Mayor Michael Bloomberg beat a hasty retreat from a statement he made after Strauss-Kahn’s arrest, when he concluded, “If you don’t want to do the perp walk, don’t do the crime.” Here was Bloomberg’s new position, reported by The New York Times on July 5: “We have done perp walks for the benefit of newspapers and television for a long time. I’ve always thought that the perp walks were outrageous, but that’s only my view. Nobody’s asked me, and I have no say in it.”
No matter how the case turns out, one image of Strauss-Kahn is likely to endure: that of the perp walk. In his home country, France, where the press is prohibited from publishing photos of defendants in handcuffs unless the person is convicted, the image — and its potential lingering effects — triggered outrage. A former French justice official, in news accounts, called the photos “incredibly brutal, violent and cruel.”
Are the French right? Has this Ameri­can tradition gone too far?
Perhaps not surprisingly, criminal defense lawyers say yes. Perp walks, they assert, undermine the presumption of innocence, casting shame on the accused months if not years before any trial. “Doesn’t the Strauss-Kahn case prove that perp walks are a bad idea?” asked William Mitchelson Jr., an Alston & Bird criminal defense partner in Atlanta. “It’s hard to un-ring that bell.”
But the practice has been sanctioned in a number of court opinions, and the position of many prosecutors doesn’t appear all that different from Mayor Bloomberg’s: The practice is sound public policy — until a mistake occurs. To them, it’s a matter of allowing the public access to the justice system. And in the case of the wealthy or prominent, it’s also an issue of fundamental fairness: Few object when poor or less notable defendants are led on a perp walk.
“No matter who you have in custody you are pretty much required to handcuff the suspect,” said Richard Delonis, retired federal prosecutor in Detroit. “It’s a security issue. If everybody in custody gets handcuffed then you won’t have an incident somewhere along the line where a cop or agent makes a mistake and ends up hurt or dead.”
Asked about the French perspective that perp walk photos are cruel, Delonis said: “I kind of thought the guillotine was barbaric.”
Police and prosecutors make several arguments justifying the use of perp walks. Here’s one: Walking a defendant in cuffs to a vehicle or into a courthouse is legal, and there’s no law stopping the press from snapping photos and recording video.
Prosecutors have discretion over how a defendant gets to court — for instance, through a physical arrest or a summons. But not every defendant will have a shot at a voluntary surrender through counsel. For some, the trip comes with a police escort and a throng of journalists.
Alston & Bird’s Mitchelson, a former federal prosecutor in Florida, said the trend of formally arresting white-collar suspects and staging perp walks, where the police inform reporters about when to catch a peek of a defendant, increased after the Enron Corp. accounting scandal a decade ago.
If New York appears to be the hub of the high-profile white-collar defendant perp walk, there’s a reason. Several observers of the practice give credit to Rudolph Giuliani, during his stint as the U.S. attorney in Manhattan, for popularizing the perp walk. “When the time came to arrest three prominent Wall Street traders and bankers that his office accused of insider trading, Giuliani directed that the defendants be arrested at their offices, handcuffed and escorted from the building to a mob of press that had been previously alerted,” Mitchelson wrote in a 2006 article in The National Law Journal. (Giuliani, a name partner in New York’s Bracewell & Giuliani, was traveling and unavailable for comment.)
Over the years, defendants in a host of federal cases — including several in New York — have sued over perp walks, and government lawyers have in large part successfully defended the practice.
A three-judge panel of the U.S. Court of Appeals for the 2d Circuit — including Sonia Sotomayor, now a U.S. Supreme Court justice — upheld a trial judge’s ruling that a perp walk for the press did not violate the defendant’s civil rights. In that case, the court found the government’s interest in the perp walk trumped the defendant’s privacy interests. The press filmed the defendants — corrections officers accused of fraudulent job-injury claims — walking up the steps of a courthouse. Government officials also distributed to journalists video of the defendants in a corrections department parking lot at the time of their arrest.
Perp walks, the appeals court said, have a deterrence effect. “The image of the accused being led away to contend with the justice system powerfully communicates government efforts to thwart the criminal element, and it may deter others from attempting similar crimes,” the court said in its unanimous ruling in 2003.
The physical setup of police stations and courthouses facilitate — or, in some cases, hinder — press access to defendants who are under arrest. Reporters regularly stake out police precincts awaiting the emergence of a suspect. But a photographer can only shoot what he sees. “You’ve got to get somebody to the courthouse somehow,” said Delonis, the retired federal prosecutor and past president of the National Association of Assistant U.S. Attorneys. “If you don’t have the luxury of an underground parking area then you’ve got to off-load at the corner.”
Though it’s a point seldom made by proponents, critics argue perp walks are a modern-era form of pretrial punishment designed to build public bloodlust. Howard Goldstein, a New York-based litigation partner at Fried, Frank, Harris, Shriver & Jacobson, said it’s difficult for prosecutors to square the presumption of innocence with what he called the “public shaming” of a staged perp walk.
The government goal to deter crime, Goldstein said, can be accomplished through press releases and news conferences. At least U.S. Justice Department news releases, he noted, always come with a declaration that says the charges are merely allegations and the defendant is presumed innocent. “Why it’s necessary to humiliate a defendant at a time when a defendant is presumed innocent escapes me,” Goldstein said.
John Dowd, who represented billionaire investor Raj Rajaratnam in one of the largest-ever Wall Street insider-­trading cases, called perp walks a “disgrace to our system of justice.”
“Prosecutors ought to be ashamed of themselves for using these weapons to destroy people,” said Dowd, co-chairman of Akin Gump Strauss Hauer & Feld’s white-collar defense and corporate investigations practice. “It’s a terrible thing.”
George Washington University Law School criminal law professor Paul Butler, a former federal prosecutor who specialized in public-corruption cases, said if the case against Strauss-Kahn goes to trial it will be difficult to find jurors who have not seen the perp-walk photos. Staged perp walks, Butler said, increase the potential of tainting the jury pool. Jurors, he noted, generally are not allowed during a trial to see a defendant in handcuffs or wearing jail garb. “When you see that picture of somebody looking like a deer in headlights, with handcuffs on and surrounded by big men with guns, they look guilty,” Butler said. “You don’t think, ‘Well, someone has made an allegation that may or may not be true.’ “
Both the Queens and Brooklyn district attorneys, in New York, have said they are opposed to the practice of perp walks. Queens District Attorney Richard Brown issued a memo in August 1995 that cited American Bar Association standards for criminal justice. “While the Bar Association’s standards do not mandate that we go to any extremes to conceal our custody of an accused, they do require that we not exploit our custodial authority in a manner that is designed to generate unnecessary adverse publicity of the accused,” the memo said.
Robert Cary, a Williams & Connolly partner who represented the late Alaska Sen. Ted Stevens, said a staged perp walk does “immeasurable harm” and serves no legitimate law enforcement purpose. The image of a defendant in cuffs will survive on the Internet and in subsequent media reports — even if the defendant is later acquitted, he said. “Every prosecution office should have a policy against it,” Cary said.
Perp walks are as much about the police as they are the press. If reporters are not on the scene hours after an arrest, the defendant, perhaps haggard and bleary-eyed, is transported without fanfare. A Long Island politician named Roger Corbin in 2009 went so far as to try to get the perp walk practice banned outright — and also to block the press from running photos of his arrest in a tax fraud case.
An assistant U.S. attorney, Richard Donoghue, said in response that “the alleged ‘perp walk’ consisted of agents escorting [Corbin] a short distance from the IRS building to a vehicle for transportation to the federal courthouse for arraignment in accordance with their standard operating procedures.” The conduct, Donoghue said, was permissible.
Judge Arthur Spatt of U.S. District Court for the Eastern District of New York in June 2009 sided with the press and prosecutors, rejecting Corbin’s attack. “Although the court is troubled by the repeated use of images of Corbin in handcuffs despite the availability of numerous other photographs from his years of service as a public official, it is simply without authority to censor the press in this matter and cannot instruct the press as to what images are newsworthy,” Spatt said in a ruling in June 2009. “In the context of this criminal matter, the court cannot consider whether the images may have other negative effects, such as injury to the defendant’s public image or reputation.”
Spatt declined to issue an advisory opinion on the legality of perp walks. The judge noted the practice of perp walks “is a long-standing practice followed by law enforcement personnel to ensure the appearance of an arrestee at an arraignment and to safeguard this important process.”
Media lawyer David Schulz, who represented the press in the Corbin case, said in court papers that Spatt had no authority to dictate the selection of photographs and video that media outlets could not publish.
“While the court undeniably has an important role to play in assuring fair trial rights of any defendant, questioning the editorial choices made by journalists, or the ‘need’ for a specific photo to be published, is not an appropriate line of judicial inquiry,” said Schulz, a partner in New York at Levine Sullivan Koch & Schulz.
For Davis Wright Tremaine partner Robert Corn-Revere, the question in the Strauss-Kahn case should not be focused on the responsibility of the press but instead on the policies of law enforcement officials. Lawmakers, he said, may want to take up debate to limit prosecutorial discretion on perp walks. “Whether or not perp walks in high-profile cases like this should be controlled in some way is a discussion of how to manage the criminal justice system, not the press,” Corn-Revere said.
The French ban on publishing photos of defendants in handcuffs highlights differences between European and American criminal systems of justice, said Michael O’Hear, a criminal law professor at Marquette University Law School. “Europeans are much more oriented to protecting the dignity of offenders than Americans are,” O’Hear said.
Akin’s Dowd said staged perp walks don’t “speak well of our system of justice. You don’t feel like it’s America.”
And yet images of alleged offenders, bowing their heads in front of cameras, are an ingrained part of the American criminal justice system. So much so that the Strauss-Kahn perp walk photos did not surprise former U.S. Attorney Roscoe Howard Jr., a white-collar defense partner in Andrews Kurth’s Washington office. “What if it were Osama bin Laden? Everybody’s going to want a picture,” Howard said. “The prosecutor has an obligation to say, ‘I’ve got the guy.’ The question is what fulfills that obligation and how far do you go?”
The criminal justice system, Howard said, is usually public at every stage. “And that includes the arrest,” he said.
Mike Scarcella can be contacted at firstname.lastname@example.org.