Federal Appeals Court Upholds 'Perp Walks'

The Second Circuit Court of Appeals Monday issued a decision upholding the contemptible procedure of perp walks:

A federal appeals court has unanimously approved police "perp walks," in which handcuffed, camera-shy defendants are paraded before cameras, claiming it may sway others from attempting crimes similar to those charged to the defendants.

"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," said the opinion authored by Circuit Judge Fred I. Parker and released Monday, four weeks after he died Aug. 12.

The tradition does not violate a prisoner's civil rights so long as it is not "an inherently fictional dramatization" staged solely to satisfy press curiosity, a panel of the 2nd U.S. Circuit Court of Appeals ruled 3-0 in a New York case.

Perp walk: Think Lee Harvey Oswald who was shot to death during it. Timothy McVeigh, who wasn't even provided a bullet-proof vest. Here's our description of McVeigh's perp walk (taken from our brief asking that eyewitness identifications of him be suppressed from trial):

What the nation and indeed the world next witnessed, and continuously observed approximately every 20 minutes for days on end, on television sets in homes, businesses, offices, airports, hospital waiting rooms, and virtually every other imaginable place, was what has now come to be known as “the perp walk”: Timothy McVeigh, in an orange jump suit, wearing no apparent protection such as a bullet-proof vest, with his military-style haircut and a far-off look in his eye, shackled at the hands and feet, being led by federal agents out of the Noble County Jail, through a throng of angry watchers-on, many of whom were repeatedly shouting “Baby Killer, Baby Killer” at him.

Within hours, this event and the demonizing portrayal of Timothy McVeigh dominated every similar form of media, from print to the radio’s air waves, where vivid descriptions of this image supplanted the visuals of the other mediums.

In time, this visual demonization of Timothy McVeigh abated in frequency from what seemed like every few minutes, to hourly, then to three times a day, then daily, weekly, and monthly. Even now, almost two years after the event, the image is still more often than not flashed on the television screen when anything about the Oklahoma City bombing is aired.

All of the challenged identifications of defendant McVeigh occurred after the government’s identification witnesses had ample opportunity for repeated exposure to the demonic depiction of the singular image of Timothy McVeigh.

Not a single one of them was asked to attend the Oklahoma City lineup to identify Mr. McVeigh. It is against this backdrop that all of the challenged identifications must be measured.

Back to the New York case, from the same news article:

Gerald B. Lefcourt, past president of the National Association of Criminal Defense Lawyers, said charges should be announced publicly without "this type of manipulation to gain maximum press advantage."

The New York lawyer criticized the court for ignoring Westchester County's release of surveillance evidence in addition to the videotape showing the guards in custody.

"This type of activity should be condemned, not approved," said Mr. Lefcourt, who is familiar with the case but not involved. "Part of the video montage circulated surveillance videotape, which could only be used ethically at trial."

The Court defined "perp walk" as:

when an accused wrongdoer is led in handcuffs by the police to the courthouse, police station, or jail.

The U.S. Attorneys' Manual permits the procedure.

Federal officials often use perp walks, which the U.S. Attorneys' Manual permits as assistance to news reporters "in photographing, taping, recording or televising a law-enforcement activity" with concern for the safety and rights of those involved.

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