We missed a tremendous opportunity to conduct an experiment of great significance in our courts. That’s because we didn’t have a crystal ball. Who really would have thought that courtroom spectators would unwittingly try to transform the tranquil of a courtroom into the electronic version of a Roman coliseum, favoring we the mob with tidbits of the trial in short bursts of data sent almost compulsively from the proceedings.
Welcome to the world of Twitter.
The trial of Steven Hayes ended in a sentence of death, a result almost as foreseeable as the next sunrise. This was no case of mistaken identity. The crimes were savage. Most significantly, the surviving victim was sympathetic: An upper-middle class white doctor’s family was slaughtered by two hapless ex-cons. Race and class matter, folks. The next time someone is foolish enough to question that, simply recite the following two words: "Cheshire homicides."
The criminal justice system was hijacked to make sure this case went just right. The courtroom was spruced up for trial. A separate staging area was reserved for the family of the victims. We rolled out justice’s red carpet for this killing machine.
Then we invited the press. Droves of reporters attended each day, lining up in the pre-dawn hours to make sure they got one of the 160 or so seats available in the courtroom.
Trial is and always has been a matter of public theater. The stage is familiar. Each side has its table, with the state, forever, and by unchallenged custom, permitted to sit closest to the jury. Among the actors, only the judge faces the parties and spectators. His is the face of justice. The drama unfolds along predictable enough lines, at least for lawyers. There are the allegations of a crime, the witnesses, the rules of evidence, arguments and a verdict.
Much though I enjoy trying a case, I’ve found that watching another lawyer at trial is like watching ice melt.
But not so in the Hayes case. The press was transfixed and permitted to report live from the courtroom about what it saw via hand-held devices. Brief info-bursts were blasted moment by moment from the trial via Twitter, a social media tool that permits a person to send instantaneous messages to the world 140 characters at a time.
The Hayes trial should be studied by social psychologists. The stream of Twitter messages reveals much. Indeed, I suspect social psychologists to testify at the inevitable habeas corpus trial for Mr. Hayes, which will take place, I presume, some time in the 2020s – the decade in which hindsight will be perfect.
Here’s what I think happened in the courtroom: Justice get hijacked and we engaged in an electronic lynching.
I’ve read quite a bit of the tweeting from the trial. None of it showed much interest, or even comprehension, of the legal proceedings. It was all about color. What’s more, the color it painted in was sympathy for Dr. William Petit, Jr., who seemed to become an almost rock-star like figure for reporters. His every move was reported upon in brief bursts of text. In order to engage in obsessive reports about his every move, reporters must have been almost staring at him. What message did that send the jury?
The silent messages our behavior sends never make a written record. But walk into a room where all show deference to someone and you can sense the chemistry. The science of detecting these cues is called sociometry.
I’ve spoken to many judges, prosecutors and defense lawyers who all regard the recent trial with a sense of weariness. Did we let sympathy for the victim result infect these proceedings? There is a broad consensus that we did, but no one with power wants to say so: Saying anything critical about the Petit family’s sense that they are entitled to the death of the defendants won’t get you far in this state. But entitlement about sums it up: It’s just so frustrating to have to wait so long to see the killers killed.
There’s another trial slated for next year. The same basic facts, but a different defendant this time. And hence the experiment lost. It would have been helpful to have a social psychologist observe both proceedings – hence the experiment lost. But common sense suggests that banning this distracting practice of tweeting will contribute much toward keeping the focus of all on the administration of justice, and not on isolated bits of sympathetic color commentary, and the adoring commentary of reporters who can’t get their fill of the victim’s sorrow.
Reprinted courtesy of the Connecticut Law Tribune.