Tried Through The Looking Glass

A new national pastime has taken its place atop the mantle of popular American culture. It's called the criminal case that generates a collective national focus through which the public consumes every alleged "fact," as if it were true, with a voracious appetite for more. This type of case has become a principle form of shared American spectacle and it highlights critical issues within our culture that need to be addressed – issues that include the attainment of justice in a media-saturated society, constitutional issues of fairness to the accused, and issues in the way the public is informed and misinformed about the world we share.

Jesse James Hollywood, his four co-defendants, and their families have lived through a classic example of just such a case. When a matter like theirs is complete, it's tempting to believe that the facts so clearly painted by the end of the day must have been equally clear throughout the legal process. But this is not always the case, and especially so as it relates to Hollywood. When graphic accusations were made against him, he was not present to respond. He had become the youngest man ever on the FBI's Most Wanted List by disappearing into ether. His whereabouts were unknown to both local and federal authorities. But that didn't prevent Santa Barbara County law enforcement officials and the Santa Barbara County District Attorney from making a series of allegations – as if these allegations were facts – that Hollywood and his four co-defendants were guilty of the crimes as charged. These brazen statements created a deep public bias about what might in fact have actually taken place.

In addition, the global media began months of highly sensational news coverage, creating an air of uncritical certainty that fed upon itself, with each passing day providing new insights that became known around the world as facts, confirming and re-confirming to the public the assurance that vicious acts had indeed occurred, and that Jesse James Hollywood and his co-defendants had been responsible for each of them. Given the tide of righteous judgment that Santa Barbara law enforcement authorities and the media had set forth, I sat uncomfortably in my own chair of judgment deciphering the truth as to what may or may not have actually taken place. Having worked on the film Alpha Dog and then written a book about the crime, I found myself in possession of much information that went against the tide of presumptions perpetuated by the media. It was obvious the case was about much more than the kidnapping and killing of a child as revenge for a drug debt. But that's what the headlines screamed, and that's what the mass majority of the knowing public had come to believe.

When Hollywood's attorney first spoke to me not long after the fugitive's capture in Brazil in March of 2005, he asked for my help. At first, I was reluctant to provide it. My unprecedented research had uncovered information that I felt the defense just wasn't entitled to. I believed it essential that the matter be resolved within the legal system, and without my personal involvement. But my experience told me this case was different. Hollywood's four co-defendants had already been steamrolled to inflated sentences during the fear fallout from their high-profile post-911 trials. It was a time when people were afraid, and these young defendants, all between the ages of seventeen and twenty, had been maxed out, sentence wise, as public scapegoats.

The youngest defendant, a bright-eyed seventeen year old with a middleclass upbringing and a minimal criminal background involving pot-related infractions, was charged and convicted as an adult for murder. The twenty-year-old alleged shooter had never been arrested before, although he had grown up in a household mired in violence and psychological infirmity. His trial attorneys bordered on the incompetent and he received the death penalty as a result. Another developmentally disabled twenty year old got slapped with life in prison, and I knew Jesse James Hollywood’s chance at a fair trial would be transparent at best. Public sentiment weighed heavily against him, as it had with his co-defendants, due to five year's worth of demonization presented by law enforcement agencies through the mass media.

I had in my possession the entire prosecutor's case file from his convicting Hollywood's four co-defendants. I also carried the fruits of the defendants' trial and appellate court transcripts, all newspaper and magazine articles regarding the crimes, and the notes and tapes and memories from key interviews with the case's most crucial witnesses. I had more information than both sides put together. This led both the prosecution and the defense to subpoena me and it caused the court to ultimately order me, at the risk of going to jail, to turn over all notes and tapes from my interviews.

In my mind, the critical issue involved the fact that during Hollywood's nearly five years of disappearance, the prosecution – with the help of global news coverage that included features on national television shows such as NBC's Dateline and America’s Most Wanted – had tried and convicted the fugitive in absentia. From what I had read, and from what people were saying and writing about the matter, the public wanted to see justice swiftly handed down in the form of a guilty verdict followed by a painful and deadly ending. And this before the kid ever had a chance to step into a court of law.

The laws were pretty clear about what prosecutors could and could not say in regards to trying cases through the media. First Amendment free speech protections superseded a defendant's Sixth Amendment rights to a fair trial. Courts had continuously protected the free speech rights of prosecutors to comment upon their cases. The public's right to know what took place in legal proceedings was strongly considered due to the fact that many of the cases involved public figures, public policy, and political issues. Yet, I was of the belief that lawyers, and prosecutors in particular, should possess certain obligations to justice and respect for the legal process. Therefore they should not turn criminal cases into sound bites and talk-show topics. Public confidence that legal proceedings seek truth and achieve justice is a glass slipper that could easily shatter should the public perceive them as public relations battles waged through the media. This, in part, was what I believed had happened in the Hollywood case.

Law enforcement officials are known to try their cases through the media before defendants ever have an opportunity to defend themselves. Prosecutors and police officials share the cloaks of truth and infallibility, and when they say somebody did something to someone, the general public has little to do other than believe what they heard. No one wants to believe that a sworn officer of the court might bend or distort the truth. But having practiced criminal defense for many years, I possessed feelings of ambivalence about the subject.

Law enforcement's job is to arrest and convict, often by utilizing the media to shape public opinion based on questionable facts gathered for conviction. Law enforcement officials never publicize information that would go contrary to their position. And if such information were considered inadmissible by the court, the public might never become aware of anything different. Defense attorneys, on the other hand, generally have not yet had the opportunity or resources to complete their investigations, and they are loath to speak out on behalf of their clients without all the facts in their possession for fear of harming the defendant's position within the public eye. Thus, the law enforcement version of events, which usually centers on the alleged guilt of the accused, stands foremost in the jury pool of public opinion.

This is what happened to Hollywood. He was guilty in the public's eye because Santa Barbara County law enforcement officials, through the media, had said he was. But I believed differently. Based on all the information I had gathered, it was my belief that Jesse James Hollywood had been maligned by a misinformation campaign that had so badly infected a potential jury pool of his peers, that he could never receive a fair trial in the city of Santa Barbara, or maybe anywhere else. We have recently witnessed this same phenomenon take place in two other major national criminal cases involving the Duke lacrosse team and the "Jena 6" in Louisiana.

At the time, I was of the opinion that Hollywood drove the road to execution without any chance of his version of events being listened to. My fear was that if I remained quiet, the chasm between what really took place versus the law enforcement version of what happened, as portrayed through the media, would never reach the light of day. The underlying motivations of what caused the crime were not as the mass media had stated. I knew this as fact. I also had in my possession information that – as a practicing criminal defense attorney – I knew might be considered exculpatory in nature to Hollywood's defense. And I believed Hollywood's attorneys were not in possession of such information.

Upon my shoulders I felt the unbearable burden that I was the only one who could save Hollywood's life. Public sentiment was totally against him, and I was the only link to all the information I had gathered from law enforcement agencies for the film and my book. And if I remained quiet as to what I was in possession of, I believed Hollywood would have been rushed straight to the gallows. I could not have lived with that on my conscience. I could remain silent no longer. That's why, ultimately, I agreed to testify. And that's why, I believe, Jesse James Hollywood does not presently stand on death row.

Due to my reluctant testimony, the prosecutor got thrown off the case, and both sides appealed all the way to the California Supreme Court, where it presently resides. As California Court of Appeal Justice Arthur Gilbert stated in his concurrence: "However appalling the crime for which defendant was charged, he, like anyone charged with a criminal offense, is entitled to a fair trial with all its attendant constitutional and statutory safeguards. This includes not having to face a prosecutor who has a conflict… In every high-profile case, there is a risk that the prosecutor will fall into the trap of cozying up too much to the media. With the perception that there are two trials to win – one in the courtroom and one in the court of public opinion – prosecutors often make the mistake of playing to the media." And it has to stop.

All Americans deserve the right to a fair trial. They deserve the ability to rigorously defend themselves from the charges against them in a court of law. Often, especially in high-profile cases, these rights are trumped by overzealous prosecutors who try their cases through the media instead of in court. This is patently undemocratic. But more importantly, it shifts the burden to the defendant who in essence is forced to prove his innocence, an unfair burden in any court. As Justice Gilbert wisely concluded, "In handling a high-profile case, prosecutors must be acutely aware of the conflict of interest created by the prosecution becoming overly engaged with the media… Now, courts are willing to find that it creates a disqualifying conflict of interest for a prosecutor to blatantly use the press to the prosecution’s strategic advantage or for personal profit or self-promotion."