Publicity vs. the Plea
Dominique Strauss-Kahn: Publicity and a Plea Deal
By Kendall Coffey, The New York Times
May 26, 2011
As the case of Dominique Strauss-Kahn reminds us, pretrial publicity is never a defendant’s friend and is usually a crushing adversary. There is no presumption of innocence in America’s court of public opinion where accusations are embraced, denials are dismissed and few open minds await the day in court promised by our Constitution.
The impact on future jurors has been documented by empirical studies confirming the common sense notion that negative publicity contributes to negative results. Even though trial judges try hard to minimize that damage, as one Supreme Court quoted a candid juror, “You can’t forget what you see and hear.”
Even before trial, critical rulings are decided by judges, many elected, who are fair enough to try to ignore the condemnation outside the courthouse but human enough to carefully follow media reports. At times, the result can seem to be rulings that are less susceptible to criticism and more hospitable to the prosecution.
And yet, the vast majority of criminal cases are not decided by either judges or jurors, Since more than 90 percent of criminal cases are resolved by plea bargains, it is the prosecution office, mostly headed by elected D.A.s, who are the real decision-makers. And with the public watching closely and even vengefully at times, agreeing to a “lenient” deal is about as popular for prosecutors as supporting a tax hike is for a legislator.
Irrespective of the merits of the case, the likelihood remains that at some point the top-tier defense team will discuss a possible plea with prosecutors. And if they do, public opinion, contaminated by perp walking and salacious reports that no judge would allow as evidence, will be an uninvited guest to that negotiation. The fact is that whatever happened on that Saturday afternoon, this defendant has already lost in one venue and it may be the one that matters the most.