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Joel Cohen

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Trial by Journalistic "Opinion"

Posted: 12/25/11 01:53 PM ET

O.J. Simpson, John DeLorean, Claus von Bulow and Casey Anthony. In each of these cases, the public (aroused to quick judgments by reporters and headline writers on deadline) would have convicted in a heartbeat. Still, each of these defendants was acquitted. How? How is it that those juries did not -- unanimously, as the law requires -- see the case the way the rest of us did?

Some would argue that those juries were simply stupid. Others that the jurors rightly put aside the sometimes hysterical press coverage and instead decided the case based only on what they heard in the courtroom. Either is possible -- the System isn't perfect by a long shot.

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The real question, though, is whether the System under which we have operated since the Magna Carta has become more vulnerable today. Meaning, can jurors in high-profile cases today put aside the onrush of "published" opinions that may infect them in ways that decrease the likelihood they will be able to "stand on the ramparts" as did Henry Fonda's "Juror #8" character in 12 Angry Men?

We all know that internet advertisements hugely impact us -- i.e., we buy "stuff" in droves as a result of having seen the subliminal displays lodged in the interstices of an internet page. With controversial criminal cases, do the subliminal internet musings of op-ed contributors subtly persuade us even if we don't realize it? Perhaps.

Let's look at Sandusky for some perspective, although that case is obviously still light-years from a courtroom verdict. Sandusky's lawyer chose to waive a preliminary hearing and proceed directly to trial, or, when that day comes, maybe plead guilty. Of course, in the meanwhile, his lawyer maintains that Sandusky "waived" solely because of the prosecutor's eleventh hour offer that, if armed with a waiver, he wouldn't ask the court to raise Sandusky's bail. Or perhaps it was because Sandusky's lawyer finally recognized that, in such a hearing, the world would have heard just one side of the horrible story -- not the new emerging defense from one of his lawyers, under which he now says it was only hypothetical that Sandusky was actually trying to teach underprivileged kids the value and means of proper showering.

Yes, Sandusky has been called a coward on the internet for opting out of a hearing. However, strategically, it may have been the right decision for his lawyer to have made. Despite Sandusky's public pronouncement that he will fight this case "for four quarters," he may ultimately plead guilty if he harbors any hope to see a single day of freedom before he dies. A public airing of this evidence would not have boded well for him. Just imagine what the Pennsylvania Attorney General would face if she offered a guilty plea deal offering less than life imprisonment after the public has actually seen and heard what currently is only alleged. Try to visualize the impact of these young men having testified while wiping aside their tears over what they allege they have had to endure.

We don't weep for Sandusky. As do all "commentators," we have the right to "personally" convict him based on our own idiosyncratic views of the case. But why has the public convicted him at this early stage? The reports, of course, are terrible. However, the public's disdain this time isn't based solely on fact reportage by traditional journalists who attend court, observe proceedings, interview sources, and report the interviewees' disclosures in compliance with sometimes demanding sourcing rules (depending on the publication). Still, even tabloid journalists at the low end of the food chain obtain quotes from experts in the field to support and buttress their stories and the story lines.

Conversely, internet "journalists" -- i.e., bloggers -- quietly sit at their keyboards far away from any courtroom. Some never speak to a witness -- or possibly anyone. Yet they have the capacity to stoke the flames of public recrimination against a defendant simply by posting robust "writing" (not reporting) about things they only "know" through the internet. These bloggers not only have the capacity to influence public opinion; they have the capacity to influence official action by prosecutors and judges who must approve guilty plea deals. How many prosecutors and judges will stand up to the internet drumbeat? Not many, and maybe Sandusky's seemingly over-his-head lawyer may have recognized that reality.

America is indeed a land of free speech and press. But, psychologically, people tend to believe what they read in black and white. If someone writes or blogs on a website, rather than merely offer his opinion at the water cooler, he and his musings promptly gain enormously more approbation than may be warranted. Ten million people reportedly "follow" Ashton Kutcher on Twitter. Why? What if Kutcher tweets that Jerry Sandusky is "Not Guilty"? Kutcher's say-so alone could carry the day for millions of people, even though Kutcher may know absolutely nothing other than what he read online.

True: O.J. Simpson was acquitted despite powerful evidence against him and an unprecedented and angry mob that attended his trial. But remember this: in the era of the internet, the Simpson trial was a lifetime ago, before the blogosphere. When Simpson was tried in 1995, no one -- certainly not a nobody -- could stand in his apartment, tapping at his computerized bully pulpit, and share his "pearls" with literally the entire world just by hitting his "send" key. No one, then, could assert (even anonymously) to the entire world -- including the Simpson jury pool -- that O.J. also was a stealth getaway driver for Lee Harvey Oswald in the Kennedy assassination, as I have just done (save for the anonymity). Indeed, no matter how ferociously I might try to retract this false impression I have created, someone down the chain of Google search infamy, a reader would encounter my saying that O.J. was a getaway driver for Lee Harvey Oswald. The shelf life for what is "reported" on the internet is eternal. What one reads on it is almost incapable of erasure: it is indelibly etched in the collective memory of those who have had the ability to turn on a computer. My name, along with O.J.'s and Lee Harvey Oswald's, will always be there, conjoined with the others, available to anyone without any need for expertise in encryption sciences.

If through some perverse "miracle," each Sandusky "victim" were to honestly retract his testimony in open court, testifying, e.g., that a Big Ten rival football coach put each up to falsely accusing Sandusky in order to deflate the Penn State football program, it would simply be too late. Fifty years from now, Sandusky would still be a child rapist "convicted" by the world.

Yes, given the public outcry, Sandusky is an unsympathetic case in which to raise this issue. But it is an issue that potentially faces every single defendant who is well enough known to warrant reportage. Just Google your own name, if it has ever appeared on a website, and see what pops up -- see how indiscriminately and (perhaps) offensively it connects you to things that may truly surprise you, and criminal episodes that don't involve you. It's sort of like playing telephone -- virally gone wild. And, bear in mind, this is without you every having been charged with a crime.

By the way, although you won't read this too often on the internet -- this is just my opinion!