Trial by Media

Trial By Media: The Justice System No One Wants You to Know About

Sunday 25 December 2011

by: William Fisher, Truthout | News Analysis

Former Attorney General John Ashcroft, now a lobbyist, appears before a House Judiciary subcommittee in Washington, Tuesday, March 11, 2008.  (Photo: Doug Mills/The New York Times)

Remember Mike Nifong? Sure. He's the sleazebag former district attorney in the Duke University lacrosse team's rape scandal back in 2006. He made himself a short-lived hero by agreeing to prosecute members of the Duke Lacrosse team for allegedly raping an African-American exotic dancer the team had hired for a party.

But Nifong, hellbent on winning re-election, forgot that he was an officer of the court. He went public with a series of accusations that later turned out to be untrue; he exaggerated and intensified racial tensions; he unduly influenced the Durham police investigation; he tried to manipulate potential witnesses; he refused to hear exculpatory evidence prior to indictment - that regulations on the conduct of an identification exercise were breached by failure to include "dummy" photographs, that he had never spoken directly to the alleged victim about the accusations and that he made misleadingly incomplete presentations of various aspects of the evidence in the case (including DNA results).

He was dismissed from his job and later disbarred.

Or how about federal prosecutor William Welch, and his deputy chief, Brenda Morris, who convicted the late Sen. Ted Stevens - and helped their own cause by withholding evidence from the defense that could have helped the defendant.

Or there's Richard Convertino, the lead prosecutor in the so-called Detroit Sleeper Cell terrorism case. He was removed from the case on suspicion that he allegedly failed to turn over photographic evidence to the defense.

These acts and alleged acts by prosecutors all qualify as prosecutorial misconduct. There are hundreds of such cases in our justice system every year. Very few of them ever get such high visibility. In fact, most abuses of this kind probably go unnoticed and unreported. In the three cases referenced above, only Nifong lost his law license. The others did not.

But, since 9/11, there has been another kind of misconduct growing. It usually takes place outside the courtroom and is a favorite of politicians of both parties, especially if they are running for re-election.

This is the phenomenon of politicians and others with private agendas calling press conferences to launch inflammatory - and usually false or grossly exaggerated - claims about the importance of a given case to the national security of the United States.

Examples are legion. When Jose Padilla was arrested for what the press told us was an attempt to explode a "dirty bomb" (a nuclear device) in the middle of New York City, then-attorney general John Ashcroft was in Moscow.

He immediately reorganized his day and hurriedly called a press conference, where he trumpeted Padilla's apprehension in what TIME called a "fear-inducing video hookup."

Ashcroft was surely on a roll that day. But is was not long before it began to be clear that, to quote TIME again, "[Padilla] is not the deadly, skilled operative Attorney General John Ashcroft seemed to be describing when he announced Padilla's arrest ... In fact, history may judge the Administration's legal treatment of Padilla - locking him up indefinitely with no plan to try him - as more alarming than Padilla himself."

When Padilla was finally arraigned in Federal Court, the "dirty bomb" charge was nowhere to be found.

Then there was the prosecution of Dr. Rafil Dhafir, an oncologist from Manlius, New York, a community near Syracuse. Dhafir was arrested in February 2003 in a raid that drew nationwide media coverage. Long before his trial began, he was labeled a terrorist by Ashcroft and then-New York governor George Pataki.

On the day of the arrest, Ashcroft announced that "funders of terrorism" had been arrested. Just before Dhafir's trial began in October 2004, Pataki described the case as a "money laundering case to help terrorist organizations ... conduct horrible acts," an announcement perfectly timed to reach potential jurors.

But no reference to terrorism, or to Dhafir's Muslim faith, was permitted in court, and no terrorism charges were ever brought against him. His supporters claim he was "selectively prosecuted."

Dhafir was convicted in February 2005 of 59 criminal counts, including money laundering, conspiracy to violate US sanctions against Iraq, misusing $2 million that donors contributed to his unlicensed charity, Help the Needy, spending $544,000 for his own purposes, defrauding Medicare out of $316,000 and evading $400,000 in federal income tax payments by writing off the illegal charity donations. No terrorism here.

Politicians outside the courtroom intentionally hyping the extreme dangers presented by defendants have become standard practice. This has occurred numerous times when it was clear that the alleged "terrorists" were pathetic down-and-outers who many believe had been entrapped by the FBI.

What politicians say at their press conferences is intended to achieve one objective only: to plant doubt in the minds of prospective jurors.

Independent activist Katherine Hughes adds that, "In Dr. Dhafir's case, they also transformed his community image from a compassionate humanitarian into a crook and supporter of terrorists."

Just a few days ago, we recall New York Mayor Michael Bloomberg convening a hastily organized press conference to announce the arrest of one Jose Pimentel.

Flanked by Police Commissioner Ray Kelly and Manhattan District Attorney Cyrus Vance, Bloomberg said: "Yesterday afternoon, New York City police officers arrested a 27-year-old al-Qaeda sympathizer who was plotting to bomb police patrol cars and also postal facilities, as well as target members of our armed forces returning from abroad. Jose Pimentel of Washington Heights, which is in the northern end of Manhattan, faces terrorism-related charges ... "

Bloomberg also got an opportunity to praise the work of New York's finest: "The NYPD Intelligence Division did outstanding work in tracking this individual and containing the threat he posed to the city. The police constructed a duplicate of an explosive device that the suspect built, and then detonated it in a way that he intended to use his weapon. We wanted to show you a video about the resulting damage," he said.

He went on:

The suspect was a so-called lone wolf, motivated by his own resentment of the presence of American troops in Iraq and Afghanistan, as well as inspired by al-Qaeda propaganda. He was not part of a larger conspiracy emanating from abroad. He represents exactly the kind of threat FBI Director Robert Mueller and his experts have warned about, as American military and intelligence agencies have eroded al-Qaeda's ability to launch large-scale attacks.

This case is also reminiscent of another lone-wolf plot in 2004, in which two New Yorkers, angry over the treatment of prisoners in Iraq, plotted to bomb the Herald Square subway station. Like the current case, the Herald Square plot was uncovered by the NYPD Intelligence Division.

And as with still another case earlier this year, in which a lone wolf plotted to attack a large synagogue, the NYPD teamed up with the Manhattan district attorney's office to prosecute Pimentel under state terrorism-related statutes.

Whether launched by lone wolves, al-Qaeda, or al-Qaeda affiliates, there have been at least 13 previous terrorist plots since 9/11 targeting New York City. This would be the fourteenth.

Because of such repeated threats, the NYPD remains focused on preventing another terrorist attack. We assign 1,000 officers to counterterrorism duties every single day. This is just another case where our precautions paid off.

Some journalists covering the story simply transcribed Bloomberg's words. Others were suspicious. Did Bloomberg rush this arrest and press conference to divert attention away from the conflicts with the Occupy movement, whose members, as well as some journalists, had just been driven out of Liberty Square, their tents and other equipment destroyed by police? And where was the FBI? The Bureau participates in almost all such events with the mayor. Soon we learned that the FBI was saying it would not have made this arrest.

That's a big statement for that agency, which has been suspected by many of using paid informants to entrap gullible individuals and get them involved in terror plots. However, many of these so-called plots look like children's games. In others, the alleged perpetrators look so disheveled, bedraggled and disoriented that they seem like the last people who would be capable of carrying out a terror plot.

In addition to trying to influence juries with incendiary and fear-provoking pronouncements, politicians and the law enforcement agencies they support employ a second technique - in some ways, worse than the false accusations.

This is the designation known as the "person of interest." This insidious label has the capacity to put life on hold, to turn lives upside down, to bankrupt citizens unable to pay lawyers' fees to try to prove their innocence.

Remember Richard Jewell? To refresh your memory, Jewell, 33, was working as a security guard at the 1996 Olympics in Atlanta. The Atlanta Police received a message saying, "There is a bomb in Centennial Park. You have 30 minutes." Jewell was working in Centennial Park.

At 1:20 AM, a pipe bomb exploded near a huge sound-and-light tower erected by AT&T, which had become a major attraction for visitors to Centennial Olympic Park. The blast killed two people and injured 111 others.

Jewell was the hero of the incident. He was responsible for finding the backpack that had contained the bomb, and for getting people out of the immediate area, probably limiting further death and injury.

But four days after the bombing, news organizations reported that Jewell had become the main focus of the investigation as a potential suspect in the bombing. At the time, Jewell was unknown to authorities, and a lone-wolf profile made sense to FBI investigators after being contacted by his former employer at Piedmont College.

Though he was never arrested or charged with any crime, Jewell was named as a "person of interest." His home, where he lived with his mother, was searched and his background exhaustively investigated, all amid a media storm that had cameras following him to the grocery store. Eventually, Jewell was exonerated and once again hailed as a hero. The media circus pursued Jewell everywhere for weeks, until Eric Rudolph pled guilty to carrying out the bombing attack at the Centennial Olympic Park, as well as three other attacks across the South.

After his exoneration, Jewell filed a series of lawsuits against the media outlets that he claimed had libeled him - primarily NBC News and The Atlanta Journal-Constitution - and insisted on a formal apology from them. Jewell's attorneys contend Piedmont College President Raymond Cleere called the FBI and spoke to the Atlanta newspapers, providing them with false information on Jewell and his employment there as a security guard. Jewell's lawsuit accused Cleere of describing Jewell as a "badge-wearing zealot" who "would write epic police reports for minor infractions." Eventually, Jewell received an apology from the FBI.

Toward the end of the incident, broadcast host Bill Press discussed Jewell on television. Turning to his guest Larry Sabato, professor of government at the University of Virginia, he commented, "He [Jewell] did a pretty good job of destroying his own reputation first, didn't he, Larry?"

To which Sabato replied, "You know, Bill, that's a great example of what happens when some poor soul, and I'm going to assume he's innocent until it's proven otherwise, some poor soul wanders into the media spotlight, because that's what happens. I remember the fellow who deflected the gun from President Ford out in California in 1975 and he saved the president's life and within 48 hours, a newspaper had revealed to his family, who didn't know, that he was gay."

Unlike Jewell, Steven Hatfill was never seen as a hero. But, just as Jewell's life had been turned upside down by law enforcement, Hatfill's also became a living hell.

Steven Jay Hatfill, now 60, is an American physician, virologist and bioweapons expert who underwent what was considered by many to be a trial by media, which took a great toll on his personal and professional life. After eight months of pressure from the media and amateur detectives, the US Department of Justice (DOJ) identified the former government scientist as a "person of interest" in its investigation of the 2001 anthrax attacks. He was put under round-the-clock surveillance.

FBI searches of his apartment in July and August 2002 were well attended by journalists, many of whom had been pointing at Hatfill for months.

Hatfill later sued the government for ruining his reputation, a case that the government settled for US $5.8 million. He also filed lawsuits against several periodicals that had pointed to him as a figure warranting further investigation.

The situation became even more tragic when FBI and DOJ officials later blamed the anthrax deaths on another government scientist, Bruce Edwards Ivins, whom they concluded had acted alone. Ivins committed suicide. The case remains unsolved.

Whether they occur in court or elsewhere, the abuses described here are miscarriages of justice. Politicians and law enforcement agencies depend on a supine press corps to circulate their stories all over the world in minutes. With the help of a media more skilled in stenography than in reporting, unsubstantiated rumors are printed and broadcast as facts. If further investigation is done by the media (which is rare), corrections often appear, if at all, long after the event. Yet they can rob you of your reputation before you have a chance to respond.

To be the target of a media blitz is tantamount to being found guilty of something. When a politician or an overly zealous prosecutor tags you as a dangerous terrorist before you ever go to court, you might as well not go to court. Such is the fear of terror that has pervaded our country since 9/11 that Congress, in its infinite wisdom, has even successfully dictated where and how to try those accused of terrorism.

Is there anything ordinary citizens can do about these kinds of events? Unfortunately, not much. We should be urging our political leaders to choose their words more carefully and to show more respect for the rule of law. We should reign in overzealous prosecutors who see their mission in life as collecting convictions. And we should be campaigning in Congress for substantial revisions in the "material support" law.

Politicians, judges, prosecutors and lawmakers need to demonstrate that they know the difference between governance and show business!

Ordinary citizens can't censor what politicians say. And judges could do a far better job of censoring what lawyers say (or fail to say) in court.

Perhaps the simplest target for irate citizens is the "person of interest" designation. The phrase has no legal meaning; it is administrative verbiage that law enforcement uses to show the public it's working hard to find the guilty.

That phrase should be expunged from the Justice Department's lexicon.

And that's well within the president's prerogatives.

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