A prime time for justice

Issue January 2015 By Marsha V. Kazarosian

You cannot turn on the TV or read the paper without seeing something about Dzhokhar Tsarnaev or Aaron Hernandez. Both are defendants in notorious criminal cases that hit close to home.

Tsarnaev is a college student accused of perpetrating an unspeakable tragedy: the Boston Marathon bombing, a heinous act of terrorism that impacted countless victims and families, many of whom are still struggling today. Hernandez is a former New England Patriot facing multiple murder charges, but the notoriety of his case is tied more to his fame as a local sports star than the no-less-senseless loss of life.

They are different cases to be sure. But what they share in common is that, as of press time, both are going to trial this month.

In some ways it seems as if both Tsarnaev and Hernandez have already been on trial with the wall-to-wall media coverage surrounding their cases since their arrests. We saw a similar media frenzy in 2013 before, during and after the federal trial against James "Whitey" Bulger. We've had no shortage of high-profile cases of late. Each time a case gets wide exposure, it offers a showcase for our system of justice. It is a good opportunity for people to see how the system works, to understand the onerous nature of the process, and to be exposed to the grave consequences and duties shouldered by both sides of the "v." But it is also important to understand the significant role that the media has in how these cases are presented to the public.

To be sure, the 24/7 media cycle can have dangerous consequences. Speculation, preconceived notions of guilt or innocence, and rushes to judgment are poisons to our system of criminal justice. How can one ignore the recent revelation from Rolling Stone magazine, which cast doubt on the veracity of its own investigative reporting about an alleged rape at a fraternity house at the University of Virginia? Similarly, consider the Boston Marathon bombing victim whom Glenn Beck wrongly accused of being tied to the bombing (and has since filed a defamation suit against Beck). These may be extreme examples, but they nonetheless illustrate the dangers.

As lawyers, we can - and often do - play a role in keeping cases from being overly sensationalized. Any lawyer who has ever served as a legal commentator knows that one of the reasons we're called upon by the media is to put things in proper perspective and to educate the public about the law and process.

But when you represent a high-profile client, your role often expands beyond traditional lawyering; you're not only an advocate, you're a public relations manager, you're a spokesperson, and  you're the buffer against conjecture and prejudice.

It's hard enough for any defense lawyer to combat preconceived notions of a client's guilt, but that is exponentially more difficult when the case becomes a media frenzy, and the public becomes the judge and jury. When the matter is ready for trial, it is extremely difficult to identify jurors who have not already been inculcated with information and ideas about the case. This is where voir dire is vitally important.

The prosecutors and defense attorneys involved in the Tsarnaev and Hernandez cases know these challenges already. And now that both cases are entering the trial phase, there are more challenges on the way. But trials are what these lawyers have prepared for since the moment they were retained. Trial is when the outside talk should take a backseat to the process inside the courtroom, when the rule of law should speak louder than that noise and when the system should be at its best.

For the media who will ultimately report about interim rulings about evidence or that may appear to favor one side over another, the responsibility to refrain from emotion is paramount. Only the jurors hear and consider the evidence as presented. Only the judge has the tools to weigh and rule on the legal issues. No one else can substitute judgment, and if anyone attempts to do so, they do us all a disservice.

That is not to say that differences of opinion or perspective should not be offered. They should. But they should be offered with integrity and temperance, because the stakes in each of these cases are extreme for the defendants as well as the victims. And as justice is about to get a primetime spot, nothing should contaminate that process.