Libel, imprisonment, or execution: where prosecution is the public concern, the game of social-media Russian roulette is as random as it is dangerous. Ultimately, a defendant’s fate may be determined by a tweet or a Facebook post. Innocence, guilt, these are only trifling concerns.
Just so with Bill Cosby, whose lawyers filed a motion this week objecting to his renewed prosecution, on the basis that a ten-year delay in criminal charges violated his right to a fair trial. Cosby’s objection is one that may become more common, as his defense team and other attorneys acclimate to a persecutory social media climate uninterested in careful inquiry.
Ideally, in situations like this case, prosecutors will abide by the ethical canon that forbids public statements “likely to increase public condemnation of the accused.” In practice, this ethical restraint is seldom exercised.
The solution is for state, city, and federal prosecutors’ offices to institute bans barring their attorneys from using social media.
Why the absoluteness of a complete ban? For the same reason Batson strikes and Brady violations exist: to stack juries based on race, hide evidence from the defense, or taint the public’s view so they’re incapable of objectivity, can irreversibly contaminate a courtroom. As Justice Robert Jackson aptly observed, “[t]he prosecutor has more control over life, liberty, and reputation than any other person in America.” That sort of power shouldn’t go unchecked.
Other figures, like judges, are severely limited in regards to political activity because of their institutional neutrality. But prosecutors aren’t neutral. Practically speaking, most chase the twin goals of winning elections and maintaining high conviction rates. When those goals overlap, justice may emerge stillborn.
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