Libel, imprisonment, or execution: where prosecution is the public concern, the game of social-media Russian roulette is as random as it is dangerous. Ultimately, a defendant’s fate may be determined by a tweet or a Facebook post. Innocence, guilt, these are only trifling concerns.
Just so with Bill Cosby, whose lawyers filed a motion this week objecting to his renewed prosecution, on the basis that a ten-year delay in criminal charges violated his right to a fair trial. Cosby’s objection is one that may become more common, as his defense team and other attorneys acclimate to a persecutory social media climate uninterested in careful inquiry.
Ideally, in situations like this case, prosecutors will abide by the ethical canon that forbids public statements “likely to increase public condemnation of the accused.” In practice, this ethical restraint is seldom exercised.
The solution is for state, city, and federal prosecutors’ offices to institute bans barring their attorneys from using social media.
Why the absoluteness of a complete ban? For the same reason Batson strikes and Brady violations exist: to stack juries based on race, hide evidence from the defense, or taint the public’s view so they’re incapable of objectivity, can irreversibly contaminate a courtroom. As Justice Robert Jackson aptly observed, “[t]he prosecutor has more control over life, liberty, and reputation than any other person in America.” That sort of power shouldn’t go unchecked.
Other figures, like judges, are severely limited in regards to political activity because of their institutional neutrality. But prosecutors aren’t neutral. Practically speaking, most chase the twin goals of winning elections and maintaining high conviction rates. When those goals overlap, justice may emerge stillborn.
There’s an intuitive rationale for the proposed proscription as well. Because headlines pre-frame people’s view of an issue especially on social media, it is important that the juror’s first impression of a case is in the courtroom. One Stanford University study shows the power language has in criminal justice, with more people demanding a crackdown on crime when termed a “beast” as opposed to a “virus.”
Be it “beast” or “virus,” some words possess a poisonous connotation.
Consider that social media is of a different tooth and stripe than the media animals of the past. It is decidedly more vicious. And, the audience for that viciousness is an electronic coliseum populated with billions of spectators. Where prosecutors of the past were constrained by the reach of a local paper’s printing press and the sonic range of the press-conference podium, the vastness of social media brooks no such delimitation.
We can see how this massive digital arena is constructed by looking to New York. Manhattan has more people on Twitter than any other American metropolis, with users obsessively updating their feeds. Add to that the fact that most active Twitter users are nearly demographic clones of New York City jurors, and you’ll see that the people most likely to be influenced by the rhetoric of Manhattan’s chief federal crusader are the same ones sitting in the jury pool.
Other media forms are just as potent. By way of illustration, Facebook generates nearly five billion likes every day, more than enough publicity power to pass judgment on a defendant long before he’s been indicted.
Which is exactly what happened to Bill Cosby.
More than ten years ago, former Montgomery County, PA, District Attorney Bruce Castor declined to prosecute Cosby for sex crimes because he thought the evidence was weak, saying, “In Pennsylvania, we charge people for criminal conduct. We don’t charge people for making a mistake or doing something foolish.”
But that was before the epoch of digital indignation. Steadily, outrage accumulated until social media was alight with recriminations, with the mob demanding that Cosby be prosecuted.
One prosecutor obliged the mob.
In a feat of calculating, craven political ambition, Kevin Steele, Bruce Castor’s opponent in the election for District Attorney, began to run on a promise to prosecute Cosby. And although defense lawyers have protested Mr. Steele’s tabloid-cum-Twitter revival of Cosby’s prosecution, Mr. Steele has a campaign promise to keep. So, no recusal.
Hereafter, a man’s freedom goes in the debit column, set against election prospects in the politician’s ledger. That isn’t just ethically suspect. It’s dangerous.
This all begs the question: Why would prosecutors even bother to fight for the right to so gratuitously air their personal opinions? For the simple fact that surrendering Twitter or Facebook means giving up a massive source of electioneering power, and a great source of communicative power generally.
What, then, would we suffer if prosecutors were banned from social media? It’s hard to say. Prosecutors would still be able to issue press releases, so the public might hear their take on a controversy. And none of their courtroom power would be diminished.
The attraction of career-conscious prosecutors to the tool of social media is hyper-magnetic. But if the only tool one has is a hammer, everything starts to look like a nail. And so adjudication, an art-form (but not a science) that requires the precision of surgery and the delicacy of sculpture, becomes an exercise of destruction instead of remedy.
Alex Grass is a Young Voices Advocate and a student fellow at the Floersheimer Center for Constitutional Democracy at Cardozo School of Law. He lives in Brooklyn with his wife and two kids.
