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
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
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
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.