Did the Three Little Pigs Get a Fair Trial?

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The Guardian is promoting its "open journalism" campaign with a clever new ad. But what are the costs of encouraging the public to judge a case before the legal system can grant due process?

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The Guardian

Like many other journalists on this side of the Atlantic, I am impressed both with the energy and the creativity of The Guardian's new "open journalism" campaign, which launched earlier this week to rave international reviews. The online video produced by the venerable British news organization is striking. Two minutes long, brilliantly produced, it uses the classic tale of the "Three Little Pigs" to illustrate why good journalism matters on both a micro and a macro level. Take the time to watch it.

Now, you could watch that video 10 times (I stopped at six) and come away with 10 different perceptions. It's a story about the power of social media. It's a story about the marketplace of ideas. It's a story of power. It's a story of economics. It's a story about property rights. It's a story about how things are never quite what they initially seem to be. As a legal analyst, I chose to see the story first as the classic constitutional battle between free press rights under the 1st Amendment and fair trial rights under the 6th Amendment.

Did the Three Little Pigs ever get a fair trial? The video never answers that question. But it's a legitimate topic -- after all, at 1:33 of the 2:01 video, we see pretrial publicity for the pigs, who are apprehended for crimes against the Big Bad Wolf. For 93 seconds, three quarters of the spot, the viewers being informed about "open journalism" see many of the ugly elements familiar to anyone who has ever followed a high-profile case here in America. The shrieking headlines. The rampant speculation. The arrest. The spin. Even the perp walk.

Maybe The Guardian doesn't answer the obvious question because the answer is one of those inconvenient truths that arise for journalists whenever their rights rub up against the rights of the accused to a trial free from prejudicial pretrial publicity. "Open" journalism may be great. Broad 1st Amendment rights are essential. But it comes at a cost in criminal cases -- costs to the defendant, to the justice system, and to the essence of justice itself. As a society we've come to accept these costs. But that doesn't mean we should ignore them.

To me, "open journalism" in the context of the American legal system is both a sword and a shield. Initially, it is a sword for the police and prosecutors, who hold huge legal and practical advantages over criminal suspects. Officials use their access to the media -- the other side of the "open" door, you could say -- to leak incriminating information about those suspects. The leak is designed to create the very thing the Constitution is supposed to protect against: prejudicial pretrial publicity that undermines a criminal defendant's right to a fair trial.

The media, which benefit from such leaks, naturally do little to expose how or why they occur and what damage they often do to a criminal defendant's presumption of innocence. I've long called this relationship a "conspiracy" and think it would be great if some public-interest media group out there (hey, ProPublica or Neiman, I'm looking at you) did some "open journalism" work on how the 6th Amendment rights of criminal defendants have fared in the age of social media and instant global communication via handheld device.

The Guardian's marketing film makes it seem as though a curious public is quickly rallying in support of the right of the pigs to defend themselves in their homes. But then the story turns. The Big Bad Wolf had asthma. We learn about the financial incentive for the defense of their homes, etc. Then the story turns again. In real life, here in America, to the extent that the public ever rallies to any murder defendant in any case, it's typically years later, when the truth surfaces about the details of an unfair trial, or a biased judge, or a recanted witness.

And here is where "open journalism" also can be a shield -- or maybe a shovel. It is "open" journalism, after all, which helps the nation learn about prosecutorial misconduct in capital cases or about racial disparities in sentencing. It is "open" journalism that allows the woman in Maine to know the details of injustice to men in Ohio or in Alabama, allows her to see patterns of prejudice, incompetence, or plain bad judgment from government officials, lay witnesses, judges, and medical experts. You get a whiff of that, too, in The Guardian's spot.

Bad judges. Bad lawyers. Bad witnesses. Bad laws. Bad cases. Thanks to the Internet and "open journalism," they all all get more quickly exposed today to international scrutiny and scorn. The increased use of DNA testing is the single biggest reason why we know so much more now about some of the wrongfully convicted people in our criminal justice systems. But new avenues of public dissemination about some of these cases surely accounts for shifting perceptions about the death penalty, our prison systems, and the accuracy of criminal trials.

It is telling that when The Guardian's creative minds sat down to create their video they thought that the pretrial phase of a high-profile criminal case would best enable them to flesh out the concept of "open journalism." It is also telling that the journalists moved on without telling us whether justice was done at the pigs' trial. Pretrial publicity is, indeed, almost by definition, remorseless like that. The leaks occur. The damage is done. And then everyone pretends that jurors can be objective at trial despite what they've heard or seen beforehand.

What are the costs of "open journalism" before trial? When does "open journalism" go too far in prejudicing the rights of defendants? If jurors, indeed, can erase their minds of preconceived notions and judge a defendant solely on courtroom evidence, then why do prosecutors and the police (and, later, defense attorneys) spend so much time and energy trying to manage pretrial perceptions? I hope The Guardian makes a sequel spot, where we learn how the case against the pigs turns out. And I sure hope they had a good lawyer.

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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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