The case of Theodore Kaczynski, indicted Tuesday in the "Unabomber" crimes, illustrates a serious problem in our criminal-justice system: prosecutors and police who try their cases in the media, rather than in the courts.
By now we've heard so much about the things found in Mr. Kaczynski's cabin - typewriter, "live" bomb, lists of alleged targets - that it seems clear this is the man the authorities were after - the man who sent out a series of mail bombs over two decades that wounded 23 people and killed three.
But that's the problem. How can a defendant so clearly guilty in the public mind get a fair trial by an impartial jury? How do you even find impartial jurors in such circumstances?
This is hardly the first high-profile case to raise the question. Years ago, the Charles Manson and Patty Hearst cases created a similar conflict between the public's right to know (and the press's right to print) and a defendant's right to a fair trial. The Rodney King case, the O. J. Simpson trial, and the Oklahoma City bombing are more-recent examples.
Here's the pattern: The police make an arrest in a case that has caught public attention. Wanting to look good, police officers and prosecutors leak to the media bits of evidence, rumors, and allegations about the suspect. In the media feeding frenzy, little of this is left unreported.
But the jurors come from this same public. In the court of public opinion, there are no rules of evidence, no testimony under oath, no rebuttal or expert witnesses. Police and prosecutors can keep up a steady stream of leaks to convince the public they've got their man. Defense lawyers rarely have the means to fight back. When they do, they are accused of media grandstanding, a charge rarely leveled at district attorneys - who are often seeking reelection or higher office.
An example of what this can lead to occurred in Boston a few years ago. In a nationally publicized case, Charles Stuart called 911 on a cell phone and said he and his pregnant wife had been robbed and shot by a carjacker. Carol Stuart and her infant died. Stuart told police the attacker was a black man, which set off a shakedown of an entire neighborhood. The cops made an arrest and then bragged to an indulgent media about how they tracked down the suspect.
Unfortunately, they had the wrong man. A few months later, Stuart's brother told police that Stuart had shot his wife and himself and given the brother the gun and some jewelry to dispose of. Before he could be arrested, Stuart committed suicide, leaving many unanswered questions. The black suspect, who had been in jail for weeks, was released. But what might have happened if no one had turned Stuart in? The city was outraged by the crime. Would the black suspect have been acquitted at trial, especially if he couldn't afford a "dream team" of lawyers? And what if he had been convicted and Massachusetts again had the death penalty? (Look up Sacco and Vanzetti in your encyclopedia.)
Some critics of the system point to Britain, the source of American common law, where the press is not allowed to print news about a case until it comes out in the courtroom. In Canada, an Ontario judge forbade the press to publish news about a defendant wife's completed trial in order to protect her husband's right to a fair trial on particularly heinous charges.
The courts' interpretation of the Constitution's First Amendment bars such approaches in the United States. While a US judge can issue a gag order on prosecution and defense lawyers during a trial, it can be difficult for a judge to control behavior before the case enters his or her courtroom.
But judges can influence pretrial behavior. One of the easiest ways would be to grant more defense requests for changes of venue. That's what a federal judge in Oklahoma City did: He rightly moved the trials of Timothy McVeigh and Terry Nichols, the suspects in last year's bombing of the federal building there, to Denver.
Another is to sanction prosecutors for pretrial misconduct. Too often, judges toss out defense motions for what everyone privately knows to be egregious police or prosecution behavior. It's time more judges got district attorneys' attention by granting more such defense motions.
Lastly, society should ponder why such a large percentage of trial judges are former prosecutors and such a small percentage are former defense lawyers. All too often, the judge trying a case is a former colleague of the assistant D.A. That's not the best recipe for impartiality or for reining in misconduct. Whether judges are elected or appointed, voters, governors, and legislators ought to pay more attention to adjusting the balance.
That doesn't mean coddling criminals. But a society increasingly infatuated with locking people up and throwing away the key, or executing them, should be mighty concerned that everybody's constitutional rights to due process and a fair trial before an impartial jury are scrupulously protected. That's not the case when police and prosecutors pollute the jury pool with inflammatory and prejudicial pretrial publicity.