Smile When You Perp Walk

It’s a time honored tradition.  When someone of note gets arrested, the cops cuff him and take him for a stroll in front of the cameras.  They don’t have to; he could be moved privately.  There’s no reason why the police must alert the media to the arrest.  And then there’s no particular reason why the media has to use these photos.  For most people of note, there are plenty of good photos around when the time comes to put a visual on air or in the papers.  But it’s the perp walk.  What would a story of an arrest be without the perp walk?

When Nassau County Legislator Roger Corbin was busted for evading taxes on $226,000 and lying to federal agents, it was quite a shock.  Corbin, the only black legislator in the county and former deputy presiding officer, was well regarded.  There were a ton of photos of him, as he was not a camera shy individual, and they showed a happy, confident man with an infectious smile.  It wasn’t for lack of an image.
Nassau County legislator Roger Corbin is arrested on tax evasion charges. 
But Corbin, like any other newsworthy perp, was forced to take the walk.  And the cameras were out in force.  As this Newsday photo shows, they got some good pics of Roger Corbin being trotted out for the show.  These are the images that people will remember when they think of Roger Corbin. 

Corbin’s lawyer, Tom Liotti, is a bit of a character as well.  Tommy usually has a press conference lined up announcing his defense before he’s off the phone with the defendant’s first inquiry.  Tommy likes the media, and has never been shy about using it, whether to his advantage or detriment.  Some guys like to see their name in the paper, no matter what story it’s attached to.  Tommy just wants his name spelled right.

But Liotti’s decided to take an unusual position this time, which (surprise) has managed to get his name in the paper yet again.  From Newsday, Tommy has asked United States District Judge Arthur Spatt to bar local news, from television to newspaper, from showing photographs of Corbin doing the perp walk.

As offensive as using the perp walk to characterize a person of some note for whom a wealth of other images exist may be, the fact remains that a prior restraint on the media’s First Amendment rights to publish whatever images they chose, even though they may tend to prejudice people’s views, has no legal support.  Nonetheless, Spatt has ordered a hearing today on whether to grant Liotti’s motion.

Spatt called it “especially troubling to me” that the pictures of Corbin handcuffed were used in the days following his arrest when Newsday and News12 could have used other pictures taken during Corbin’s long legislative career. Newsday’s coverage included both the handcuff photos and pictures from throughout his life.

Not surprisingly, this is the government’s position.

In arguing that Spatt should throw out Liotti’s request for a hearing, David Schulz, attorney for Newsday and News12, said that never in U.S. history has the U.S. Supreme Court or the 2nd U.S. Circuit Court of Appeals allowed a judge to restrain news organizations before publication.

“Courts do not get [into] telling the media what to publish,” Schulz said.

Spatt was not convinced that the media’s right to publish was so clear:

Spatt replied that as strong as the First Amendment protections are, they are not absolute. For instance, the government could restrain the publication of child pornography, Spatt said.

What connection these photos have with kiddie porn remains unclear, there being little similarity of a newsworthy event involving a public figure and images having no legitimate basis to claim constitutional protection.  But then, should the media be allowed to chose the path that causes the greatest prejudice to a defendant when there are many alternatives that would serve the purpose of broadcasting the news without needless prejudice?

The issue is framed as the defendant’s right to be free from prejudice versus the medias right to be free to publish.  In his motion, Liotti sought to bar the publication of the images in the interim, which was denied, as well as the agents staging perp walks to begin with, and putting out a press release to make sure the cameras were ready to click.

Spatt also rejected two other overall motions by Liotti to bar the government from arranging the taking of pictures of suspects in custody – “perp walks” – and from issuing news releases and otherwise commenting on criminal cases beyond a simple statement of the facts. Spatt said he doubted that he had the power to grant those requests.
As much as one might hope that neither government, by way of its law enforcement personnel, as well as the media, might elect to take the course that isn’t designed to do as much harm to a defendant as possible, with sensationalist photographs arising from a carefully crafted, wholly staged perp walk that serves no legitimate purpose other than to embarrass and humiliate a person, and create an image that will make a defendant look like a beaten, guilty person, the chance of Liotti’s motion being granted is slim to none.  And if it is, the chance of it being upheld is even smaller.  As it should be.

One could desperately want both government and media to behave with a degree of self-restraint and responsibility by avoiding the creation of this staged act of prejudice toward defendants.  The initial fault lies with the cops, who both conduct the perp walk and make sure the media is there to capture it.  The reason for this is obvious.  The justification for this is dubious. 

There is absolutely no legitimate rationale for law enforcement creating a scenario designed to prejudice an individual’s right to a fair trial.  And yet it’s routine.  Unfortunately, lawmakers rarely comprehend the reason why this is wrong until they find themselves on the wrong side of the camera.  I bet Roger Corbin knows better now.

As for the media, the story is about the arrest of a public official, and the photo of the official in cuffs is at the heart of the First Amendment.  It is certainly true that the story itself, which not even Liotti claims should be silenced, will make the point that Corbin was busted.  But a picture is worth a thousand words, and that cliché cuts both ways.  The arrest happened.  The perp walk happened.  The media is just doing its job.  While we may not care for the effect it has on the defendant’s image and the impression it leaves on the potential jury pool, that’s not part of the media’s job. 

The perp walk is one of those horrible anachronisms that has served well these many years to do as much damage to the defendant’s image and reputation as possible.  That our government does it, sanctions it, perpetuates it, is outrageous.  That the media exercises its First Amendment right to publish photos of it may be less an exercise of sound discretion than we want of them, but is undoubtedly a fully protected act.  It cannot, and it must not, be stopped by judicial fiat.

As much as I can appreciate Tommy Liotti’s point, and acknowledge the harm done Corbin’s effort to avoid the prejudice derived from these photos, they cannot be stopped in a society that honors freedom of the press.  To do so would cause far more grievous harm to free speech, and society, in the long run, and this would be even more intolerable than the image of Corbin doing the perp walk.

On the other hand, there would be nothing whatsoever wrong with the executive branch of government directing law enforcement to stop this odious practice.  There’s neither authority nor justification for our government to deliberately cause prejudice to a defendant by staging the perp walk.  All it would take is for the executive to put is foot down and say this is wrong and it’s going to stop now.

And yet no executive, to my knowledge, has ever shown the fortitude to do so.

2 comments on “Smile When You Perp Walk

  1. Ken

    One of my partners had a client, a local politician, who got arrested. The cops or the DA tipped off the local paper. But the reporter and his photographer got there too late; the cops had already put the client in the car. So the cops took the client out of the car, walked him in cuffs back into his house, then walked him out again in cuffs so the photographer could snap the perp walk photos.

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