightly ask here, about accurate stories that describe factual events? Criminal defendants lose control of their lives in a million ways, why shouldn't vibrant coverage of news surrounding their alleged crimes be just another one of those ways? And especially here, where there doesn't appear to be a shadow of a doubt, let alone a reasonable doubt, about who pulled the trigger? If Loughner's on the tape, Loughner's on the tape. And why should public officials get all the grief? Doesn't the media (you included, Cohen) deserve a share of responsibility for the effects of prejudicial coverage on fair trial rights? All valid queries. But none of the answers would help us with the practical question here: Can Loughner get a constitutionally fair trial, especially a federal murder trial, anywhere in Arizona in the wake of the Tucson shootings?

When they decide to share this information, the police (and sometimes, the prosecutors) don't suddenly turn into First Amendment devotees so they can help out their reporter buddies. The leaks, and the way the leaks are duly reported, cannot help but inflame passions against the defendant. They cannot avoid further venerating and consecrating the victims. The stories create mental images for potential jurors, forming a cognitive narrative of guilt and culpability (and perhaps anger and retribution) that is then supposed to be dutifully submerged to the dictates of a judge's bleary and obtuse jury instruction about trial fairness. That's the point -- that is why the leaking occurs. There is a virtual library of earnest study -- mainly from the 1960s forward that chronicles the influence of media coverage and its impact upon potential jurors in high-profile cases. Staked out at the intersection of law and journalism, it's been a part of my professional life now for the past 14 years.

The week's big story (from the brazen Kastigar, who evidently allowed himself to be quoted by name without fear of professional repercussion) is in its own way a sly form of the "perp walk," the carefully-choreographed collaboration between the police and the press to ensure that the latter get a good (and perpetually used) photograph or television "walk shot" of a trial suspect, typically in prison garb and shackled. In both cases, the media get what they want, which is the money shot; the police get what they want, which is to influence potential jurors about the defendant's perceived guilt without a judicial filter; the prosecutors can plausibly deny any involvement, even though they often benefit from the leak; and the defense and the judge have to deal with the mess.

It's a game of chicken, really, between the executive branch (the police and prosecutors) and the judicial branch -- with the media productively playing the role of the oncoming trains.

It's a game of chicken, really, between the executive branch (the police and prosecutors) and the judicial branch -- with the media productively playing the role of the oncoming trains. How far can the leaked information go -- how prejudicial does it have to be, for how long, and in what fashion -- before a judge sees enough and moves a case? Obviously, the perp walk alone has never been enough. Nor, typically, is what Kastigar just did, as odious as the move may seem to the ends of dispassionate justice. Even where the prejudice to a defendant is manifest and pervasive, federal trials are rarely moved; for Pete's sake, Jeff Skilling couldn't get his Enron trial moved from Houston. The government typically goes right up to the line of undue prejudice before backing away and, when it crosses the line, judges typically declare anyway that they can remedy the resulting due process problem by selecting particularly earnest jurors following a particularly thorough voir dire. 

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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