Thursday, January 05, 2012

On preconviction shaming and the role of the prosecutor

Fort Worth criminal defense attorney Richard Henderson authored a response in the Star-Telegram to the Tarrant County District Attorney Joe Shannon and assistant DA Richard Alpert, who held a splashy press conference last week announcing a new policy of publishing DWI defendants' names on their website as a shaming tactic (discussed here on Grits). Wrote Henderson:
I would support a joint effort by the DA and the defense bar to prevent DWI, so long as it does not include the publishing of names on the DA's website.

The Texas Disciplinary Rules for lawyers specifically state that a lawyer is not supposed to seek publicity to gain an advantage in a proceeding.

Prosecutors have their own special rule stating this. They are to seek justice, not merely be advocates and seek convictions.

Alpert has stated that merely publishing the names is not a comment on the case for giving evidentiary details.

This contradicts what Alpert states on the website:

"Over the years, we have tried to make it clear to the public that during a 'no refusal weekend' there will be no way to hide the evidence of their intoxication. This year we are adding the promise that they also won't be able to keep their charges a secret."

Such rhetoric goes beyond merely publishing the names. The direct implication of having the name of a person charged with DWI on the DA's website is that the person is guilty.

All people are presumed innocent until found guilty in court. A police officer's finding of probable cause for DWI is not legal proof, yet that is all that is required for a DWI arrest.

Potential jurors will have access to the DA's website and the names of persons accused of DWI.

I think Shannon and Alpert mean well, but they need to rethink this policy and remember their role in the system.
RELATED: Does preconviction shaming deter DWI or just obliterate the presumption of innocence?


Anonymous said...

I wonder how many defense attorneys over the years have spoke out publically to the media before their client went to trial saying things to the effect of "my client is innocent," "my client is unjustly accused," "my client has an alibi," and so on? Stop and think about it. This is a fairly common occurence, especially in some of the more media worthy cases. The Casey Anthony trial in Florida immediately comes to mind. How is this any different?

Gritsforbreakfast said...

And if they didn't do that, 8:54, any false allegations are just left hanging out there. The Casey Anthony trial you mention is a great example, with the Nancy Graces of the world seeking to convict her before the jury was selected. Trial by media is problematic in both directions, which is why I suggested in this post, and this one, that it might be time to consider following the Brits' lead to put a stop all of it.

I'm not quite prepared to advocate that approach, but more and more I'm leaning toward it, including for some of the reasons you mention

RSO wife said...

I have a friend whose 26 year old grandson has Asperger's syndrome which is a mild form of autism. He functions normally with a few weird quirks but if you didn't know what was wrong with him, you might think he was drunk. He does not drink at all. A cop pulled him over and issued a citation for drunk driving without a breathalyzer test.

How do you think his family or employer would have felt if his name had been published in the newspaper.

If you want to shame people, do it to the guilty ones. I remember some things Ted Poe did when he was judge that were really creative and got his point across. BUT HE WAS THE JUDGE AND IT WAS THE PUNISHMENT PHASE.

Too many people are quick to forget the "Judge not, lest you be judged" quote from you know where. My father always said that when you point one finger at someone, three of them are pointing back at you. We seem to have become a "Let's blame somebody for it" society. Or maybe we always were that way, the message just gets out faster these days.

The media punishes too many people before they have their day in court as it is, let's not add fuel to the fire by starting the mess even sooner. Whatever happened to "Innocent until PROVEN guilty"?

DEWEY said...

The "news" media publishing the names of accused sex offenders upon arrest before the trial comes to mind. Even if found not guilty, the stigma remains.

Anonymous said...

How many dui cases are filed in TX and how many result in convictions?

Gritsforbreakfast said...

@12:13, In 2009, for example, 102,309 DWI arrests statewide resulted in just 44,777 convictions - about a 44% conviction rate statewide, varying by county.

Anonymous said...

"In 2009, for example, 102,309 DWI arrests statewide resulted in just 44,777 convictions - about a 44% conviction rate statewide, varying by county."
I dont think the number of arrests and number of convictions are talking about the same cases. It is highly unlikely that all the 2009 arrests resulted in convictions that same year. So I think equating that to a 44% conviction rate is bad math