The language of the U. S. Constitution is clear and succinct. Before a person can be condemned, he or she is entitled to the “due process” of the law, a right that, as US Constitution.net explains, is as old as the Magna Carta.

• Sidebar: An original, signed copy of the Magna Carta is on display at Salisbury Cathedral, which serves as a Hogwarts set in the Harry Potter movies (BTW, the most-recent of which flicks is unintelligible if you haven’t read the book).

The Fifth Amendment says, “No person shall . . . be deprived of life, liberty, or property without due process of law . . . .” But what is “due process”? Does a person convicted in the press enjoy this “due process”?

Due Process and the Press

In the U. S., the press obscures its unfair, pretrial condemnations of suspects by hiding behind the First Amendment. For decades journalism students have been taught that all they need to do is use the words “suspect” and “allegedly” to avoid libel and slander suits.

Recently, I’ve noticed even those words vanishing from the vocabulary of TV talking heads, though. When is the last time you heard Casey Anthony referred to as a “suspect in her daughter’s death” or that she “allegedly” did anything?

British and Canadian law, however, prohibit incendiary pretrial publicity, according to Prof. Cecil Greek of Florida State University, in his article, “Shadow Justice.” I wonder if it isn’t time for a high-profile murder defendant to challenge the Constitutionality of pretrial condemnations in this country?

Unappealing Spouses

This radical idea occurred to me while watching the trial of Mark Jensen, which was replayed on TruTV last week. While I understand why the jury found Jensen guilty of the poisoning murder (ethylene glycol) of his wife, knowing as we do now that a retrial is likely I wonder whether it is possible for any future jury in Wisconsin to be objective, given the prejudicial press coverage.

• Sidebar: I believe the evidence against Jensen boils down to three irrelevant, trivial facts: 1) the “letter from the grave,” 2) “inappropriate behavior” after his wife’s death, and 3) computer Internet activity.
• The “letter from the grave” is the improperly admitted evidence that’s likely to cause a retrial. This is the weirdest evidence that has ever sent anyone to the slammer. His wife must have been crazy to believe he was trying to kill her, then to write a letter and stuff it hastily into a neighbor’s pocket, and still not to take the kids and leave the guy. And don’t tell me about battered wife syndrome. She was not a battered wife. She sounds just plain paranoid to me.
• As far as inappropriate behavior, if that were a crime we’d all be in jail. And don’t forget Cynthia Sommer, who was falsely condemned for the poisoning murder of her husband because she got breast implants after he died.
• The Jensen computer forensic evidence doesn’t convince me, either. There’s no way of proving who searched the Internet for murder tips, and the emails in question don’t seem to prove a thing, in my opinion (but I am not a lawyer, and I did not personally read the emails).
• All that the prosecution proved to me is that Jensen hated his wife and vice versa.

While I’ll undoubtedly incur your cyber-wrath for saying so, I feel the evidence against Scott Peterson was equally flimsy. (No evidence of foul play was found in his house, car, or boat; it isn’t illegal to have an affair while your wife is pregnant—even when your choice of a bimbo is appalling; it isn’t illegal to buy a boat or go fishing with it—with or without proper equipment; it isn’t illegal to claim to be in London or Paris at midnight in California on New Year’s Eve—just stupid.) The sole incriminating evidence was that his wife’s body was ultimately found on the shore of the bay where he was fishing. Anyone could have dumped the body in the bay after all the pretrial (post-disappearance) publicity intending to incriminate him. Even I knew, way out here in the Midwest, that Scott went fishing on Christmas Eve, and I knew it within a day or two of the disappearance.

Other spouses the media dislike include the unfortunate nurse, Raynella Dossett-Leath, whom the media in TN dubbed “The Black Widow.” Like Mark Jensen, she’s accused of having tried to poison her husband and then, that failing, of having killed him. (In the Jensen case, prosecutors tried to prove that the wife was suffocated in addition to poisoned; but the medical examiner’s testimony is a bit vague.)

If you “Google” the phrase “wife accused of poisoning husband,” you’ll retrieve a long list of similar cases. In one, a nurse was accused of poisoning her husband; the defense attorney feared a jury trial because of pretrial publicity and chose a bench trial instead. Apparently it was a wise decision, because the judge acquitted the nurse.

Verdicts on Appeal

Jensen is appealing his conviction. Peterson is appealing his conviction. Dossett-Leath is awaiting retrial. If either Jensen or Peterson wins the appeal, their retrials will be circuses. And Casey Anthony doesn’t stand a chance of acquittal, either. All these defendants need a serious change of venue, but under U.S. law, a change of venue only brings in a jury from outside the jurisdiction where the crime occurred. The trial still takes place inside the state (I believe).

Change of venue is a farce in any nationally known case. Scott Peterson had a change of venue, but I believe I recall a lawyer complaining that jurors or witnesses had to drive past an accusatory billboard on the way to the courthouse.

There is at least one solution to this impasse: judges could be very careful about admitting merely prejudicial testimony into evidence.

For example, I don’t think coworkers’ descriptions of Mark Jensen at a Christmas party soon after his wife’s death should be admissible. Let’s face it, “eye-witness” accounts are highly subjective, and office party behavior isn’t a crime or proof of anything except that a partygoer may have been enjoying himself. Nor do I think Amber Frey’s testimony and audio tapes ought to have been admitted into evidence; all they proved was that Peterson wanted to hop into bed with her while his wife was missing. In the recent Dossett-Leath trial, the judge admitted evidence from a neighbor that the defendant waved at her on the day of the death when she had never before done that. What does that prove? That the neighbor never before noticed her waving or that the defendant decided at last to be friendlier?

The press is out of control. The public in cyberspace  (myself included) is free to express an opinion about any suspicious death of a spouse or child, without knowing the first thing about the case. (BTW: I do try not to prejudge defendants. That’s more than most can say.) Prosecutors in high-profile cases are forced to over-charge and then to win at any cost, because the real price of losing such a trial is losing your job.

So, unless pretrial publicity can be controlled, judges need to start being judicious.