Chief Moose's Memoir About the Beltway Sniper Case:
Good Book Idea, Bad Timing

By BARTON ARONSON

Wednesday, May. 21, 2003

Before John Muhammad and Lee Malvo started murdering people last fall, Montgomery County Police Chief Charles Moose was the reasonably well-regarded chief of a reasonably well-regarded county police force. A good man, unquestionably. But probably not a man to command a six-figure advance for his life story.

All that has changed. When, for weeks, Washington D.C. and its surrounding (and not-so-surrounding) suburbs were paralyzed by two men on a killing spree, Chief Moose was the public face of the manhunt. His press briefings were broadcast around the world. His manner before the cameras was perfect: our anguish showed in his face, our fears were calmed by his words, and our hopes were expressed in his soldierly professionalism.

For those of us who lived in Montgomery County - who feared for our kids' safety as they traveled to and from school, and who required them play indoors for weeks - not much other than Charles Moose brought us comfort.

And most of us, I'll venture, wish him well, and feel no bitterness about the $170,000 a publisher is paying him for the story of his life, and in particular, of his experiences in the sniper case. But Montgomery County's Ethics Commission has now told Chief Moose that he can't publish his book - or at least, he can't get paid for it, because that would be using the "prestige" of Moose's office for "private gain."

The Commission is unquestionably right as a matter of Montgomery law. But far more troubling than Chief Moose's desire to cash in on his date with history is the timetable on which he wants to do so. Chief Moose plans to release his book in the fall - just as Muhammad and Malvo are coming to trial.

There is no question that Charles Moose should write a book. And maybe he should even be paid for it. But not now.

The Problem with Chief Moose's Timing: Trial Has Not Yet Occurred

Chief Moose's proposed timing is extraordinary. Books by police officials or prosecutors published before a case has gone to the jury are nearly unheard of. Afterwards, of course, the floodgates open; memories of O.J. books (especially prosecutor Christopher Darden's embarrassing entry) are still painfully fresh. But until a case has been tried, the job of law enforcement has historically been to get the case ready for trial, not to spend time profiting from it.

The reason for that is simple: the investigation of every case continues up to, and through, trial. It doesn't stop with an arrest, or an indictment, or even jury selection - cops work on a case until the jury renders a verdict. And cops working a case don't talk about the case until it's over.

What would Chief Moose say if one of his detectives wanted to publish a book on a case on which she was currently working? He wouldn't even entertain the notion. He should apply the same standard to himself.

Virginia, not Maryland, is handling the first prosecution, but that hardly changes things. The first prosecution is always the most important, and there can be no question that Montgomery County is still playing a major role. Chief Moose is the head of a department actively investigating a case of crucial importance. In light of his public role, he cannot also be the source of private comment on that case.

Confidentiality Protections and Offers to Show the Book to Prosecutors Are Not Enough

Defenders of Chief Moose's decision to publish now have noted that the Chief is barred by law from revealing confidential information in his book. They have also reacted with indignation at the notion that Moose would write anything that would interfere with the prosecution. And they have noted Chief Moose's offer to show the book to prosecutors before the public sees it.

But the Chief's intentions are beside the point, and his offer cannot cure the harm publishing his book now will predictably cause.

The manner in which the police investigate a case is fair game at trial. The parties will hotly contest which aspects of the investigation can or can't go before the jury - and their views may evolve as the trial progresses. Chief Moose has no right to arrogate to himself the power to put evidence relating to the investigation before the public eye at the same time that the trial judge is considering whether such evidence is admissible. It is hard enough to keep jurors in high-profile cases from being exposed to possibly prejudicial information without a book like this one.

Meanwhile, prosecutors with plenty to do will have even more to contend with. Moose's offer to show them the manuscript prior to trial is not very helpful: their job is to get ready for trial, not to edit his book. And if anything in the manuscript could conceivably be viewed as exculpatory to the defendants, or as undermining the credibility of prosecution witnesses, the prosecution will have to turn it over to the defense as well.

Even if none of this comes to pass, it is simply unseemly to have a police officer interject himself into a criminal case in this unprecedented manner. Now prospective jurors will have to be asked if they've read the book; chosen jurors will be instructed not to read it, or talk to anyone who did. And all this will occur simply because Chief Moose cannot wait until the trial is over to publish. Why? Apparently for no better reason than to maximize his book sales.

The "Public Official" Argument: Not a Persuasive Rationale For Chief Moose's Book

Chief Moose's oft-stated view that he's no different from other public figures who write books also fails to persuade. Government officials rarely write books about the matters in which they are actively involved while they are in office. Secretaries of State, for instance, do not write about diplomacy as they are conducting it - in part because diplomacy, like investigative work, involves some measure of secrecy.

Even when public officials do write books, they involve matters quite different from an approaching criminal trial. Chief Moose's lawyers have, for example, likened his book to a recent one by Justice Sandra Day O'Connor. But the Justice scrupulously observed the customary restriction on addressing matters before the Court. Moose's book is far more like a book by a judge about an unresolved matter before her.

The Key Difference Between a Criminal Trial and A Public Policy Controversy

Moose's book is also nothing like those books written by elected officials. Politicians generally write about, well, political stuff - subjects about which there is not only interest, but an ongoing debate.

A prosecution is a matter of public interest, but it is not supposed to be political. The important decisions - guilty or not? - are made in the courtroom, not the court of public opinion. And they are factual decisions, not decisions about what policy to choose or what opinion to hold. They are guided by evidence, not personal or policy preference.

We have safeguards, such as ethical limits on lawyers' speech before a trial, precisely to ensure the integrity of the prosecution. Journalists, of course, do not ordinarily respect these limits (it's essentially their job not to), but law enforcement officers do. A book published before trial by one of the lead investigators on a case does violence to this arrangement.

Finally, there is another difference between books on truly political issues and Chief Moose's forthcoming tome. Political issues are evergreens. The poor are always with us, as the saying goes, so it's fine to write about welfare reform in any season.

But the prosecution of the snipers will, for all intents and purposes, be over in about a year. True, there will be appeals and maybe even other cases, but the only pristine courtroom engagement will be the first one. That's all the more reason to leave it that way.

To ask Chief Moose to wait that year is only to ask him to respect a fair and traditional balance between the needs of the process and the legitimate desire of Charles A. Moose to write a book. If he just waits until after the first trial is complete, the Chief can manage both to do well, and also to do good.


Barton Aronson is an attorney in Washington, D.C. Previously, he was a prosecutor there, and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.

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