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Perhaps the most fundamental precept of our Anglo-American judicial system is the presumption of innocence. An individual is presumed innocent, no matter the seriousness of the charge; and that presumption continues in force unless or until the government establishes guilt beyond a reasonable doubt or the defendant enters a guilty plea. Notwithstanding this bedrock principle, the U.S. Department of Justice slowly gnaws away at it. This erosion occurs not in the courtroom where a judicial official is available to protect constitutional rights; instead it occurs as part of a phenomenon outside the courthouse through a staged media event based upon the Confucian theorem that one picture is worth 1,000 words. What could be better from the government’s perspective than to arrest an individual, simultaneously alert the media and then march the defendant into court past a phalanx of news-hungry reporters? These Roman circus atmospherics even come with a name-the “perp [short for perpetrator] walk”-with the defendant not only displayed in handcuffs, but also accompanied by stern-looking law enforcement officials. These posed pictures of infamy, as the government well knows, can and will be replayed on numerous occasions on TV screens from coast to coast during the months, and sometimes years, before the case comes to trial. Unfortunately, this charade is now the norm, particularly for those charged with high-profile crimes where significant preindictment investigation has been necessary, and where counsel rather routinely offer to self-report the client. Time and again the government rejects, or simply ignores, such offers in favor of the desired photo op. Presumption of innocence be damned while the government flexes its prosecutorial muscle. It’s not about fairness We are told occasionally that the government opts for this approach so white-collar criminals will be treated the same as those apprehended for street crime. But is that really true? We have just seen an example-with Martha Stewart-where the government deviates from the perp walk when it is perceived in its prosecutorial interests to do so. Stewart recently was spared the walk of infamy, as was her co-defendant, no doubt because the government recognized that serious charges notwithstanding, there remains a reservoir of public sympathy for Stewart. By contrast, Samuel Waksal, whose ImClone stock is directly in focus in Stewart’s case, was earlier arrested for all to see through a walk. Lest it be argued that chivalry still prevails in some prosecutorial quarters sparing women the walk, one need only recall Lea Fastow, wife of Enron’s former (and twice indicted) chief financial officer, Andrew Fastow, was herself indicted and hauled into court in handcuffs in May with cameras blazing. No, it wasn’t gender that spared Stewart the walk. Everyone plays the spin game Those in a prosecutorial position to choreograph the format of the initial court appearance opted to allow Stewart to self-report because subjecting her to a perp walk may well have proved counterproductive. Indeed, as the initial court appearance began absent a perp walk, Forbes.com’s Gregory Levine, for example, provided fashion commentary in part, noting that “Stewart arrived at the court house under an ecru umbrella with a matching trench coat.” The government was correct to allow Stewart to self-report, for she, like everyone else, is and will remain, innocent unless or until found guilty. But the government is very wrong in picking and choosing those to be paraded in such a totally unnecessary and highly inflammatory setting. Why was Stewart spared the indignity of the perp walk, while, say, John Rigas, the founder of Adelphia Communications, Lea Fastow and numerous others are brought to court on equally serious charges in handcuffs before the eagerly waiting media throng? Some will say this is much ado about nothing. Most assuredly, they are misadvised. Branding a person a criminal by such public exposure is constitutionally offensive, a modern-day scarlet letter that besmirches our judicial process. The unseemly perp walk should end immediately, either by U.S. Department of Justice fiat or, if need be, by corrective legislation. Arrest those who must be arrested to avoid flight or those who present a danger to others. But in this age of insatiable, 24-hour news cycles, we should not sacrifice the Constitution to prosecutorial expediency. Stephen W. Grafman is a partner in the Washington office of Kirkpatrick & Lockhart. He formerly served as an assistant U.S. attorney for the District of Columbia.

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