In August of 1970 the nation was riveted by the trial of Charles Manson and members of his gang who were being tried for the multiple murders on consecutive nights at the Tate-Polanski and LaBianca residences.  A young and aggressive Vince Bugliosi secured convictions and death penalties (later commuted to life by the California Supreme Court) against Charles Manson, Susan Atkins, Leslie Van Houten, Tex Watkins, and Patricia Krenwinkel. If you’re into a true-life thriller and are curious about what really goes on in the courtroom, I commend Bugliosi’s exhaustive account of the crime, investigation, and trial of Manson in his book Helter Skelter.  But that’s not why I write to you today.

Rather, it is to highlight a long-forgotten moment in the trial when President Richard Nixon, in a contentious press interview, declared his belief that Manson was guilty.  “Manson guilty, Nixon Declares,” was the four-inch headline in the Los Angeles Times while the case was ongoing.  The judge immediately moved to exclude the jury, who had long been sequestered, from the possibility of exposure, going so far as to blacken the windows of the jury’s bus.  To no avail.  The next day Manson himself displayed the headline in open court for the jury to see.  Then, of course, his lawyer moved for a mistrial.  After each juror was questioned individually by the judge, and the judge was satisfied that none of them was swayed by the president’s pronouncement, the trial continued. (One juror in the Manson case was famously heard to declare that she would never take Nixon’s word for anything — to the delight of the assembled media-types.)

Good thing, too, because the trial lasted nine months and was at the time the most expensive in U.S. history.

So, I’m asked, what is the effect of the president, the attorney general, and the president’s press secretary all announcing with the conviction borne of certainty that Khalid Sheikh Mohammed is . . .toast?  There is a process called voir dire, in which attorneys for both sides question prospective jurors to try to get only those individuals who have not made up their mind and who are not tainted by extraneous evidence or influence.  Voir dire in the Manson case took over one month before a jury could be seated, such was the extent of the pre-trial publicity.  Now consider that you are a defense counsel for KSM (okay, okay, I know how repulsive the thought is that you would actually be a . . . .lawyer), but just suppose.  Would you want anybody on the jury who had heard the president himself voice an opinion not just of guilt, but of the punishment as well?

The jury selection process in any trial is tough; in one with this notoriety, it borders on the Sisyphean. Adding the additional problem of poisoning the well through the pronouncement of the President of the United States doesn’t merely complicate things, it can serve to ensure that the jury is composed of people who either had never heard the statements, or who are willing to say they didn’t even if they had, or who had heard them but swear up and down they will not be influenced by them..  Any and all of these possibilities introduce a perplexing wild card to the trial — and can result in, shall we say, a non-representative sampling of citizens sitting on a very, very important trial.

Even though public pronouncements of guilt by senior officials are certainly problematic in a federal criminal trial, they would not necessarily be fatal (to the prosecution, I mean). Paradoxically, if KSM were to be tried under the court-martial system, such a pronouncement might prove just that.  This is because of something called unlawful command influence. The president, as commander-in-chief, sits at the apex of the military command structure, and thus an opinion as to guilt and sentence might very well create an irredeemable problem of unlawful command influence in a UCMJ-governed court.  The Court of Appeals for the Armed Forces, the civilian court that sits just below the U.S. Supreme Court in the appellate chain for the military, has time and again pronounced unlawful command influence to be the “mortal enemy” of military justice. They’ve put teeth in that declaration as well, routinely dismissing all charges where they find there has been the taint of unlawful command influence, and requiring the prosecution to disprove its existence beyond a reasonable doubt.

The simplest second-year law student knows about the presumption of innocence, and that the courts have over time crafted elaborate rules to ensure that constitutional rights are not infringed in the criminal process.  Rules that can result in a tainted jury pool at best, and at worst in setting a monster free.  Is anybody listening?