In a fascinating article, Innocent Until Reported Guilty, published at Miller-McCune Magazine, Steve Weinberg bemoans the death of skepticism in journalism, and accepts the blame on the part of the media for failing to do its part in crime reporting to recognize the failings in criminal prosecutions.

After recounting the case of Ellen Reasonover, a 24 year old single mother convicted of killing a gas station attendant based solely upon the testimony of two jail-house snitches, where the prosecution neglected to mention that their testimony was bought and paid for, Weinberg states:

What I learned stunned me. Questions battled for my attention; one worked its way to the top of the list: Why had the journalists who knew about the Reasonover case failed to question a police investigation, a prosecution and a conviction so obviously flawed? Why hadn’t somebody written an exposé before the guards hustled Reasonover to the waiting prison van? 

For that matter, why had I — a veteran investigative reporter — accepted so much about the criminal justice system on faith for so many years?

For anyone who has had the pleasure of dealing with a reporter during the course of a case, and faced questions that implied blind acceptance of the prosecution’s position as if it were gospel, Weinberg makes an awfully good point.  Why do journalists accept the criminal justice system on faith?

Weinberg proposes something rather novel, which he calls “preventive journalism.”

Until and unless journalists improve their performance, far more innocent people will be imprisoned than the criminal justice system seems likely ever to acknowledge. The logical extension of the preceding statement seems obvious, but I’ll say it anyway: Unless journalists get better at covering the justice system, many criminals will continue to go unpunished, free to murder or rape or rob again. So investigating wrongful convictions is not — as perceived by too many police, prosecutors and judges — an assault by soft-on-crime bleeding hearts. Rather, it is an attempt to serve law and order, to improve the administration of justice and to foster faith in the criminal justice system.

The media is often a major thorn in the side of the defense, essentially convicting a defendant at the outset by repeating police or prosecution allegations without the slightest hint of critical analysis.  This is part of the “balanced” approach, as far as journalists are concerned, where all sides are theoretically given equal play, and all claims, no matter how baseless or unsupported, are expressed as being of equal worth.  Except they aren’t.

The problem arises from the fact that the first announcement will invariably come from the prosecution side of the fence, thus allowing one side to construct the paradigm, set the parameters, create the scene.  Not until the scene has been irreversible established does the media go to the other side for comment.

Only after the scene has been firmly established is the defense asked to “respond”.  The questions posed seek to elicit answers that fit within the “facts” as already laid out neatly by the prosecution.  But what if the “facts” are just some wild allegations that never happened, thus precluding any ability to answer?  What if the answer is that something claimed never happened, but it remains an immutable part of the story anyway?

While noting a number of examples of hard-hitting investigative journalism that exposed corruption and deceit, Weinberg believes most reporters to be nothing more than “enabling stenographers.”

All this progress aside, “enabler” might serve as the best word to describe many journalists assigned to cover the justice system. They should all know the warning signs of wrongful prosecution by now, yet their coverage (and absence of coverage) suggests little learning from experience.

Many journalists who cover the “cops and courts” beat and its unwavering defenders of the criminal justice system will react to this article by saying, “Hindsight is 20/20.” They will contend that if it were easy to spot wrongful prosecutions, they would never happen.

But that doesn’t excuse their failure to try, as far as Weinberg is concerned.

While there can be little doubt that criminal defense lawyers, as well as the public, should welcome true investigative journalism, seeking to go deeper than blind acceptance of the prosecutor’s story and ferreting out bad cops and wrongful prosecutions,  Weinberg may be a little hard on himself and his brethren.  We already have an institution that’s tasked with the responsibility to distinguish good from bad prosecutions.  It’s called the courts.  Weinberg accepts as a given that the courts are simply incapable of doing its job, and thus it falls to journalists to step in to fill the gap.

The solution to this problem is not to expect more from journalists, though we would certainly welcome their skepticism, but to demand more from our courts.  While I can appreciate Weinberg’s concern over the lax approach of reporters toward crime reporting, and their enabling the prosecution’s public dissemination of false allegations because of their lack of healthy skepticism or hearty investigation, the primary responsibility must remain where it belongs, with an institution whose sole purpose is to separate the guilty from the not guilty, to shine light on misconduct and abuse, to hold the government to its burden.

Let’s not let Weinberg take the weight on this one, as it’s our problem before it’s his.

H/T Grits for Breakfast