The government could dangle a key piece of evidence that may or may not be used later. Or, a defense lawyer may suggest anonymously that his client is ready to plead. What’s wrong with that?
Both prosecutors and defense lawyers say the leaks make trying a case more difficult. If the pre-trial information is extremely detrimental it might mean an expensive move to a different venue. And, in extreme cases, higher courts may decide on appeal that the atmosphere around a trial was such a media circus that the case has to be retried.
“Indeed, it can get to the point where the defense can’t get a fair trial anymore,” says Jonathan Shapiro, a criminal defense lawyer for 40 years and now a visiting professor at Washington & Lee Law School in Lexington, Va.
In Sheppard v. Maxwell, the US Supreme Court ruled in 1966 that intense pretrial publicity prevented Samuel Sheppard from getting a fair trial for allegedly bludgeoning his pregnant wife to death.
The justices ruled 8 to 1 that the circus-atmosphere around the trial prejudiced jurors’ minds. The trial judge should have postponed the case or moved it to a different venue, the court ruled.
Prosecutors can also be leery about unsourced leaks. For example, Jason Blair, a disgraced former reporter for The New York Times, broke a story about the Beltway sniper, John Muhammad, claiming that on Oct. 30, 2002, Mr. Muhammad was about ready to confess to the shootings when the US Attorney forced interrogators to stop questioning him.