FIRST, THE END
Later in this blog I’m going to tell you about two amazing conversations I had with a police officer and a prosecutor who both said about the same thing. They were a couple of the most influential off-the-record conversations I’ve ever had. They deeply influenced my approach during the many years I spent working as a crime and courts reporter. You’ll see how it all ties together later. 
But first I want to follow-up on why I am so disturbed about a recent News Tribune editorial regarding state auditor Troy Kelley. And again, while it looks like the news is bad for Mr. Kelley – I maintain that journalists, in particular, have to take extra care not to rush to judgement – even when EVERYBODY else is.
OUR JUSTICE SYSTEM
There is a reason the words, “police say” are in the sentence, “Police say Jones broke into the home, hit the homeowner with a pipe, and ran out the back door.” The reason those words are in the sentence is that what the police are saying is, in fact, nothing more than a claim. When journalists forget that, they are betraying one of the most fundamental tenets of their profession.
Now, I have some disturbing news for you: a half-pound of cocaine can be found under the fender of your car at any time. A gig of embarrassment or criminal activity can be “uncovered” on your computer’s hard drive any day of the week. The judge relies on the sworn testimony of law enforcement to issue a warrant. The only barrier between where you stand now, as a person with relatively few problems, and an arrest where the problems start immediately – is your relative anonymity, and most importantly, the integrity of police and prosecutors. Integrity – a commitment to justice – is the only thing that separates us, from all the other legal systems we see around the world where prosecution is a (more) readily accessible tool often used to persecute enemies, obtain financial reward and gain or retain power.
In our system, there are safeguards in place. Rules about the chain of custody of your seized car or computer help. Supervisors are tasked with questioning arresting officers and prosecutors about the merits of their case. Judges are supposed to intercede when they feel the process has gone off the rails. But it doesn’t always work. Sometimes you can run into a cop with an agenda and a lab worker happy to back him up. It does happen. Journalists need to remember that every time they sit down at the keyboard – even though when it comes to dealing with the criminal element in this broken country, it’s not long before one day feels like another, which feels like another. Police and journalists are sick and tired of being sick and tired. Every dirtbag has a story. I get that. I get that. Still however, it is our JOB to treat every story, every claim, every case – with the skepticism our system demands.
But let’s remember: the good news is that in the U.S., the vast majority of police officers and prosecutors are honest, hard-working, moral people. They MUST be for our system to work. But they are no more perfect than the people working in any other profession that relies on highly ethical behavior. There are mistakes, misunderstandings, deliberate misbehavior, outright corruption, and mean spiritedness. Those are all instances where the problems start for “the accused.”
The day after I wrote my first blog on the News Tribune’s editorial, twenty years of FBI forensic prosecutions came under the microscope. It’s just one report in a long, long, long list of problems, conflicts, personal failings and institutional corruption that should give us all pause when rushing to judgement. Any one of us could very easily be the next William Jewell. That is why I objected so vociferously to the paper’s call for Kelley’s resignation; it was pegged solely to the facts that (1) it was the feds who were pressing charges, and that (2) they had spent a long time building their case.
Listen. If you are arrested or indicted, the full weight of the justice system is used against you. The police gather evidence to convict you. Prosecutors build a case to convict you. It’s an adversarial system and the drain on your time and finances starts immediately, and the system knows it.
Journalists MUST remember this, and act accordingly. I applaud papers like the News Tribune for not printing names until charges are filed. An arrest is sufficient for many news outlets to print names, and I think it’s wrong. I have also always been deeply disturbed when the media reports on things like confessions or eyewitness ID’s. Or how about the “fact” that a suspect is, “Cooperating with police?” That is often a message being sent to co-conspirators – that one alleged bad guy is in the process of rolling over on his associates. Please understand that from day one, police and prosecutors start communicating their case to co-conspirators and the jury pool immediately, and it’s up to the media to discern that.
MY CONVERSATIONS
So now I circle back to my conversations with a cop and a prosecutor. They happened at different times and in different places, but the message was essentially the same.
Both were expressing frustration that in the cop’s case, the local prosecutor, and in the prosecutor’s case, the region’s U.S. Attorney – would not let them move forward with cases they had built. Both complained bitterly about how the justice system was failing and that bad guys were going to go free because the next step in the system wouldn’t let them move forward. Both indicated that all they wanted was, “Exposure to the system.”
All I heard though was that they wanted to inflict the pain the system could mete out even though their cases were a little iffy.
They rightly saw the mere exposure to the system as a punishment in-and-of itself, and that if a jury were to someday actually find their target guilty, well – all the better. A win on top of a win.
What you need to know is that just making an arrest, or filing charges, or issuing an indictment, or going to trial, or being forced to settle or plea bargain – is an immense burden on most private citizens. Just getting “exposed to the system” is a substantial punishment that can be meted out without ever having to pass the “beyond a reasonable doubt” test.
Police know it. Prosecutors know it. Journalists should know it.
DON’T MISREAD THIS
This isn’t some sort of a screed against law enforcement. I am as anti-crime and anti-dirtbag as they come. In fact, just last year in this very space I put a lot of time and personal capital into defending a local detective against a local libel machine for the very same reason: that the use of words against him was based on nothing more than the claim of another – and that calls for his accountability were at least premature, and most likely completely unfair.
Same goes for people like Troy Kelley. If he’s guilty – take his money and lock him up.
But until then, professional journalists need to take care when it comes to their writing. Words are our only currency, and they need to be spent wisely when it comes to matters of reputation.
Exposure to the system is bad enough, and it’s not sufficient to come to judgement.
