This will be a familiar story to anyone who has ever represented a criminal defendant famous enough to make the news.
You client is convicted at trial, or pleads guilty. You work to put together a convincing presentation for sentencing that will humanize your client — help the judge see him (or her) as a human being, as someone whose offense is only one part of a larger life, as someone who has done good things as well as this bad thing. You ask friends and colleagues to write letters in support of your client. If your client is like most people, his life has been a mix of good and bad; some people admire him for some of the things he's done, and he's treated some people decently. Your client's friends and colleagues write letters in support, helping put his actions in the context of his whole life. Because they are human, their memories of your client are emotional and idiosyncratic. In their letters, they tell stories not only of the big things (support for family and friends, charitable work, dedication to the job) but the small, silly things that tend to touch us as people. You file the letters as part of your sentencing brief.
Then the media reads the sentencing brief, picks out one of the small and inconsequential things mentioned by a supporter, and runs it as the sensational headline, suggesting that it is the entire premise of your sentencing position.
Today's example: disgraced former Congressman Jesse Jackson, Jr.
Jackson, a deeply flawed and troubled man, resigned and pleaded guilty to a federal crime for misuse of campaign funds. It's frankly ridiculous he was reelected, and he clearly doesn't belong in Congress, and by his own admissions he abused his position and broke the law, and must face the consequences.
But now he's facing the federal criminal justice system, and his lawyers are trying to show the judge the whole story of who Jesse Jackson Jr. is. They've presented evidence of his family life, his work in Congress, his mental problems, his whole life. They've submitted letters from people who know and like him talking about dozens of topics.
What topic gets play?
A single colleague — Rep. Marcia Fudge (D-OH) — mentioned that he was an enthusiastic participant at karaoke nights. She did so in passing in the context of praising his life and work. Suddenly, though, that silly detail is the story: the media is framing it as "defense seeks lower sentence for karaoke."
Talking Points Memo: Congresswoman Wants Jackson’s ‘Karaoke Nights’ Considered In Sentencing
Chicago Tribune: Ohio lawmaker urges mercy for Jackson Jr., cites karaoke skills
Los Angeles Times: Ohio lawmaker urges mercy for Jackson Jr., cites karaoke skills
Notice that this is not just a matter of media political bias. Nominally "progressive" websites, and papers with a liberal sensibility, reliably go straight for the karaoke headline when talking about a fallen Democratic Congressman. Context doesn't sell; silly bits ripped from context sell.
Insipid sensationalism is an old story. It was old in 1979 when the media lied to the public about "The Twinkie Defense" in Dan White's trial for murdering Milk and Moscone.
Insipid sensationalism is what sells. Insipid sensationalism is why we have, too often, journalists who care more about maintaining relationships with law enforcement than questioning law enforcement. Insipid sensationalism is why we get misleading or incomplete reporting about criminal justice, little attention to horrifying problems in the system, and a surfeit of detached amusement where there should be outrage.
Some day soon one of the journalists who wrote one of the karaoke stories above will try to be taken seriously writing something serious and frowny about criminal justice. Please join me in inviting them cordially to shut the fuck up.
Last 5 posts by Ken White
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- Ninth Circuit Imposes (Some) Limits On Cops Yanking Things Out of Your Ass - September 30th, 2015
- Arthur Chu Would Like To Make Lawyers Richer and You Quieter and Poorer - September 29th, 2015
- In Roca Labs Case, FTC Takes Novel Stand Against Non-Disparagement Clauses - September 29th, 2015