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by Heidi Howard (an unfinished?? paper... but good)

Few things in television news have been as "entertaining" as the low speed chase of a Ford Bronco across the freeways of Los Angeles last June. Two people were dead. A third was allegedly threatening to kill himself. And millions across the country, and, in fact, around the world, tuned in to watch a spectacle. Since that day, the OJ Simpson murder case has received more newspaper and television coverage than any crime in recent memory. Since recent memory also includes cases like Jeffrey Dahmer, Amy Fisher, William Kennedy Smith, Oliver North, the World Trade Center Bombing, and the Menendez case, that means that there is, cumulatively, a large amount of television, radio, newspaper, newsmagazine, and information superhighway coverage of these criminal court cases.

In this age of increasing access to instantaneous information, and the merger between news and entertainment, with all the benefits and troubles that can confer, it is important to investigate the rules and privileges conferred on the participants, both inside and outside the courtroom, including the media, the prosecution, the defendant, the judge, the jury, and the witnesses, and in doing so, briefly examine the history of courtroom press coverage, from newspaper reporting to cameras in the courtroom. Technology provides we the public with access to events which could not become elements of popular culture in any other way; this situation goes far beyond the courtroom, into wars like the Persian Gulf War, or incidents of peace, like the fall of the Berlin Wall, as well as entertainment like the Super Bowl or Academy Awards Show. As a visual medium, television is tied to visuals and to sound bits of fifteen to thirty seconds, and stories without visual potential, or where the players do not speak in soundbites, can be either rejected despite potential newsworthiness, or presented in a biased manner.1 A trial which is televised leads the printed press to devote more attention to the case, and concentrate on the visual aspects of a crime or trial in ways which would be inadmissible in a courtroom. For example, in the Joel Steinberg trial of 1989, New York Newsday reporter Timothy Clifford pointed out that the case received far more attention in the press than did the case of Robert Chambers which occurred earlier the same year, but was not televised. Clifford filed stories for 40 consecutive days, in conjunction with the trial, even on days when court was not in session, composing features with sidebars, as he competed with the broadcast media and other print journalists in turning the case into a media event.2

In other cases, television networks, magazines like The New Yorker and Vanity Fair, and newspapers, have culled testimony from televised trials, for insertion into general story constructs requiring sex, violence, scandal, greed, and high courtroom drama. Journalists have said that reports on and references to trials, even in entertainment-oriented magazines3 or on programs funded by entertainment budgets of television networks,4 provides the public with a glimpse into the workings of the justice system, and, as journalists are granted specific first amendment protections, it seems that restrictions on press coverage of criminal trials, no matter the format or the accuracy of the reportage, is virtually unregulatable and uncontrollable. However, there are rights which a defendant possesses which indicate that the jury can and should remain protected from contamination by inadmissible evidence, opinion, and factual inaccuracies presented by the media.5 This paper will analyze issues raised when trials have been reported on, and become publicized in the local and the national community, examine the balance among the First Amendment right of the press and of the participants in the court proceedings, and finally, focus on judicial actions which can attempt to ensure the defendant's right to a fair trial is not destroyed by a contaminated jury pool.

A Historical Context

In Puritan times, a Witchtrial was a community event, as was the execution of a convicted witch, the stockading of a notorious criminal, or even an ordinary trial. In the trial of Aaron Burr, accused of murdering Alexander Hamilton, Chief Justice John Marshall held that a juror was impartial if he was free from the dominant influence of what was heard or read outside the courtroom, and were able to base a decision based on only what was heard inside the courtroom.6 In the 1920's the Fatty Arbuckle rape and murder case rocked Hollywood, and was subject to media scrutiny from the national press. In 1935, newsreel and newspaper coverage of the Lindbergh Baby Kidnapping trial7 resulted in the American Bar Association enacting Canon 35 of the Code of Judicial Conduct to regulate press coverage of criminal trials. That version read

Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting of court proceedings are calculated to detract from the essential dignity of the proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted.

The Canon was based on the conclusion that photographing, filming, recording and broadcasting courtroom proceedings would compromise the defendant's right to s fair trial, and that such activities were inherently disruptive. As motion and still cameras became less disruptive, the press again attempted to enlarge media coverage of trials. Billy Sol Estes, an associate of Lyndon Johnson's, was on trial on charges related to financial and trust improprieties. He appealed his conviction to the Supreme Court, on the grounds that the press coverage denied him his Sixth Amendment rights. Justice Harlan said that in a "highly publicized and highly sensational affair," such as a "criminal trial of great notoriety," there is a probability that prejudice against the defendant will result, and therefore, televising hearings and proceedings from such a trial is "inherently lacking in due process."8 The following year, in overturning Sam Sheppard's second degree murder conviction, the Court held that the judge has a responsibility to prevent press coverage of a trial to interfere with courtroom proceedings.

"[B]edlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Sheppard...[T]he judge lost his ability to supervise the environment."9 F. Lee Bailey represented Sheppard before the Court, and pointed out to the Justices how press coverage both inside and outside the courtroom, from the day Mrs. Sheppard was killed, interfered with Mr. Sheppard's right to due process. The coroner held an inquest in a school gymnasium with a "swarm of reporters and photographers in attendance...[and] the coroner...reciev[ing] cheers, hugs and kisses from the ladies in the audience."10 An editorial in the Cleveland Press entitled "Quit Stalling - Bring Him In" insisted that the police arrest Sheppard, and they did within a few hours. Every juror, except one, testified in voir dire to reading about the case in the local press, or seeing or hearing broadcasts about it.11Members of the press were given all the seats in the courtroom, except the one reserved for Shepperd's family, and a television station broadcast from a room next to the jury room. The proceedings were published in the papers, and the testimony of "each witness was printed verbatim in the local editions, along with objections of counsel, and rulings by the judge."12 The Court noted nine examples of "intense publicity," including a live radio debate on WHK where a participant "asserted that Sheppard conceded his guilt by hiring a prominent criminal lawyer;" when the defense counsel complained, the trial judge replied, "WHK doesn't have much coverage."13 Hundreds of reporters watched the jury visit the crime scene, and two widely publicized columnists, Walter Winchell and Dorothy Kilgallen, reported on the case in stories which were heard by at least two jurors, who both asserted that it would not influence their verdict. Kilgallen's report included an interview with the judge, who said that Sheppard was guilty, and the case was open and shut. Eleven of the jurors said they had heard at least some pretrial publicity. Irrespective of the presence of the media in the courtroom, the Sheppard case was controlled, dominated, and adversely affected by the reporting done outside the courtroom, in conjunction with the judge's refusal to assert any control over their behavior.

Murphy v. Florida examined whether a criminal could be so notorious that an impartial jury panel could not be seated, despite the precautions laid out in Sheppard. Murphy, or "Murph the Surf," was known to all the jurors from news accounts of a prior felony conviction as well as certain facts about the crime for which he was on trial.14 Thurgood Marshall, writing for the Court, looked back to Marshall v. US,15 and noted that information in a newspaper is capable of prejudicing the jury because news stories are not subject to rules of evidence and other courtroom safeguards. However, he noted, prior exposure alone is insufficient to allow the court to conclude, preemptively, that the defendant was deprived of due process. The Court examined the totality of the circumstances, and found that if the juror were actually, provably prejudiced by pretrial publicity, or if the "general atmosphere in the community or courtroom is sufficiently inflammatory," the community sentiment can be so poisoned against the defendant "as to impeach the indifference of jurors who displayed no animus of their own."16 Nebraska Press Association examined whether a judge can place a prior restraint on the press, when the media wishes to present information contrary to the defendant's interest. In that case, the judge allowed reporters into the courtroom on the condition that they not report any testimony or the existence of the order preventing them from reporting the testimony. A later, more specific order, prevented publication of five subjects: the existence of contents or a confession; statements by the defendant to other people; contents of a note written by the defendant the night of the crime; medical testimony; and the "identity of the victims of sexual assault, and the nature of the assault."17 Justice Burger noted that even "pervasive, adverse [pretrial] publicity...does not invariably lead to an unfair trial," as juries have the opportunity to place publicity in the proper perspective, and the judge has the ability to mitigate the potential damage, under the Sheppard ruling. He also noted that, while prior restraints were presumed to be infringements on the rights of the press, the First Amendment is not absolute, and it is plausible that prior restraints could be necessary, if no alternative measures were available to the court.

By 1981, the Supreme Court was prepared to revisit the issue of cameras in courtrooms, and in Chandler v. Florida, ruled that Estes did not ban cameras from the courtroom, but rather, because of advances in technology, unobtrusive camera coverage did not violate the defendant's Sixth Amendment. In the 80's, the Court granted more and more access to journalists intent on reporting on various pretrial aspects of court proceedings, which had previously been closed to the public and the press.18 The press asserted that every phase of a trial should be open to the public, and to the press, who operate as a surrogate for the people who cannot attend a trial.19 The Court focused first on the openness of the trial proceeding itself, and found that the public has no Sixth Amendment right to attend pretrial proceedings, as that right is personal to the accused,20 although there is a right of the press and the public to attend trials, where there is no constitutionally valid, specified, evidence presented to the trial judge asserting an overriding interest in closing the courtroom.21 Likewise, absent overriding interests, the press has a right to attend the voir dire of prospective jurors, although the individual jurors have a right to ask the judge to close the courtroom during particularly sensitive moments in the voir dire process. Finally, the Court concluded, in the second Press- Enterprise case, that pretrial proceedings are to protect the liberty of the accused, and because the proceedings focus on a personal right of the defendant, the judge can close the courtroom if the defendant presents evidence that not removing the press and public will unfairly prejudice his rights to a fair trial. Where the press is allowed into a courtroom, or otherwise obtains information through lawful means, the judge cannot prevent the press from reporting that information to the public. Nebraska Press said that when the media is invited into a courtroom, even if they could have been excluded, publication of information revealed there cannot be subject to prior restraint. For example, the public has traditionally been kept out of juvenile proceedings, and likewise, the press has not been able to report on the testimony or other information contained in sealed records. However, anything available on public records cannot be withheld from the press or prevented from publication.

The Rights and Responsibilities of the Press

The press cannot publish information obtained through unlawful means. In other words, a reporter cannot steal sealed records, and publish information gleaned from them in a newspaper. A reporter cannot record the testimony or statements in a closed courtroom, either by video camera or audio cassette recorder. The press can, however, publish incorrect information with no fear of judicial repercussions, and, unless the statements fall under various defamation laws, there will be no civil repercussions either.22 Before New York Times v. Sullivan, statements which damaged the reputation of a person were not considered well protected by the First Amendment,23 but after that case, states were given the opportunity to protect reputations in ways which were consistent with the First Amendment. The court in Sullivan held that there is a privilege for criticism of official conduct, where the only speech which could be regulated would be that which is made with 'actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not."24 Walker extended the lack of protection for public officials to all public figures, as members of both groups have access to the press, to correct errors and defend themselves against allegedly libelous statements, in a manner that an ordinary member of the public cannot.25 Private figures, at issue in Gertz, however need not prove "actual malice" to prove the plaintiff is guilty of libel.26 Generally, defendants in criminal cases, as well as their lawyers, have been found to be public figures, although there may be some question as to whether witnesses who have been subpoenaed to testify are considered public figures.27 Firestone indicated that the "public interest in accurate reports of judicial proceedings is substantially protected by [Cox Broadcasting v. Cohn and] inaccurate and defamatory reports of facts [are] matters deserving no First Amendment protection.28

Despite the Court's conclusion that inaccurate statements do not merit First Amendment protection, the fact that subtle gradations of truth can be present even in facially inaccurate statements, or in juxtapositions of words, sounds and pictures in the broadcast press, generally, the media is able to get away with reporting anything which they are either told by a source, discover through observation, or determine through assumption.29 Following Masson v. Malcolm, James Goodale, a media law defense specialist, said that when the court said that Masson was not libeled when Malcolm paraphrased statements which he made to her, and passed them off as direct quotations, the court gave "reporters more confidence in reporting substantially what their sources say, rather than being tied to someone's exact words."30

In criminal trials, responsible journalists can reflect on the categories of prejudicial publicity which can harm a defendant's right to a fair trial, and refrain from reporting such publicity in protection of the defendant's rights. These classifications are publicity relating to either the strength of the state's case or the guilt of the accused, where that information is procured or cooperated in by law enforcement authorities, the testimony of witnesses not offered by the prosecution at trial, evidence which would have been inadmissible if offered at trial, information which makes trial jurors into celebrities, and publicity charging guilt or attacking the character of the accused.31 While these categories are good indications of the types of information which, if publicized, could affect a defendant's right to a fair trial, it is unlikely that journalists would allow such guidelines to control, or even affect, editorial decisions.32

In the courtroom, the press has the right to record the proceedings and pass the information gathered there on to the public, as all proceedings are matters of public record. As noted above, the press generally has access to every proceeding to which the public is admitted, and only in cases where there is a strong showing of imminent harm to the defendant's right to a fair trial will there be cause of a judge to close the courtroom to protect the defendant's Sixth Amendment rights. Rules can be promulgated to ensure that admitting the electronic media does not "interfere with the rights of the parties, diminish the dignity of the court, or impede the orderly conduct of the proceedings."33

By televising trials, Steven Brill has said, the media are forced to be more accountable for what they report. Because the public can access testimony from the trial by watching it on television, both print and broadcast reporters are allegedly forced to adhere to what actually was said in court, rather than paraphrase testimony and provide opinions as to demeanor.34 However, commentary by so-called "experts" on networks such as CNN and Court TV,35 the broadcast of facts which are inaccurate,36 and the ability to broadcast or print sound bites which show one side of testimony, without broadcasting the cross examination or rebuttal to that testimony,37 can create false pictures of the defendant in a manner that both misinforms the public, and can infringe on the defendant's Sixth Amendment rights, as can the risk that jurors in a highly publicized trial will come to a conclusion that is either based on inadmissible evidence,38 or is structured to comport with societal pressures.39

Brill says that journalists should adhere to a Code of Professional Responsibility which is adhered to on a voluntarily basis, as the First Amendment prohibits the state or federal government from mandating adherence. The elements laid out in this code all discuss things which a reporter now can do, with no fear of repercussions under the law, because it would be unconstitutional for the legislatures to prevent the reporters from exercising their rights to Free Speech and a Free Press. Some "commandments" in the Code are as follows:

A journalist should never lie or mislead a reader in any way, either by commission or omission.

2. A journalist should always use language and information that is as exact as possible and as firsthand as possible, and never make it seem more exact or firsthand than it is.

4. A journalist should always be candid about the quality and certainty of his or her information.

8. [A journalist's] first priority...is not to entertain or otherwise attract an audience or please advertisers but to give people information that they think is important for them to know.

9. Under the banner of "the public's right to know," journalists should not fail to balance the importance of what they want to report with the negative consequences of reporting it."40

At present, journalists are not prohibited from reporting exaggeration, extrapolation, association, falsities, opinion, hyperbole, inaccuracies or other information which could be detrimental to a defendant's right to a fair trial, as long as the information they are reporting is not libelous, and is obtained through legal means. For example, in the OJ Simpson case, no reporter felt judicial repercussions after reporting that a bloody ski mask was found at Simpson's home. Nor were any penalized for reporting the untrue statements regarding the DNA of the victims, although some reporters were chastised by Judge Ito for continuing to report that story, even after he said that it was untrue.41

What the System Can Do to Protect the Defendant

The judiciary, the bar and the press have attempted to develop a voluntary solution to the problems related to prejudicial publicity, although the receptiveness of the parties has varied over time. Because of Supreme Court decisions in favor of the news media, the only actions for a judge to take, barring an obscene situation involving significant adverse publicity, are to argue for the press's self-restraint, protect the jury, and to beg for compromises from the press on coverage.

In the Sheppard case, the jury pool was poisoned by pretrial and contemporaneous publicity of false information, inadmissible evidence, and irresponsible actions by the press. In his opinion for the Court, Justice Clark discussed actions a judge can take to protect the jury pool from contamination, protect the defendant's right to a fair trial, and not infringe the rights of the press to report, and of the participants to speak. The judge could limit the number of journalists in the courtroom, because of space constraints, and to ease regulating the decorousness of their behavior in a way in keeping with courtroom tradition.42 Witnesses could be insulated from extrajudicial information, through admonishment not to read or watch reports about the case in the press, or through sequestration. The judge can control the release of information to the press by officers of the court, officers of the law, and city and county officials, by ordering them not to discuss topics such as the refusal of a defendant to submit to interrogation, refusals to take lie detector tests, the identity of possible witnesses or their probable testimony, or any belief in guilt of innocence. He or she also can warn reporters to check the accuracy of their news reports, and point out the impropriety of publishing material not introduced in the proceedings to reporters who wrote or broadcast prejudicial stories. The case can either be continued until the threat of prejudicial pretrial publicity abates or dies out, or be moved to another county where the level of publicity is less than in the county where the crime occurred. The jury can be sequestered, or denied access to press reports about the case, and, if all else fails, a new trial can be ordered when it appears that the integrity and fairness of the present trial is threatened.43

There are risks inherent in eliminating jurors solely because they have a modicum of information about the case or the defendants, without screening for the affects the publicity has had on the jurors. Jeffrey Abramson has noted that in many recent cases, where either the publicity surrounding a case has not abated, or the judge has refused to allow a transfer for venue, so the juries in highly publicized trials, juries in trials which receive local or national publicity consist of people who are "disaffected and disinterested."44 There are two reasons why it is difficult for a defendant to prove that his right to a fair trial was destroyed by bias among jurors. First, many judges are frequently unwilling to seat, over defense objections, jurors who have been even slightly contaminated by press coverage. Second, the Court said in Murphy that jurors with some extrajudicial knowledge of a defendant's prior criminal record are necessarily capable of being impartial. Under Murphy, a defendant must prove that there was unconstitutional prejudice of an individual juror resulting from pretrial publicity, or prejudice of the overall community against the defendant. As to individual jurors, this can be accomplished by relying on sworn affidavits by jurors which prove bad faith or untruthfulness in the voir dire process, or by examining voir dire transcripts for indications of deeply held prejudice or the strength of an opinion formed on extrajudicial evidence.45 Showing the presence of an inflammatory "general atmosphere" in the community which makes any jury in a given geographical area unconstitutionally prejudiced against a defendant requires a showing that the local press so assaulted the character of the defendant, or proclaimed his guilt in such a manner that it would be impossible to impanel impartial jurors, as in the Sheppard case.

A judge can advise journalists to refrain from publishing certain materials by either requesting the press avoid publication or by foreboding the press from publishing information which journalists have obtained through lawful means. If the defense wants the judge to merely request that specific reporters or news organizations not publish material, the defendant need only show that without such action, a fair trial would be imperiled. The judge can independently decide that certain information would affect the court's ability to impanel an impartial jury, as Judge Ito decided when he asked Connie Chung, Larry King and Geraldo Rivera not to interview Faye Resnik about her book about Nicole Simpson. The press can reject the judge's request, as Chung and Rivera did, or accede to it, as did King.46 Before placing a mandatory prior restraint on the press, the judge requires proof that without such restraints, a fair trial is impossible. The judge must examine the nature and extent of the pretrial coverage, determine whether measures other than prior restraints would be likely to mitigate effects of unchecked pretrial publicity, and demonstrate the effectiveness of a restraining order in preventing the threatened danger.

Some courtrooms, including those featuring trials of juveniles, are traditionally closed to the public, as are in camera proceedings and some pretrial proceedings. In those cases, the judge can likewise exclude the media, under the grounds that the media has no more right than the public to be present at closed door hearings. While there is no Sixth Amendment right of access to trials or pretrial proceedings, there is a common law and First Amendment interest in public trials;47 therefore, the Court discourages judges from closing courtrooms to protect the Sixth Amendment right of the defendant. Denying access to pretrial proceedings is possible where there are "specific, on the record, findings demonstrating that closure is essential to preserve higher values and [the denial] is narrowly tailored to serve that interest.'"48 In Gannett, the Court listed a number of actions a judge could take to avoid closing the courtroom during the jury trial portion of the proceeding, and a number of these alternatives were adopted by the court in subsequent rulings. They include granting a continuance until pretrial publicity settles down, severing the issues so an entire pretrial proceeding does not have to be changed to protect the fairness of the trial, changing venue or venire, so the pool of jurors is uncontaminated, conducting an intensive voir dire to discover the impact of publicity on the attitudes of prospective jurors, granting additional preemptory challenges to allow the defense to dismiss more jurors exposed to pretrial publicity, sequestration of jurors and witnesses, and intense instructions to the jury throughout the trial, to warn them of the dangers of basing a decision on information heard outside the courtroom.49

If a defendant or witness charges a reporter, a publication, or a broadcast or cable entity with libel, he can seek one of four remedies. First is an injunction, either before something has gone to press, or following publication, to remove something from later editions, is possible but are generally unavailable because of gradations of partial truth which are considered too subtle to be subject to blanket injunctions. Second is a right of reply, which gives the person alleging the defamation an opportunity to respond in his own words in the publication which reported the libelous remarks. Miami Herald v. Tornillo noted, however, that a statutorily mandated right of reply can infringe on the First Amendment rights of the publication, as it forces the press to publish things which they would not otherwise choose to publish. Third is a right of retraction, which requires the defamed person to demand a retraction shortly after the defamation. Fourth is the right to financial damages, where the plaintiff recovers moneys in comportment with the damage done to his or her reputation.

A judge has the option of placing restrictions on out of court statements made by officers of the court, and some judges have tried to prevent witnesses from making out of court statements as well. Two problems with such gag orders have presented themselves. First, it was considered ineffective to silence the participants from on the record statements, because it resulted in leaks by both prosecutors and defense attorneys of information which would previously have been on the record. This has led to episodes where judges have held reporters in contempt of court and imposed other sanctions as reporters have refused to identify the sources. In Chicago Council of Lawyers v. Bauer, the court held that the local rules on out of court statements restricted the free speech of the lawyers, noting that foreboding lawyers from out of court comments about the case would be a reasonable action only where the comment would create a "serious and imminent threat to the administration of justice."50 A later case held that, similarly, a defendant's speech can be restricted only where there is a showing of significant, serious, and imminent threat to justice.51 These rules, which may inhibit newsgathering, are probably not subject to challenges by the press, as some cases have indicated that a reporter or press institution has no standing, since the right of free speech is a personal right held by the person whose speech is allegedly being restricted.52

Cameras in the Courtroom

The issue of whether recording the trial for television affects the defendant's right to a fair trial has been litigated in lower courts, but the Supreme Court has not yet ruled on what the affects are in a trial which is recorded by one small, allegedly unobtrusive camera. Both prosecution and defense have complained about negative affects of cameras on witnesses and other courtroom participants, including the lawyers and the defendants,53 but, as the technology has become more and more accepted, cameras are generally considered a fixture in state courts, especially in highly publicized trials. However, critics charge that televising trials affects the participants during the trial, and can damage the jury deliberations and ability to come to the correct verdict. Many of the tests of whether cameras in the courtroom influence either the words and deeds in the courtroom, or alter the jury deliberations have been skewed by the people conducting the test, according to critic Paul Thaler.54 In a study of televised trials, with a particular focus on the trial of Joel Steinberg,55 Thaler said that proponents of televising trials note that underlying and almost imperceptible shifts in courtroom demeanor and jury behavior occur during trials which are televised.56 In other, perceptible ways, lawyers made decisions about motions based on the affect the lawyer expected the motion to have on the mood of the country, because of a belief that the national mood would seep into the jury room.57 Judge Harold Rothwax said that the camera induced the participants, including himself, to behave in a more civilized manner, and found that to be an argument for its continued use,58 Regarding the jury, Harold Fahringer, Claus von Buelow's lawyer during his first trial, said that the jury's independent judgments were endangered where there was "pressure to come up with a socially acceptable decision."59 Even in a trial which does not receive national publicity, the fact that the trial is being televised may affect juror behavior and deliberation. In June, 1992, a mistrial was declared in a Texas case where a woman had sued Texas police officers for arresting her during a protest. During a recess, a producer asked the jurors if she could interview them after the trial. The judge later said that "a juror looking forward to being interviewed on TV or being lambasted by another juror on TV might be less candid during deliberations."60 Societal pressures on jurors are not a new phenomenon which was developed after the advent of cameras in courtrooms, however. The jury in the Shepperd case, for example, was affected by the mood of the city against Shepperd, although no motion picture or video cameras recorded the testimony and other proceedings.

In a Memorandum and Points and Authorities of Court TV in Opposition to Termination of Film and Electronic Coverage filed in November in the case of OJ Simpson, Court TV said that "[e]ven if the [out-of-court] reporting in this case [is] improper and tend[s] to prejudice the defendant, it is manifest that closing the trial [is] not the means to be employed to cure the prejudice or prevent a continuation of the impropriety."61 Merely recording the trial proceedings, Court TV says, does not alter the courtroom behavior or result in any perceptible way, above and beyond the affects from television and print journalism outside the courtroom. Generally, however, the fact that a trial is recorded, and film of testimony is available for newscasts, tends to magnify the attention paid to the case in a way that might not otherwise occur where the television newscasts did not have access to videotaped testimony, suitable for editing into sound bite-laden news stories.62 Marty Rosenbaum of the New York State Defender's Association has said that photographing trials distorts the judicial process, rather than enhances it, for two reasons. First, the pictures on television are not the same as the view from the jurors' box, and can provide the television viewer with a very different perspective than the juror's perspective.63

Second, the commentary by anchors, reporters and commentators, especially those who are not familiar with the details of prior testimony or the judge's rulings, may affect the trial's outcome.64 These two factors, combined with the soundbite quality of television news, can seriously distort testimony, argument,a nd other courtroom activity for the "jury at home." Los Angeles lawyer Harland Braun has said that juries may become irrelevant "in gavel-to-gavel coverage, [where] everyone has a verdict ... if the jury comes back with a decision different than theirs, they say the jury doesn't know what they're talking about," Braun said. The 1992 Los Angeles riots were directly linked, Braun says, to the full- time coverage of the first Rodney King trial, and the violent disapointment with the verdict developed because many viewers did not agree with the jury's decision. Professor Peter Arenella has said that televising trials has led to a disapearence in community deference to jurors becuase viewers who believe what they see in television is either the truth, or the same thing the jury sees, now respect a jury verdict only if it agrees with their own. "They become the 13th juror."65 George Gerbner has noted that the mission of the courts, as deliniated in teh Constitution, is to provide the defendant with a fair trial before a fair and impartial jury. Since the Court has not ruled that there is a constitutional right of the press to televise a trial, as compared to covering a trial held in an open courtroom without the use of electronic devices, the constitutional right to a free press certainly does not require that television be admitted to the courtroom . . . Its guarantee will be met as long as the court is open to those who wish to come, sit in the available seats, conduct themselves with decorum, and observe the trial process. It does not give anyone a concomitant right to photograph, record, broadcast or otherwise transmit the trial proceedings to those members of the public not present.66

The potential affects of televising a trial do exist, and do play a part in the jury deliberations in at least some cases. However, it is not likely that a court would find that it infringed on the defendant's right to a fair and impartial trial, unless the defense managed to prove that a jruor watched the trial coverage on television, and allowed what she saw to affect her deliberations in the jury room. It is likely that a court would find that it did not affect the defendant's Sixth Amendment rights where a judge admonished the jury not to watch a trial, and not to allow themselves to be exposed to broadcast coverage of a trial, and where the defendant could not prove that members of the jury had knowingly defied those rules.

1 Paul Thaler, The Watchful Eye - American Justice in the Age of the Television Trial, p.4 (Westport Press, 1994).

2 Paul Thaler, "On Trial," Media Critic, p.72, 79. In the Steinberg case, Hedda Nussbaum's psychological records were leaked to the press, although they were inadmissible in court. Thaler also noted that, according to the New York Post's Mike Pearl, journalists reported stories which needed further sourcing or checking for accuracy.

3 Entertainment Weekly Menendez article (Oct., 1993), OJ Simpson Players story from June 1994.

4 Alan Dershowitz on Picket Fences, Amy Fisher, Tonya Harding, Menendez docudramadaries.

5 Television operates by means of juxtaposition of images and sounds, and because of the manner in which the public "reads" television, there is a creation of an "associative grammar [which] has dulled the viewing public's analytic abilities." Robert Entner, "Encoding the Image of the American Judiciary Institution: A Semantic Analysis of Broadcast Trials to Ascertain Its Definition of the Court System" (Ph.D. diss., NYU, 1993), quoted in Thaler, p.8. The printed press, likewise, uses consecutive language to create factual relationships where none exists, via the use of paraphrasing, language which makes information seem more exact and firsthand than it actually is, and the lack of information provided about sources. The American Lawyer, "A New Code for Journalists," Steven Brill, p.4.

6 United States v. Burr, 25 Fed. Cas. 49 No. 14692g (1807).

7 New Jersey v. Hauptmann, 180 A. 809 (Ct. Err. & App.) cert. denied, 296 U.S. 649 (1935).

8 Estes v. Texas, 381 U.S. 532 (1965). Many of the dangers of the television media were assumed, not proven, by Estes. Justice Clark noted, "Television in its present state and by its very nature, reaches into a variety of areas in which it may cause prejudice to an accused. Still one cannot put his finger on its specific mischief and prove with particularity wherein he was prejudiced."

9 Sheppard v. Maxwell, 384 U.S. 333 (1966). 10 Id. at 339-340. 11 Id. at 344. 12 Id. at 344. 13 Id. at 346 14 Murphy v. Florida, 421 US 794, 795 (1975). 15 360 US 310 (1959). 16 Id. at 803-4. 17 Nebraska Press Assoc. v. Stuart, 427 US 539, 543-544 (1976). 18

19 See Gannett v. DePasquale, 422 US 386 (1979), Richmond Newspapers, Inc. v. Virginia, 448 US 555 (1980), Globe Newspaper v. Superior Court, 467 US 596 (1982), Press-Enterprise Co. v. Superior Court, 464 US 501 (1984), Press-Enterprise Co. v. Superior Court, 478 US 1 (1986).

20 Gannett. 21 Richmond.

22 Criminal libel is not frequently available, although laws against libel are on the books in many states. T. Barton Carter, Marc A. Franklin and Jay B. Wright, The First Amendment and the Fourth Estate, p.167 (The Foundation Press, 1991)

23 Carter, et al. 78. 24 New York Times v. Sullivan, 376 US 254 (1964) 25 Associated Press v. Walker, 388 US 130 (1967). 26 Gertz v. Robert Welch, Inc., 418 US 323 (1974).

27 Time, Inc. v. Firestone, 424 US 448 (1967). A woman was involved in a divorce, and was compelled to appear in court to seek relief. While she did hold a few press conferences during the trial, she, according to the court, did not thrust herself into an unrelated dispute, nor did she use the press conferences to influence the outcome of the trial. The court noted that there was a compelling need for judicial redress of libelous utterances, and merely because a person was drawn into "a public forum against their will...to defend themselves against actions brought by the State of by others...[they[ should [not] substantially forfeit that degree of protection which the law of defamation would otherwise afford them simply by virtue of their being drawn into a courtroom."

28 Id. 29 Brill at 7. 30 Brill at 6.

31 ACLU Amicus Curiae brief in the Sheppard case, quoted in Douglas S. Campbell, Free Press v. Fair Trial, p.132.

32 Francis T. Murphy, "A Case Against Cameras in the Courtroom," New York Law Journal, June 30, 1994 (p.2).

33 KFMB-TV Channel 8 v. Municipal Court, 221 Cal. App. 3d 1362, 1368-69, 271 Cal. Rptr. 109, 113 (1990).

34 Brill at 6-7.

35 John Lippman, "We, the (TV) Jury; Courtroom TV, a New 24-Cable Channel, goes for the Reality, but Some Fear That It Will Harm the Sanctity of the Judicial System, Los Angeles Times, June 30, 1994. When Court TV was televising the case of Kentucky v. Tracie English, a sixteen year old charged with the murder of her father, the prosecutor asked her to reenact how she killed him. She complied, crying, and the camera focused on her actions on the floor of the courtroom. She also testified to years of traumatic sexual abuse perpetrated on her by her father. The producer cut to the Court TV anchor desk, where Fred Graham and defense lawyer Barry Shreck were smiling and discussing the case. Both men denigrated her testimony, and Shreck concluded that "crying and looking pathetic doesn't make out the position that she's asking the jury to accept." See Also Thaler, The Watchful Eye, (noting Warren Berger, a reporter for New York magazine wrote that, "if English was sexually molested at some point before the crime, wasn't she entitled to some sensitivity?").

36 On June 14, 1994, the Los Angeles Times reported that Erik Menendez was going to turn against his brother Lyle in their second trial. This comment was based on a paraphrase of a statement in a prosecution brief which was quoting a sealed defense brief. The reporter, Alan Abrahamson, did not interview any members of the defense team to check this story, although his editors published it on the front page. It was later indicated by the defense team that this statement was untrue. However, over 50 newspaper articles and 100 television stories picked up this story, and it became part of the body of information about the case. See Statement by Terry Moran on America Online, July, 1994; LEXIS search on December 8, 1994.

37 See Lorena Bobbitt trial

38 George Gerbner, "That's Entertainment?" The Connecticut Law Tribune, August 1, 1994 (p.29).

39 Francis T. Murphy, A Case Against Cameras in the Courtroom. 40 Brill at 6-8.

41 Court TV Motion (noting when the report about the victim's DNA was broadcast, this Court stated from the bench that the information upon which the report was based was "incorrect" and "prejudicial" and that the broadcast had been "irresponsible").

42 Sheppard v. Maxwell at 358 43 Sheppard v. Maxwel at 358-363.

44 Jeffrey Abrahamson, We The Jury, p.50 (1994) (noting in the Menendez case, a juror who said that press coverage "made him think of the defendants as 'wealthy, spoiled kids;'" in the Oliver North case, 156 of the 235 prospective jurors who acknowledged seeing or reading about North's testimony to Congress were eliminated without being questioned as to the level of exposure or their reaction).

45 Murphy at 805-807 (dissent of Brennan). 46 Brill at 4. 47 See Gannett. 48 Press-Enterprise II at 13-14. 49 Gannett at 443-445. 50 Chicago Council of Lawyers v. Bauer, 522 F.2d 242 7th Cir., 1975). 51 Chase v. Robson, 435 F.2d 1059 (7th Cir., 1970).

52 See KPNX v. Maricopa Superior Court, 139 Ariz. 246 (1984) (holding press has no constitutional guarantee that its sources will be unfettered).

53 Thaler at xx (noting in the McMartin child molestation case, Pamela Ferrero Bozanich placed a large board between herself and the television camera, to avoid being videotaped, but her attempt was thwarted when the cameraman moved the tripod). Also see Thaler at 188 (quoting Joel Steinberg as saying "I saw very little coverage that fairly expressed my sentiments, my natural manner").

54 Thaler at 18.

55 Steinberg was accused of the 1988 murder of his adopted daughter Lisa. He was convicted of manslaughter in 1989.

56 Thaler at 195. (noting one witness, Dr. Mary Elizabeth Lell, said that television affected public and courtroom perception of the subtleties of the case). In the Menendez case, the fact that virtually all the testimony was televised may have likewise prevented critics and commentators from seeing the subtleties and the larger picture, specifically, the corroboration and refutation of certain witness testimony, and the defense allegation that the defendants killed because they were in fear for their lives, not because their parents were abusive at some time in the past. Richard G. Singer, "The unreasonable fear of creating unreasonable rules," New Jersey Lawyer, August 29, 1994.

57 Thaler at 196. Perry Reich, a lawyer for Steinberg, "abandoned controversial legal motions during the sentencing for fear that they 'would have ripped the country apart.'"

58 Thaler at 196-7. 59 Thaler at 35. 60 Thaler at 65-66.

61 Court TV Motion, quoting Oliver v. Postel, 282 N.E.2d 306, 311 (N.Y. 1972)

62 The OJ Simpson case is an exception, as it is an example of that rare case which would be highly publicized if there was no camera in the courtroom. However, it is possible that perceptions by the public of the case, and the original jury pools from which members of the jury were selected, were affected by the fact that the preliminary hearings were televised in their entirety. Some people who might otherwise have been suitable jurors were probably excluded because they saw a few newscasts about the hearings over the course of the summer. Thaler, Media Critic at 58.

63 Thaler at 70. 64 Thaler at 71.

65 "Court experts see good, bad in TV camera's eye; Broadcasting 'affects every aspect of the trial' Lawyers look askance at TV eye in courtroom; Simpson trial trains spotlight on '13th juror.'" Hollywood Reporter, August 19, 1994.

66 Chandler (holding a ban on television coverage of trials does not violate the broadcast media's First Amendment right of free speech; camera coverage (as distinct from reporting) is not protected by the First Amendment).

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