[Richard K. Sherwin] Justice in an age of smartphones

NEW YORK ― On Oct. 3, an Italian appeals court overturned Amanda Knox’s murder conviction and ordered her immediate release from prison. In 2009, both Knox and her former boyfriend, Raffaele Sollecito, were found guilty of the 2007 sexual assault and fatal stabbing of Knox’s housemate, Meredith Kercher. Knox was sentenced to 26 years in prison. She served four years before being released.

The acquittal was based largely on the absence of credible forensic evidence linking Knox to the crime. The prosecutors had claimed that Knox’s blood was on the murder weapon. But their DNA testing turned out to be so shoddy that the appeals court felt compelled to reject it as unreliable.

Less discussed than the suspect DNA evidence is whether a graphic digital animation also contributed to Knox’s conviction. In his closing argument at trial, Perugian prosecutor Giuliano Mignini played a computer-generated simulation that showed an avatar-Amanda killing an avatar-Meredith. It ended with a gory crime-scene photo of Kercher’s body. The animation now seems to have been a mere fantasy, an animated version of the prosecution’s theory featuring Amanda Knox as a sex-crazed femme fatale, “Foxy Knoxy,” as the British tabloids called her, a “she-devil,” as many European journalists wrote, appropriating the prosecutor’s phrase.

In Italy, the acquittal triggered a wave of self-recrimination. Outside the courthouse, groups of onlookers shouted “Vergogna! Vergogna!” or “Shame! Shame!” Vittorio Zucconi, writing in La Repubblica, adopted a less accusatorial tone: “In the end, it was the trial of a different culture, a clash of cultures more than a legal case,” Zucconi argued. “The same girl whom prosecutors depicted as a she-devil starved for sex and orgies was, in inverse proportion, perceived in American public opinion as a chaste diva who fell into a hornets’ nest of inept, evil men.”

But this view assumes that law and culture are two separate worlds. They aren’t. Effective prosecutors and defense lawyers mine the popular imagination for well-known characters (“she-devil,” “femme fatale”) and stock scripts (“sex game gone wrong”) to help frame their story in court. And, increasingly, their advocacy begins well before the courtroom doors open.

Through leaks to the media, interviews, social networking, and specially designed Web sites, lawyers often disseminate their narratives in the court of public opinion. Once a narrative frame is set, so, too, is the belief system that it embodies. Within that belief system, dissonant details get pushed away, while consonant ones leap to observers’ attention.

This is important to trial lawyers because there are always gaps in the evidence. It is difficult to reconstruct past events. But with a recognizable story frame and a cast of familiar characters in hand, they can coax their audience (jurors and judges alike) to fill in missing details. “This is how that kind of story goes.” “That is how this kind of person behaves.” The audience’s experience of the world puts flesh on the bare bones of a prosecutor’s or defense attorney’s legal theory. Thus begins the battle for prospective jurors’ hearts and minds. In this sense, media strategies are legal strategies.

This helps to explain why Amanda Knox’s family hired a public-relations firm soon after her arrest in 2007. During the lead-up to the appeal of her conviction, strenuous efforts were made to rehabilitate her character. The Knox family needed to take back her image from the clutches of the Italian prosecutors and the tabloids. “Foxy Knoxy” now turned out to be a reference not to her social life, but to her prowess at soccer. And in place of the “she-devil” story, we get the familiar tale of an American innocent abroad caught up in a Kafkaesque nightmare.

This battle over story lines plays out even more powerfully on the screen than it does in print. In an age of smartphones and ubiquitous surveillance cameras, events that once would have gone unrecorded are preserved for posterity and, inevitably, for trial. At the same time, digital graphics and animations take decision makers anywhere and everywhere ― into the body in medical malpractice cases, inside complex machinery in patent-infringement cases, or on the scene as a virtual eyewitness to murder in a criminal case.

Videos and animations are powerful tools in the search for fact-based justice. But they also create new stumbling blocks. As viewers, we may think we are getting the whole picture, but every camera frames its own point of view. With equal certainty we may believe in the digital images that we see, but how can we be sure of their basis in reality? Once we enter the domain of digital simulation, how do we keep from slipping into an endless matrix of appearances? When the judge and jury watched the prosecution’s animation video at the Amanda Knox murder trial, whose fantasy did they enter?

The growing use of videos, simulations, and sophisticated graphics (DNA analysis included) as a basis for legal judgments exposes the vicissitudes of justice in the digital age. Adapting to these changes with our justice systems’ credibility intact will require broad cultivation of a more refined capacity for critical visual judgment.

By Richard K. Sherwin

Richard K. Sherwin, professor of law and director of the Visual Persuasion Project at New York Law School, is the author of “Visualizing Law in the Age of the Digital Baroque: Arabesques & Entanglements” and “When Law Goes Pop: The Vanishing Line between Law and Popular Culture.” ― Ed.

(Project Syndicate)