No Fair Trials for Cops?

The Presumption of Innocence Gets Lost

A trial in which the jurors have been persuaded in advance, by outside influences, that they have a duty to reach a certain verdict is not a trial. It is no different from the staged proceedings of totalitarian societies where there is the illusion of a fair trial, but the predetermined outcome follows a script.
--from the unanimous decision of the Appellate Division, First Department, to remove the trial of the four police officers accused of murdering Amadou Diallo from the Bronx to Albany

On November 28, I was astonished to see a full-page ad in The New York Times by the American Civil Liberties Union that showed 41 bullets piercing the Miranda warnings given to a suspect in a criminal case.

At the bottom of this graphic accusation against the four cops indicted for murdering Amadou Diallo, the ACLU added this message to the readers, including potential jurors in the case:

"On February 4, 1999, the NYPD gave Amadou Diallo the right to remain silent. And they did it without saying a word. Firing 41 bullets in 8 seconds, the police killed an unarmed, innocent man. Also wounded that night was the constitutional right of every American to due process of law. Help us defend your rights. Support the ACLU."

The foundation of our judicial system is due process—fairness. Included are the presumption of innocence and a fair trial. Supreme Court Justice William O. Douglas once said that "the history of liberty is the history of due process."

In this ad, the ACLU clearly and indefensibly violated the due process rights of the four cops indicted for the murder of Amadou Diallo. When the ad appeared, they had not yet been tried, but the ACLU, convicting them, unashamedly contributed to the prejudicial pretrial publicity that has caused their trial to be removed not only from the Bronx, but also from New York City.

The ACLU was far from the only cause for the change of venue. The pressure to convict in this city rivals the poisonous climate that caused the Supreme Court in 1996 to give a new trial to Dr. Sam Sheppard, who had been convicted in Cleveland of murdering his pregnant wife. For weeks before the trial, the city was inundated with "proof" of his guilt, and a front-page newspaper editorial asked: "Why Isn't Sam Sheppard in Jail?"

The ACLU ad in The New York Times was cited by the Appellate Division as one of the reasons it decided to move the trial of the four cops to Albany. That city, however, is the wrong place demographically. Less conservative and white venues should have been considered by the appellate court. For instance, Rochester or Syracuse.

Said the court: "The ACLU advertisement is particularly noteworthy. . . . It demonstrates that a long established organization formed for, among other reasons, the protection of the rights of the accused, has publicly prejudged the guilt of these defendants."

The court might also have cited ACLU policy no. 229:

"Attempts by members of the general public to influence the decision of a court of law pose a conflict between the rights of freedom of speech and assembly on the one hand and due process on the other.

"Any attempt, in any form, intended or calculated to influence a jury should be prohibited. The ACLU similarly opposes threats (expressed or implied), mass or organized letter-writing campaigns or telegrams . . . and mass picketing intended to influence the decision of a judge or appellate court." (Send a copy to Al Sharpton, organizer of the huge demonstrations at Police Plaza.)

In the Diallo case, the Appellate Division also noted a February 12, 1999, column in the New York Post: "The Diallo Case: Bring in the Feds: How Could Something So Horrible Happen to Such a Decent Man?" (An echo of the Cleveland newspaper editorial in the Sheppard case.)

The judges added, as examples of prejudicial pretrial publicity, the March 8, 1999, cover of The New Yorker magazine which, said the court, "consisted of a cartoon of a smiling police officer shooting at human cutout figures in a shooting gallery advertising '41 shots, 10 cents.'"

For a quarter of a century, I wrote for William Shawn, then editor of The New Yorker, who would not have permitted that cover. Nor, I think, would Robert Gottlieb, who succeeded Shawn and whom I also wrote for both at Knopf books and The New Yorker. In this instance, the magazine's current editor, David Remnick, was infected by his own predecessor, Tina Brown, and her obsession with creating a "buzz" in each issue that people would talk about.

But the barrage of prejudicial pretrial publicity was much more pervasive than those examples.

As the Appellate Division said: "The prospective jurors of Bronx County, and the rest of New York City, have been subjected to an endless repetition of the notion that the two undisputed facts—namely that 41 shots were fired and that Mr. Diallo was unarmed—conclusively establish the defendants' guilt and are dispositive of all possible factual and legal issues.

"This idea has been repeatedly stated in the form of quotations from prominent persons, or as editorial comment by publications and their columnists. The opinion as to defendants' guilt is routinely accompanied by assertions that the defendants were motivated by racial prejudice. The few voices reminding the pool of prospective jurors of the sacrosanct right of an accused to the presumption of innocence have been drowned out by this incessant drumbeat of prejudicial publicity."

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