Perp Walk: Whose Shame? There is nojustification for subjecting a suspect to a presumption of guilt.
Sentelle, David B.
Peril Walk Whose Shame? There is no justification for subjecting a suspect to a presumption of guilt. BY DAVID B. SENTELLE OU PICK UP YOUR MORNING PAPER. On the front page you see a prominent...
...The rule of grand jury secrecy, for example, evolved over the years to protect the confidentiality of investigations and also the privacy of the persons being investigated—persons who may never be convicted of anything...
...Granted, the ABA's rules are not law...
...The perp walk is neither more nor less than the punishment of the innocent...
...When I was a federal prosecutor in the early 1970s, we informed the media of prosecutions by the release of indictments...
...4, 9.) 10 THE AMERICAN SPECTATOR OCTOBER 2004 DAVID B. SENTELLE One reason we did not see perp walks in former times is that typically when prosecutors had been in touch with attorneys for the defense...
...The public only has a right to know what its offi12 THE AMERICAN SPECTATOR OCTOBER 2004 cials are doing up to a point...
...when the defendant had long known he was under investigation, and had not fled...
...An FBI agent is holding him by the chain...
...On the front page you see a prominent business executive...
...Many of us remember that a few years ago federal prosecutors used similar techniques against stockbrokers, arresting them on the floor of the stock exchange and walking them out in handcuffs...
...Statutes of the United States congressionally enacted and consistent with the Constitution provide for punishment of the guilty by appropriate legal sanctions including fines and imprisonment...
...Had I been, I would have said something like, "This perp walk looks like nothing so much as punishing someone who has not been convicted of anything...
...his eyes averted...
...American Bar Association Model Rules of Professional Conduct: Rule 3.8...
...Under the presumptions of the American criminal justice system, he is innocent until proven guilty...
...Aren't these secured accompanied walks necessary to bring those defendants before judicial officers who can order the confinement or release of the accused...
...If it is, it shouldn't be...
...He is being shamed...
...T HE PERP WALK WOULD BE BAD ENOUGH if the humiliation of the accused were the only intended or accomplished result...
...Unfortunately, I was not afforded a follow-up question...
...The media representatives were entitled to and received nothing more than the charges as to which the grand jury had found probable cause...
...See, Fed...
...Certainly the arrestees and their families remember...
...At the time of the taking of the picture and your viewing of it, he has done nothing...
...He fled...
...The response has uniformly been something along the lines of, "Don't the public have a right to know what their law enforcement officials are doing...
...Court of Appeals for the District of Columbia Circuit and a distinguished adjunct professor of law at the George Mason University School of Law...
...I do not see any...
...He became the subject of a serious manhunt...
...Why are his co-workers, his friends, his neighbors, and, yes, his children seeing him subjected to this public humiliation...
...if the purpose of using an arrest rather than a summons is to guard against the danger of OCTOBER 2004 THE AMERICAN SPECTATOR 11 PERP WALK: WHOSE SHAME...
...If the Department of Justice can do no better than that, then I think the shame involved falls properly on the department, not on the defendant...
...At the time of the walk, every single one of those defendants is presumed innocent...
...Even after trial, some will have been found not guilty...
...The American Bar Association's (ABA) standards for the "Special Responsibilities of a Prosecutor" expressly state that: the prosecutor in a criminal case shall...
...Why does the prosecution subject the accused to that walk of shame in handcuffs before the media...
...Is there any justification...
...flight...
...Neither the Constitution nor the statutes adopted by Congress contemplate that a prosecutor or law enforcement officers should punish the accused but presumably innocent by public humiliation and shame...
...You've seen on the national news for days, perhaps weeks, that he is under investigation for securities fraud...
...What exactly has he done...
...In the photograph his head is down...
...1/4 David B. Sentelle is a judge on the U.S...
...However, the walk, commonly conducted at such time as to achieve maximum media exposure, is displayed not just for family and neighbors of the accused, but for every potential juror who sees the front page of the newspaper or the beginning of the evening news...
...Therefore, we may legitimately ask ourselves, why is this perp walk being conducted...
...A man burst into a garage where a rock band was practicing...
...A couple of years ago at a meeting of the Edward Bennett Williams Inn of the American Inns of Court, I asked a highly placed Justice Department official why it was that the federal Department of Justice, including the FBI, could not behave as professionally and constitutionally toward a middle-aged community leader charged with a securities violation as the Charlotte Police Department could toward a young minority male charged with first degree murder...
...Wait a minute...
...I would end where I began...
...Are you really telling me that the Department of Justice, the parent department of the Federal Bureau of Investigation, has to devote the considerable assets involved in a perp walk to no other purpose than satisfying the statistical credit given an agent if he makes an arrest of someone who may or may not be guilty of anything...
...Now, it seems not uncommon for prosecutors before and even during the course of trials to offer public discourse on details of the case beyond those which have become public record...
...No, they aren't necessary at all...
...However, it is not the same question the prosecutor was asked...
...If the purpose in an arrest or the service of a summons is to bring the defendant into the criminal justice system for a trial of the offense of which he is charged...
...You might say that it is necessary to walk the handcuffed subject from the point of arrest to the courthouse for his initial appearance...
...He is being subjected to a "perp walk"—the very name of which declares him a "perpetrator," that is one who has perpetrated or committed a crime...
...Warrants were issued for his arrest...
...Under the Federal Rules of Criminal Procedure, upon the issuance of a criminal complaint or the return of an indictment, the court may issue a warrant for arrest, but it may also, upon the request of the government, issue a summons...
...I was retained for his defense and told him that he must surrender if I was to represent him...
...B UT SURELY there are some defendants who need to be arrested...
...You might say that, but if you did, you would be laying down a load of bull...
...The real shame, I think, is that of the prosecution more than the defendant...
...That places the perp walk in the same category with the once unknown, now familiar press conference by prosecutors to discuss pending prosecutions...
...Upon the issuance of a summons, the defendant could then report to the court as ordered, make bail or arrange for release on recognizance, and leave the courthouse without ever having been handcuffed, let alone subjected to the walk of shame to which we have recently become accustomed...
...It still appears to me to be no more nor less than an attempt improperly to sway the thinking of potential jurors or subject to the punishment of shame an accused who has not yet been convicted of anything...
...Why will the still unconvicted citizen be paraded for the television and newspaper cameras...
...They are, however, accepted and very acceptable standards...
...How many of us remember that many of those men were never convicted of anything...
...except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, taw enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making [by the rules...
...I cannot believe the answer is "Yes...
...R. Crim...
...and even if the arrest is necessary to bring the accused under control, it is still not necessary that the arrest be made in a place some distance from the court appearance and the media given notice and time to set up cameras for the walk of shame...
...And he certainly deserves no better, given what he has done...
...After a long pause, the Justice Department official finally said something to the effect of, "Well, the FBI agents get an extra statistical credit if they make an arrest...
...Anything beyond an accurate report of the contents of the indictment or complaint runs the risk of violating the standards inculcated by the ABNs model rules...
...When I called the Charlotte Police Department and talked to one of the investigating officers, he not only agreed, but proposed that I could drive my client into the sally port of the jail where he could be processed without ever being subjected to the gauntlet of media now routine for white collar criminals...
...when he had ties to the community and no one reasonably supposed he would flee, the government requested and the court issued a summons, rather than a warrant...
...his hands are cuffed behind his back...
...A young Lumbee man was identified as the shooter...
...I have more than once in recent years heard prosecutors questioned at professional association meetings as to why they held press conferences...
...That is one of those questions that is supposed to evoke an affirmative answer...
...And, we might also legitimately ask, why didn't we see these perp walks until recent years...
...I recall when I was practicing law in Charlotte, North Carolina...
...Surely there are some that are flight risks...
...He shot three members of the band, killing the lead singer and seriously injuring the other two...
Vol. 37 • October 2004 • No. 8
