Fair trials are the jewel of Anglo-American governance. An independent judiciary is a necessary, though not sufficient, condition of good government. If courts could have established, impartially, whether or not Mohammed Morsi had breached the Egyptian constitution, as his critics claim, perhaps there would have been no coup. But, in the era of not only mass competitive media, but niche and social media too, how do we guarantee fair trials?
Could any member of the George Zimmerman jury have entered the court without having heard incomplete and biased accounts of the events leading up to Trayvon Martin’s death? Perhaps they even heard disgraceful NBC account which claimed that Zimmerman said to the 911 despatcher “he looks suspicious . . . he looks black”. This was one of the most appalling pieces of journalism of recent years. It was a deliberate attempt to deceive which ran the risk stirring up racial tensions between African Americans and Hispanics in Florida and nationwide. The three dots, by the way, omit the fact that the despatcher asked Zimmerman if the person was “black, white or Hispanic”. In this context the wording suggests no racial profiling, indeed it implies that Zimmerman was not even sure of Martin’s race.
But, even worse than the media, what if the president was biasing the trial? He told the media that if he had had a son, he would have looked like Trayvon Martin. Well, possibly, but the way Martin looked was not at issue in the trial.
The president – a former professor of constitutional law, let’s not forget – has also been accused of complicating sexual assault trials in the military. He stated that military personnel who commit sexual assault should be “prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged.”
The New York Times reports that this is creating considerable difficulties for prosecutors and a bonanza for defense attorneys. Military law recognizes the concept of “unlawful command influence”, when a senior officer gives commands which appear to direct a specific outcome at a court martial. The president is commander-in-chief, so his orders trump any guidance a judge-advocate may give in a trial.
The Times focuses mostly on sentencing and reports that a Navy judged ruled that two defendants could not be punitively discharged, if convicted, specifically because of the president’s words. So there is already one example of his words having the exact opposite effect to the one he intended.
But the Times also notes a case that was dismissed because of the command influence issue. The president’s words could be taken as an instruction to convict, which would undermine any possibility of a fair trial at all, and not merely at the sentencing stage. His words, granted, were limited to the guilty. But how would you interpret such a command as a juror faced with a defendant you thought was probably guilty? “Probably guilty” is not the standard in Anglo-American justice. Such a juror should not convict. If the commander-in-chief has suggested that a juror should convict in these circumstances he has denied any realistic possibility of a fair trial. By seeming to threaten the innocent, he has place barriers in the way of convicting the guilty.
For a professor of constitutional law to so misunderstand the traditions of criminal law and the power of his own words is baffling.
Quentin Langley is a Senior Lecturer in Marketing at the University of Bedfordshire Business School as well as a freelance columnist published in the UK and all parts of the US. He blogs on social media and crisis communications at brandjacknews.com