Justice for Jessica: When One Constitutional Right Impedes Another

By Andrew Cohen

Wednesday's arrest of a teenage suspect in the killing of a 10-year-old girl raises questions about the intersection of a fair trial and a free press.

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Westminster County Police circulated this image of Jessica Ridgeway during the search for the missing girl. (Westminster, Colorado, Police Department/Associated Press)

Many shelves worth of weighty articles and books have been written about the inherent conflict between the public's "free speech" rights under the First Amendment and a criminal defendant's "fair trial" rights under the Sixth Amendment. Every day in this country, prosecutors and defense lawyers, judges and juries, reporters and editors, have to balance the competing interests in play in any given trial. How much protection from undue pretrial publicity must a defendant get before he loses his constitutional right? How guarded must a defendant's trial be, how sealed his docket, in a society that values open trials?

Because so few crimes are ever alike, very few test cases are ever alike. But there are some things we have come to know. It is mostly a zero-sum game: The need for Sixth Amendment protection is usually greatest in correlation to the fervor with which the First Amendment is invoked to undermine that protection. Those criminal defendants who need the protection the most, in other words, are often the ones who get it the least. And it all starts at the moment of arrest, when the suspect is matched to the high-profile crime, when a curious public is given the "resolution" it demands from police. Everyone likes a solved crime, right?

Right. On Wednesday afternoon, the Westminster (Colorado) police announced that they had arrested a 17-year-old named Austin Reed Sigg for the murder of a 10-year-old girl, Jessica Ridgeway, whose dismembered body was found in a local "open space" area on October 9th. The particularly gruesome nature of the crime; the tender age of the victim; the fact that she was on her way to school on October 5th when she was allegedly abducted; the emotional coverage of it: all combine to make this a profound local tragedy. And, today, thanks to cable news and the Internet, profound local tragedies can instantly become national ones.

The Jessica Ridgeway case has indeed crossed over. It is now fully a national story, just like the story of that Florida woman became a national story, and the story about that California man, and that other California man, and that other little girl who was murdered in Colorado all those years ago. This also means that instantly, upon his arrest, Sigg became the latest in a long line of the "faces of terror." Under current law, the teenager never can be sentenced to death for this crime even if he is convicted of it. But wanna bet that won't stop the television prosecutors from suggesting he be? It is their first amendment right to do so, after all.

The arrest of Sigg even touched national politics. President Barack Obama happened to be campaigning in Denver, looking for Colorado's swing-state votes, when the announcement of the arrest was made. Sharing a podium with the president was Colorado Governor John Hickenlooper, a fellow Democrat and himself a potential future national candidate. So what did Governor Hickenlooper do? He did what politicians usually do when they have popular news to share. The elected official who never spent a day in his life as a cop or prosecutor shared with the crowd the news of Sigg's arrest.

But his political speech is not what I want to note here. Instead, it is this remarkable story posted online Wednesday by the Denver Post, the city's only remaining daily newspaper. The story is remarkable because it will obviously become an exhibit in this case if Sigg's lawyers ever complain about the presumption of guilt attached to their client from the moment he was arrested. Usually, I see these sorts of stories when I read appellate briefs, but this one I happened to notice in real time. It deserves some focus today, while the outcome of the Ridgeway case is still uncertain, while the tensions between the two amendments are strung so tight.

Here's how the Post's piece starts.

WESTMINSTER -- Westminster police have arrested a 17-year-old boy related to the kidnapping and murder of 10-year-old Jessica Ridgeway.

Austin Reed Sigg was arrested Tuesday night at 7:45 after police received a tip that led them to a home near Ketner Lake Open Space, according to a news release from the Westminster Police Department.

As far as the intersection of competing rights go, so far, so good. These are all classic First Amendment facts. Aside from their mere publication, they do not suggest any answer to the ultimate question, which is whether Sigg murdered Jessica Ridgeway and will be convicted of it. No defense attorney would ever complain about this lede, and no judge would take such an argument seriously. Now here are the next two paragraphs:

"This morning the Ridgeway family was notified of this arrest," Westminster Police Chief Lee Birk said. "We hope and pray this arrest gives them some measure of closure in dealing with their horrible loss and tragedy."

Authorities said charges will be filed against Sigg for the May 28 attempted abduction of an adult jogger near Ketner Lake, which authorities confirmed earlier this week was connected to Jessica's kidnapping and murder.

Sigg's arrest would bring "a measure of closure" to the Ridgeway family only if Sigg is guilty of Jessica Ridgeway's murder. So, with this statement by the police, we see how the legal tension begins to build, with pressure from the First Amendment side building against the Sixth Amendment side. The police believe this case has been solved. "Closure," they say, without mentioning any presumption of innocence. Still, no reasonable trial judge, and certainly no appellate judge, would look at the above paragraphs and conclude that they unduly prejudiced Sigg's right to a fair trial. Let's continue:

Sigg's mother, Mindy Sigg, told the Associated Press that her son turned himself in. "I made the phone call, and he turned himself in. That's all I have to say," said Mindy Sigg, before she broke down in tears and hung up. Sigg will be charged with two counts of murder in the first degree and a second-degree kidnapping charge, among others. He will make his first court appearance Thursday at 8 a.m. in Jefferson County.

"Every parent in every Colorado community will rest a little easier tonight," Gov. John Hickenlooper said in a news release. "While we still mourn the death of Jessica Ridgeway, we are relieved an arrest has been made and the pursuit of justice can continue. We are especially grateful today to law enforcement officers at all levels for their quick action in this case."

A different story here. These two paragraphs are devastating to Sigg's chance at a fair trial, if the case ever gets that far. We have in the first paragraph the strong suggestion that Sigg has confessed to the crime -- to his family, if not also to the police -- and that his mother believes he has a degree of culpability for Ridgeway's death. She broke down in tears and hung up. How many Coloradans out there will read this paragraph and say to themselves, "Wow, if his mom is saying this, he must be guilty"? And how many of these same people, if called as jurors in this case next year, will say they can put this impression behind them?

At the same time, in the sort of gratuitous comment more becoming of a politician of the 19th century than the 21st, Governor Hickenlooper piled on with a cheap line designed to reassure his community, and thus his constituents, that their streets are once again safe. "Every parent in every Colorado community will rest a little easier tonight" is a true statement only if those parents believe that Sigg is Ridgeway's murderer. And the "pursuit of justice will continue" only if Sigg is, indeed, guilty. If he is not -- and right now no one knows for sure -- then an injustice is being done. Let's now skip ahead a few paragraphs:

Austin Caisse, 17, is a student at Standley Lake High School and said Sigg used to attend there. Caisse has known Sigg since elementary school, although he said they have been out of touch the last year. When Caisse heard the news of Sigg's arrest, he said he thought, "God, don't let it be him," then, "Why?"

Caisse said Sigg "was always egotistical, but I never thought he would go this far." He added, "I'd expect him to get into a fight before leaving high school -- not murder someone." He said Sigg was really into Japanese culture like anime, and liked play computer games. The two shared an interest in collecting knives.

"We got into a lot of verbal fights," Caisse recalled.

He remembered that Sigg had a girlfriend for a while and thought he was "really nice to her and treated her well." He described Sigg's family as "awesome" and said they said they were very generous with Sigg, whom he described as "brilliant."

So we have the sobbing mom signalling Sigg's guilt. And we have the governor of the state proclaiming the arrest to a crowd. And now we have an acquaintance of the teenage defendant: a teenager himself, who concedes he has been out of touch with Sigg for a year, and who yet is willing to say "God, don't let it be him" (although precisely why he would think that never makes it into the story). There is nothing unlawful about any of this. Everyone involved here has a First Amendment right to say these things. But by this point in the text, Sigg's Sixth Amendment rights have been severely, and I would argue irreversibly, damaged.

On Thursday morning, Sigg will be brought before a judge for his first court appearance. The judge and prosecutor will solemnly note that Sigg's right to a presumption of innocence must be taken seriously by everyone involved in the case. Soon, there will be defense attorneys. Soon, there may even be a gag order limiting pretrial media coverage. But it's too late. Sigg's potential jurors, having read the Post piece, having absorbed the public reaction to the arrest, having been inundated by local television coverage -- "Justice for Jessica," screamed the chyrons Wednesday night -- will have largely concluded that Sigg is the murderer.

If this case proceeds toward trial, it is likely that Wednesday's coverage of Sigg's arrest will be part of a defense motion to change venue or receive some other relief. The police will shrug and play dumb -- "We didn't declare him guilty," they'll say. Prosecutors will pledge up and down that jurors will remain open-minded despite what they have seen or heard about Sigg. Jurors will promise to evaluate Sigg based solely on the evidence they see and hear in court. And media lawyers will come in and protest that the trial isn't open enough anyway. Here, at the intersection of the First and Sixth Amendments, is where the cynical kabuki dance will unfold.

I mention all of this not to diminish the horror of the crime or the significance of the arrest. Maybe the police got the right man. Maybe Sigg is guilty. Maybe, as local news reported Thursday, he did confess. We just don't yet know. Which is why it is so enormously important in a case like this, where the entire infrastructure of society -- from the police to the governor to the press -- is aligned against a teenage suspect, to remember that the balancing of interests contemplated by the Sixth and First Amendments is among the most delicate balancing acts our courts undertake. And let's be clear: The criminal justice system today largely favors the freedoms of the latter over the protections of the former. 

This article available online at:

http://www.theatlantic.com/national/archive/2012/10/justice-for-jessica-when-one-constitutional-right-impedes-another/264077/