Calculated Leaks by Prosecutors and Police Require State Compensation

Calculated Leaks by Prosecutors and Police Require State Compensation
China Times editorial (Taipei, Taiwan, ROC)
A Translation
April 25, 2013

Summary: Ongoing investigations are confidential. This principle is clearly stated in the Code of Criminal Procedures. It imposes restrictions on how prosecutors and police handle ongoing criminal investigations. We hope the victims in the Mamma's Lips Coffee House case demand state compensation. Doing so could be a key step in the investigation of prosecutors and police authorities who violate case confidentiality. It could bring an end to this state of "law without order."

Full Text below:

Ongoing investigations are confidential. This principle is clearly stated in the Code of Criminal Procedures. It imposes restrictions on how prosecutors and police handle ongoing criminal investigations. In an ongoing investigation the truth remains unclear. Conclusions are premature. The facts of the case and the progress of the investigation must not be lightly disclosed. These restrictions have three purposes. One. To protect the reputations of alleged offenders. Two. To avoid misleading the public and affecting future trials. Three. To avoid leaking the facts of the case and creating obstacles to its prosecution.

But over the years, prosecutors and police on Taiwan have become increasingly cavalier about violating case confidentiality. Recently in a number of major cases, violations of case confidentiality have become commonplace. Some time ago the Mama's Lips Coffee House double murder case made the headlines. Prosecutors and police lept to the conclusion that more than one perpetrator was involved. They then leaked information to the press. Mamma's Lips Coffee House owner Lu, a consultant named Eu, and a friend named Chung were depicted as co-conspirators. Talking heads indulged in wild speculation. They painted a lurid picture. One month later, the case ran up against a brick wall. Prosecutors and police performed a swift about face. They indicted a single female defendant. Neither Lu, Eu, or Chung were indicted. But they had already been tried in the court of public opinion, and condemned as major felons guilty of murder. Business at the coffee house they operated plummeted. The losses they suffered can be imagined. Media coverage was of course a factor. But the ultimate victimizers were prosecutors and police who violated case confidentiality. This is one recent example.

Bombs were planted on Taiwan High Speed Rail trains and in legislators' offices. Police used cross-Strait legal assistance mechanisms. They swiftly zeroed in on two suspects, Hu and Chu, and repatriated them to Taiwan. But the investigators repeatedly leaked information. Clearly they did not give a damn about keeping the investigation under wraps. In fact, based on what they leaked and the rules of evidence, what they did was highly unprofessional. Calculated leaks are likely to mislead the public and even affect the administration of justice.

Around the same time, the Boston Marathon bombers struck. In order to track down the suspects, the city was sealed off. Paranoia prevailed. During this process, CNN demonstrated admirable professionalism. It delayed its live broadcasts to avoid bloody or gruesome images. It broadcast only live images. It refrained from conducting its own investigative report, to avoid interfering with the manhunt. It eschewed rumor-mongering. It even glossed over the fact that the wounded suspects and victims ended up in the same hospital. It refrained from unnecessary in-depth investigations. Police exercised discretion before making information public. They refrained from leaking the names of suspects questioned. The suspect was arrested the very next day. The hot topic for the media was whether the suspects had been Mirandized before they were arrested. Compare the two cases, including the conduct of the prosecutors, the police, and the media. The difference in their levels of professionalism is obvious.

Prosecutors, police, and the media should review their performance and seek improvement. The crux of the problem however is the source of the leaks. Public prosecutors and police authorities were the ones responsible for piecemeal leaks in violation of case confidentiality. Any information made public by the government is newsworthy. Can the media justify not reporting it? Expecting the media to refrain from reporting news released by the government is unrealistic. One must demand that the government refrain from its illegal dissemination. Is the media concerned more about reporting the news than media professionalism? If so, then it is unlikely to accuse the government of violating case confidentiality. They may even be thrilled to get an exclusive.

It is not hard to see why prosecutors and police invariably violate case confidentiality, why they never tire of it, even though it is illegal. Calculated leaks to the media are a good way for the government to pander to the media, to control the spin on news stories, and to control, manipulate, or even punish the media at its discretion. Journalists who cooperate with police and prosecutors are provided with information. Those who refuse to play ball are punished by being denied information. Over time, the media becomes conditioned to reporting whatever it is fed. It loses its ability to evaluate the news critically. This allows the government to orchestrate public opinion, creating preconceived impressions that give the government an edge. Then when the government announces that the case has been solved, it can take a bow. Needless to say the officials involved receive incentives and bonuses. As for breaching the confidentiality of investigations, the media, fearing collateral damage, is not about to point fingers at the government. How often does one hear of internal discipline? Who gives a damn about the law? The process is a vicious cycle. Case confidentiality is violated on a daily basis. What we have is not "law and order," but "law without order." Who knows when we can get to the bottom of this mess?

How can we bring order out of chaos? It will not be easy. The upper ranks of prosecutors and police must demand strict adherence to the law. The media must exercise restraint, and not report information that should not be reported. It must demand that the government obey the law. The victims must demand that prosecutors and police not violate case confidentiality, and demand state compensation. Otherwise, expecting prosecutors and police to change their ways and respect case confidentiality, is wishful thinking. Three solutions suggest themselves. The most effective of these is for victims to demand state compensation and an investigation into the conduct of prosecutors and police authorities. We hope the victims in the Mamma's Lips Coffee House case demand state compensation. Doing so could be a key step in the investigation of prosecutors and police authorities who violate case confidentiality. It could bring an end to this state of "law without order."
   
中時電子報 新聞
中國時報 　2013.04.25
社論－檢警亂放話害到人 就應國家賠償
本報訊

    　「偵查，不公開之。」是《刑事訴訟法》明文規定的辦案原則。此一原則主要是在限制辦理刑事偵查案件的檢警人員，在偵查期間，因為案件處於偵查進行之中，狀況尚不明朗，也未臻成熟，不能任意對外透露案情與偵辦進度，規定的主要用意至少有三：一是保護涉案者的名譽，二是避免誤導公眾、影響日後的審判，三是避免洩露案情，形成辦案障礙。

    　然而多年以來，台灣檢警辦案，偵查不公開的規範愈見鬆弛。最近大案頻傳，違反偵查不公開原則的案例，更是司空見慣，形成有法無天的現象。前陣子喧騰一時的媽媽嘴雙屍命案，檢警開始時朝凶手不只一人方向辦案，對外釋放消息，媽媽嘴呂老闆、歐顧問與鍾姓友人被說成有共犯嫌疑，媒體名嘴大肆炒作，繪聲繪影；一個月後案件偵結，方向扭轉，只起訴一位女性被告，呂、歐、鍾三人均受不起訴處分。然則他們業已飽受社會異樣眼光、以殺人重犯相責之苦，所經營的咖啡館也因而一度營業中斷，損失之大可知。此當然與媒體報導有關，但受害的源頭，卻與檢警不顧偵查不公開原則釋放辦案消息方向息息相關。此為近例之一。

    　高鐵及立委服務處遭放置炸彈案，警方迅速透過兩岸司法協助機制，將鎖定的胡姓與朱姓嫌犯兩人解返台灣，然而偵訊期間辦案人員又不斷對外釋放消息。偵查中隨時放話，顯然不把偵查不公開放在心上；其實，觀察其放話內容，按照證據法則來說，也極不專業，但任意對外放話，將誤導視聽，甚至影響日後的司法審判。

    　於此同時，美國波士頓地區也發生馬拉松賽跑炸彈客恐怖主義案件，為追捕嫌犯而封鎖全城，風聲鶴唳；在此過程中，ＣＮＮ發揮了高度的專業精神，現場轉播的資訊延時播送，以免出現血腥或不雅的畫面，並且也只傳送就地目視影像，不另做調查報導，以免妨礙追緝行動安全，全無口水八卦，連受傷的嫌犯與受傷民眾住在相同的醫院，也只輕輕帶過，不做無謂的深入追蹤。警調發布資訊亦高度審慎，不輕易片段透露嫌犯受偵訊的內容。而嫌犯就擒的次日，媒體熱烈討論的話題竟是嫌犯被捕前未受例行權利保障告知是否合憲合法。兩相比較，從檢警到媒體，專業表現的差距極其明顯。

    　檢警與媒體也許都應該檢討改進，但是問題的癥結毋寧在消息的源頭，也就是在偵訊犯罪的過程中不斷片面、片段發布消息而違反偵查不公開的檢警機關。只要是政府發布消息，但有新聞價值，媒體豈有不報導之理？與其期待媒體不去合法報導政府發布的消息，不如要求政府不違法發布消息。然而如果不是純從專業精神出發，只是有消息，媒體大概不會經常指責政府違反偵查不公開，甚至可能因為獲得了獨家消息而沾沾自喜。

    　於是人們不難發現檢警為何總是違反偵查不公開，而且樂此不疲的原因了。雖然違法，但是洩露偵查資訊給媒體恰是討好、導引、牽制、操弄，甚或是選擇性制裁媒體的好方法，與檢警配合的記者或媒體就多給資訊，不配合的就少給資訊以為制裁。久而久之，就讓媒體養成了給什麼就報什麼，失去批判的能力；於是就可以主導輿情發展方向，造成既成印象掌握日後在審判中成功定罪的優勢；宣布破案時獲得掌聲，得到內部獎勵獎金，自是不在話下。至於違反偵查不公開，媒體投鼠忌器當然不會認真責備，幾曾聽說會在機關內部發動嚴格制裁？又有誰會把法律放在心上呢？惡性循環之下，違反偵查不公開原則的現象遂不知會伊於胡底。這就是為什麼「有法無天」的情景會天天上演了！

    　要如何撥亂反正呢？恐怕不容易，除非檢警機關高層能夠形成嚴格自我要求守法的政策，除非媒體能夠寧可忍住不報不該報導的資訊，也會要求政府守法，除非受害的當事人要求檢警機關因為違反偵查不公開造成損失而請求國家賠償，否則，期待檢警人員會改變惡習，恪遵偵察不公開，只怕是緣木求魚。看起來，上面三個「除非」中，最可能發生效用的，就是受害人訴請偵查中發布消息的檢警機關國家賠償了！我們希望，媽媽嘴案中打算請求國家賠償的受害人，會是偵查不公開原則遭到檢警機關踐踏、有法無天惡劣景觀的終結者。