Deferred prosecution agreements silence and extort journalists
Seth Stern
October 4, 2023
Yuma, Arizona police arrested and assaulted journalist Lucas Mullikin for legally recording them and requesting a badge number. He's the latest journalist who had to accept a "deferred prosecution" deal to get rid of baseless charges against him.
Prosecutors pushing frivolous cases against journalists have a little-known trick in their bag: deferred prosecution agreements. Rather than dismiss charges arising from unconstitutional arrests, they offer journalists a “deal” to throw out the case in, say, one year, as long as they behave themselves. Sometimes they even charge the journalist a fee for the privilege.
That’s what recently happened to Arizona journalist Lucas Mullikin. When he tried to record a violent trespassing arrest by the Yuma police in May, an officer illegally shoved him away from the scene and threw him to the concrete. The entirely inappropriate level of force was made more egregious by the fact Arizona courts had already ruled that a law trying to restrict how closely people could record police officers was unconstitutional.
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But the last straw was when Mullikin got off the ground to demand his assailant’s badge number. “You’re under arrest,” the officer responded, before assaulting the journalist yet again.
For that, Mullikin was charged with resisting arrest and failing to obey officers. He told the U.S. Press Freedom Tracker that prosecutors first offered him a “deal” that would’ve required him to spend 40 days in jail. When he declined, the next offer was a “deferred prosecution” agreement whereby charges would be dismissed so long as Mullikin isn’t arrested again for a year. If he is, prosecutors are free to resume the case. Mullikin accepted those terms in September.
It’s understandable why a freelance journalist like Mullikin would agree to a deal like that rather than risking jail time and paying lawyers to fight the charges. But the potential chilling effect on journalism is obvious. To avoid prosecution Mullikin needs to make sure he’s not arrested again by the same police department that already demonstrated its willingness to handcuff him for doing his constitutionally protected job. How could he not at least think twice about hitting “record” if he witnesses more abuses by police?
Mullikin was also forced to pay a $500 “deferred prosecution fee” despite not pleading or being found guilty. Prosecutors must think calling it a “fee” rather than a “fine” lets them evade double jeopardy if they end up prosecuting Mullikin. But if it’s not a fine then what’s the basis for the charge? Authorities can’t have it both ways — either double jeopardy bars further prosecution or they effectively sentenced Mullikin without due process (or both). Mullikin has said he’s considering filing a lawsuit over his violent and unconstitutional treatment by Yuma police — let’s hope he recovers far more than $500.
Arizona isn’t the only state playing these games with journalists’ constitutional rights. New York photojournalist Stephanie Keith also accepted a deferred prosecution agreement in August. It was her easiest way to get rid of a baseless case arising from her photographing officers at a vigil for Jordan Neely in May. Chief of Patrol John Chell said at a press conference that Keith had somehow interfered in three arrests but video from the vigil showed no such thing. The New York City Civilian Complaint Review Board has reportedly opened an investigation.
Rather than dropping the baseless case like they should have, prosecutors offered Keith a deferred prosecution agreement whereby charges will be dismissed if Keith doesn’t get in further trouble for six months. But that’s cold comfort as long as the New York Police Department considers recording cops to be troublesome in the first place.
Police departments that wrongly arrest journalists for doing their jobs need to own up to it, apologize, and discipline the officers involved — not abuse their leverage to attempt to extract obedience and money from journalists they know did nothing wrong.
But that only seems to happen in cases that get enough attention to embarrass officials. As we’ve said before, the national media needs to cover cases like Mullikin’s and Keith’s so prosecutors stop getting away with taking advantage of independent journalists.