Hey France, You Are Right About the Perp Walk

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The pre-trial practice of parading those accused of criminal conduct before the press is terribly prejudicial and unfair

dskperp.banner.jpgOf all the discordant notes that have been sounded since the arrest last week of former International Monetary Fund chief Dominique Strauss-Kahn, the most disappointing may have come from Michael Bloomberg. Of the now famous "perp walk" of the world's most famous rape suspect, the mayor of New York City said: "I think it is humiliating, but you know if you don't want to do the perp walk, don't do the crime." Then, perhaps sensing that he had gone too far in prematurely adjudging Strauss-Kahn guilty, the mayor added: "The real sad thing is if someone is accused and does the perp walk and turns out not to be guilty, then society really ought to look in the mirror."

Relax, society, and move away from the mirror. Whether Strauss-Kahn ends up being convicted or acquitted or something in between, most Americans don't need to look in the mirror or otherwise answer to furious French officials -- or anyone else -- for the policy and practice behind the "perp walk." The parading of a criminal suspect in front of the cameras shortly after an arrest, almost always in handcuffs, is not a societal problem like eating too much sugar or playing too many violent video games. It is not a national epidemic like sexting or reality television or methamphetamines or "meat-lovers" pizzas. It's not like the deficit or carbon emissions.You aren't responsible (unless you've convicted someone of a felony because you thought he looked guilty during his perp walk).

The perpetrator's walk instead is the result of one of the most cynical conspiracies in all of modern-day criminal justice. It is an officially-sanctioned and eternally re-enacted plot between the media and the police, the overt act of which benefits both parties  -- and prosecutors as well -- at the expense of the suspect. It is done so flawlessly and routinely now that hardly anyone in America even realizes anymore how prejudicial and unfair it is to a defendant. We simply take it for granted today that the public image of a presumedly innocent person can lawfully be manipulated by the government and its agents. That's why so many of us were so surprised when the French expressed outrage over the way Strauss-Kahn was treated after his arrest. Sometimes, it takes an outsider to see clearly the truth.

The police naturally have an interest in publicly displaying their fruits of their labor -- a suspect who looks guilty, as we all would if marched about in handcuffs after sleepless hours in detention -- and the media naturally have an interest in publishing the images they receive from the walks. (If I had a dollar for every time a perp walk was broadcast on television B-roll over the past 15 years I can tell you flatly that I wouldn't be sitting here writing this column). At fault are both the law enforcement officials who arrange to "walk the perp" at a specific time and place -- there is a reason the cameras are almost always there, folks -- and the reporters and producers who endlessly replay the images and take convenient cover under the First Amendment's free press rights. They use the First Amendment as a putative shield, even as they use the images themselves as a sword that cuts deeply into the Sixth Amendment fair trial rights of the accused.

And, whether they or not they are directly involved in it, prosecutors of course are delighted by the conspiracy. They are unjustly enriched by it because it can cement into the minds of potential jurors an image of guilt that can be indelible. Quick. Tell me what flashes into your mind if I say the words "Timothy McVeigh." You see him in that orange jumpsuit leaving that building, don't you? Perp walk -- and perhaps the only moving image many people ever saw of McVeigh before he was executed. Just imagine how many times America would have seen the Lee Harvey Oswald perp walk -- the worst perp walk in history, you could reasonably argue -- even if he weren't shot by Jack Ruby in the middle of it. And the courts sanction it all because, well, because judges believe they can cure bias and prejudice through voir dire and then jury instructions.

The "perp walk" has gotten a lot of publicity in mainstream America over the past 20 years, ever since another blunt New Yorker, Rudy Guiliani, began to use it as a federal prosecutor's tactic to shame and humiliate rich white men in and around Lower Manhattan. But it's been around a lot longer than that. New York magazine ran a great piece Thursday chronicling part of the history behind the show. Even in 1925, before television, it occurred with high-profile suspects. What the piece left out was mention of the "courtesy calls" from public information officers to reporters or camera crews that coordinate the craft. Thankfully, the folks at Poynter posted a good piece the other day about the journalistic ethics and legal precedent behind the perp walk. It's candid. Check it out here -- especially if you live overseas. (I wrote a piece on the subject in 1997 for a publication called The Media Studies Journal but cannot find it online).

France and America can have a serious debate about the pre-trial rights of defendants. The French treat theirs far differently than we treat ours. But if we are going to talk about the perp walk with our pals across the sea, if we are going to use the Strauss-Kahn case to educate them about criminal justice in America, we should be upfront and honest about what it is all about. We should say to the French:

When we talk proudly about the "presumption of innocence" we have in American justice systems we usually define the term quite narrowly. And our legislators and our lawyers and our judges certainly don't go out of their way to broaden that definition unless they absolutely have to.

As for the media, the legal presumption of innocence often means little more than using the word "alleged" or offering a brief disclaimer at the end of a piece or story. Aside from the occasional libel lawsuit, which are much tougher to win over here, the media want to get the story, or even just the image, no matter what other obligations they may have under our justice system. It is their legal right to do so no matter how unfair it may be. 

In our country, the government, in all of its various forms, is not a neutral actor in the justice system. Sometimes, it sides with the media against the individual. And sometimes it sides with the individual against the media. And almost always it does this for its own selfish reasons. Surely you folks understand that.

In the case of the perp walk, law enforcement sides with the media to the detriment of the suspect. It does so to gain advantage in the court of public opinion, if not in an actual courtroom itself. And it has repeatedly been allowed to do so by the federal courts, which ultimately render the final judgment of these things. Defense attorneys and others who rightly complain about this tactic simply don't have the legal or political constituency to change it.

That an independent media would be complicit with the government in this fashion is only one of the ways in which our first amendment to the Constitution makes our law and our politics so different from those of the Western European monarchies we left behind in the 18th Century. We are what we are.

For Strauss-Kahn's supporters, French and otherwise, the bad news so far here is that he has, indeed, been humilitated repeatedly since his arrest (the release Thursday of a photo with him in his "suicide-prevention smock" is terribly prejudicial pretrial publicity and I hope some defense attorney or the presiding judge inquires about it). On the other hand, the very same media organizations who have been complicit in harming the defendant's fair trial rights this past week will be equally as aggressive and offensive in harming the alleged victim's rights next week (indeed, they've already started) and in covering all of the weaknesses that may arise in the state's case against the defendant. Pretrial publicity can giveth and it can taketh away, too. 

No, dear international readers, that's not what "equal justice under law" means in America. But it's the best we can do in the present circumstances, what with the competing interests inherent in virtually all of constitutional law. We haven't quite reached the perfect balance between a free press and a fair trial and we probably never will. So please don't blame all of America for the tradition of the perp walk, France. Some of us over here see it for what it is, and find it highly unfair, even as we reckon it won't end anytime soon.

Image credit: Mike Segar (Reuters)

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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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