THE BLOG

What to Watch for in the FIFA Case, Part 1: Pretrial Publicity

06/05/2015 12:18 pm ET | Updated Jun 05, 2016

This is one of a series of posts discussing what the FIFA case might tell us about the American criminal justice system. Click here for the introduction.

The day the FIFA cases were unveiled, government officials made a series of sweeping public statements. Attorney General Loretta Lynch gave a press conference describing what the defendants had done -- they had, for example, "corrupted the business of worldwide soccer to serve their interests and enrich themselves." Other officials chimed in, stating that "today's announcement should send a message that enough is enough," and that "when leaders in an organization resort to cheating the very members that they are supposed to represent, they must be held accountable." The consistent theme was a mixture of congratulations for the government team and condemnations of the defendants.

Are we OK with this?

Remember where the FIFA case stood at the time of these statements. The initial accusations had been made, but there had been no determination of whether they were true or whether the accused targets were in fact guilty of anything. (The fact that a grand jury had issued an indictment is meaningless; today's grand jury is essentially one stage of an assembly line process directed entirely by prosecutors. If you doubt that, read the FIFA indictment and ask yourself if it looks like something the grand jurors came up with on their own after an independent, even-handed look at the evidence.)

In theory, an indictment is the beginning of a process in which the government attempts to prove a case against a defendant, who is presumed innocent and who is supposed to have a full and fair opportunity to present a defense. That process may end up demonstrating that the government's accusations were unfounded or exaggerated -- something that prosecutors should be acutely aware of in light of recent faceplants such as this one. So why do prosecutors continue to issue these premature, inflammatory proclamations, and why do we continue to accept this practice?

This type of inappropriate pretrial publicity has serious consequences. The most commonly cited one is that of influencing potential jurors, and that's indeed a real concern. Anyone hearing or reading the prosecutors' public statements could be forgiven for assuming that guilt had already been clearly established. (The supposed cautionary statement 12 paragraphs into the press release -- that "the charges in the indictment are merely allegations, and the defendants are presumed innocent until proven guilty" -- was presumably about as effective as this school district's letter asking students not to Google their teacher's recently disclosed adult videos.) And it's an established fact that exposure to such publicity can seriously compromise the objectivity of even those jurors who later claim not to have been affected by it.

But that isn't the only problem with this type of publicity. These public denunciations, coupled with the strongly implied message that it's a bad idea to get on the wrong side of the prosecutors and agents, can scare off potential defense witnesses and others who might otherwise be willing to help the targets defend themselves. They also ensure permanent reputational damage, even for defendants who end up being legally exonerated. Given the way the government conducts its pretrial publicity campaigns, it's fair to assume that these effects aren't just incidental byproducts -- they're deliberate elements of an overall "shock and awe" approach to large-scale federal prosecutions.

These issues are exacerbated by the fact that, as the prosecutors know, the defendants and their representatives are largely unable to mount any significant public counterattacks. Because prosecutors can find a way to take advantage of virtually any statement made by a defendant or his representative, defense attorneys routinely advise their clients against responding to the government's public attacks. Of course, even those defendants inclined to fight back will be at an obvious disadvantage. Nothing they can do will match the impression created by a set of high-ranking government officials excoriating them while lined up behind the ubiquitous DOJ seal -- especially when the corresponding news stories are accompanied by the inevitable "perp walk" footage.

It doesn't have to be this way. Although the First Amendment and the strong American free press tradition make it difficult to put limits on private media actors, the government doesn't have to pile on. It's not that hard to imagine a system in which, if the government believes some sort of public statement is necessary, it announces the charges that have been filed and notes that the case will proceed toward a determination. Then, if the prosecutors legitimately establish a defendant's guilt through a trial or guilty plea, they can say what they want.

At that point such statements would be based on actual determinations of guilt instead of untested accusations; moreover, the potential risks to the fairness of the process would be dramatically reduced. And for those government officials who long to memorialize their contributions to a case through comedic sound bites, the additional time might help them come up with something better than this.

Seriously, wouldn't we all be better off?