Tried in the court of social media: The consequences of being vilified before trial

Opinion

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This article was published 25/04/2017 (3059 days ago), so information in it may no longer be current.

One legal expert compares the Facebook firestorm swirling around a Manitoba homicide on the weekend to incidents in the U.S. that have been tried in the court of social media long before they land in court.

Two teenage girls have been charged with second-degree murder in the death of Serena McKay, 19, on Sagkeeng First Nation. 

Earlier this month, Steve Stephens announced a plan to commit murder before fatally shooting a man in Cleveland. He posted the video on Facebook, sparking a manhunt that ended when he killed himself.

In Sagkeeng, Facebook swirled with condemnation in the wake of a brutal video showing the Saturday beating of a young woman, alleged to be McKay, and screen shots of incriminating instant messages between the alleged suspects. 

The rush to judgment is probably inevitable, so maybe it’s a good thing the wheels of justice grind slowly, said Bryan Schwartz, a University of Manitoba expert in aboriginal law, human rights, business and trade law. He has gained a reputation for his insight on privacy in the Internet age.

“Time passes between the incident and the time any trial takes place. That can have a dampening effect on anybody’s initial impressions,” Schwartz said Tuesday.

Schwartz was quick to point out there’s an rich element of irony in arguing for a slow pace of justice.

“Right now, of course, one of the controversies in the criminal justice system of Canada is the Supreme Court of Canada is insistent we limit the time between the crime and the trial. We have a lot of trouble in practice doing that,” he said.

Investigations and reviews by police, crown attorneys and defence lawyers lengthen the time between a criminal act and its eventual deliberation, Schwartz said, as does jury selection.

“With a very serious offence, there are processes that take place between the time everybody’s very agitated and the time (a case goes to trial),” he said. “The point of our whole judicial system is to put distance between the time we make up our minds emotionally and the time we actually make a judicial decision. The system is put in place and maintained to create that kind of deliberation rather than rushing to conclusions.”

But Schwartz cautioned against anyone thinking social-media firestorms can be neutralized entirely by the judicial process.

“There are safeguards in the system to keep people from rushing to judgment, but that doesn’t mean there’s going to be no impact,” he said.

“There’s consequences to being vilified in the media. You could lose your job, your standing in the community. Your friends could abandon you. You could become a pariah.

“Try and get your reputation back after being turned into a villain in the media, fairly or unfairly.”

Another U of M law professor called the practice of posting violent videos “really sickening.”

“It does appear to be something that is part of people’s social-media world, to advertise what they are doing no matter how horrible it is. They’re playing to their peer group,” Rick Linden said.

Linden said he doesn’t believe posting criminal acts on social media prevents people from being tried fairly by the justice system.

“It might create legal problems, but if you do these things in full public view, I don’t think it will do anything to disqualify people from being able to be on a jury,” Linden said.

Facebook — where many of the violent videos both locally and internationally have been posted and shared — bears some responsibility, Linden said.

“Facebook allows it to be transmitted. Facebook is going to have to respond to weed things like this out,” Linden said.

Such posts are a symptom of something much deeper, said the woman who alerted police to McKay’s remains, which were found Sunday.

She said there is a deep layer of distrust of police in Sagkeeng and people may fear for their own safety if they’re seen speaking with authorities. The posts don’t just play to peer groups — they’re also a way to get the news about an incident out without talking directly to police, she said.

“The RCMP and the authorities have to realize, too, a lot of people are afraid to come forward to them. I’m sorry they have that relationship with the community. This is why the media storm is ahead of them,” said the woman who called police to the scene Sunday evening.

alexandra.paul@freepress.mb.ca

kevin.rollason@freepress.mb.ca