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Massachusetts electronic access in courts rule is in the “forefront” of state courts, SJC Public Information Officer Joan Kenney said to me this past February. The state has a history of progressive thinking when it comes to technology use in courtrooms, Neil Ungerleider has said. The state was one of the first to adopt a rule allowing use of cameras – the original Rule 1:19 made it on the books in the 1980s. While most other state courts do allow camera usage, many do not permit use of electronic devices for reporting.
“It’s easy for reporters who work in this state to forget that the access that they have is really unique and that while some states have cameras, this may be one of the few of only states that allow the use of the electronic devices,” Ungerleider said.
Meanwhile, lawyer and blogger Robert Ambrogi, who researched equivalent or similar technological access rules of other state judiciaries while on the Rule 1:19 Subcommittee, found that most states do not extend to the lengths the new Massachusetts rule does. Massachusetts is one of the few states that allow two video cameras in a courtroom at a time, and one of the few that specifically grants that permission to citizen journalists in the language of the court rule.
Massachusetts is ahead of the federal courts in terms of electronic access. Federal courts do not allow the use of cameras except in specific federal district courts that are part of a pilot program similar to OpenCourt’s project in Quincy District Court. Cameras have never been allowed in the U.S. Supreme Court.
“The federal court system is woefully behind the times in terms of allowing cameras in the courtrooms,” Ambrogi said. “We’re still guided by a U.S. Supreme Court that has said not over their dead bodies will they ever let cameras in the Supreme Court. So I think Massachusetts is ahead on this.”
Other state judiciaries’ rules on cameras in courtrooms vary widely. For example, Oklahoma, which previously banned cameras in its courtrooms in its Code of Judicial Conduct, superseded the relevant rule in April 2011. That state now has no formal rules on the books at all regarding camera usage in courtrooms.
On the opposite end of the spectrum is Wisconsin, which permits three television and three still camera operators to be in courts with approval from the judge. Mississippi is also highly permissive when it comes to camera use in state courts; individual use of one television camera, one video recorder, one audio recording system and one still camera is permitted in the same courtroom given at least two days notice to the presiding judge.
Only a few states explicitly permit use of electronic devices, and even then, intended use of the device, whether for note taking or reporting, makes a difference in the permissibility of its use. Reporters in Nevada, for example, can freely use electronic devices for note taking, but need to get judge approval before using those same devices to live blog or broadcast court proceedings. In other states, reporters’ use of electronic devices is limited to cameras and audio recorders used for note taking.
Thirty-five states explicitly permit use of cameras in courtrooms, while 14 other states partially allow camera use depending upon the circumstances. In the majority of states that explicitly permit camera usage, only one videographer and one photographer can be in the courtroom at any time. (For more specifics, see the Radio Television Digital News Association’s State-by-State Guide).
The District of Columbia is the lone region of the United States that outright bans camera usage in the courtrooms in its jurisdiction. Thirty-five states allow some form of audio or video webcast from the court as well, though those 35 states are not all the same 35 that explicitly permit use of cameras; some states that only allow camera use in specific circumstances have also allowed webcasts under special circumstances.
While Joan Kenney, the SJC’s public information officer, has said that Rule 1:19 is still a “work in progress,” Massachusetts is leaps and bounds ahead of other states and sets a strong example of how a state judiciary might handle electronic access to the courtroom. Considering the successes of the OpenCourt project in particular while it lasted, regular live streaming and blogging, citizen journalism reporting and camera usage in courtrooms can become the norm of courtrooms in Massachusetts.
“It [OpenCourt] was a pilot project scheduled to last for a particular period of time, and intended to explore different issues that came up in the context of introducing full-time video recording into courtrooms,” said Jeff Hermes, director of the Digital Media Law Project. “In that regard, I think it was a tremendous success,”
While Massachusetts might lag behind some states in terms of access to the courts, the new updates to Rule 1:19 have ultimately been a victory for Massachusetts press freedom.
“I think the SJC, that court, started to come to the realization that the rules on technology in the courts were outmoded if not even nonexistent for the most part,” said Ambrogi of the Rule 1:19 updates. “I think this was seen as an opportunity to modernize the rules to apply to the kind of technology that reporters are using today. I think it’s also an attempt to recognize that even the definition of a reporter is changing and to acknowledge the idea that … bloggers and citizen journalists can also be members of the news media as well.”
After the Massachusetts Supreme Judicial Court approached the judiciary-media committee a few years ago requesting recommendations for updates to Rule 1:19, the Rule 1:19 subcommittee focused in on two fundamental points, said Neil Ungerleider, who co-chaired the subcommittee with Justice John Curran, now retired from Leominster District Court.
“One is that the nature of who is a journalist has changed, and secondly, the change in technology has allowed the use of electronic equipment in a way that was never before possible, and how if at all were we going to accommodate that,” Ungerleider said in a March 12 interview. “The second part was actually a little easier to deal with than the first part, the question of electronic access … The larger issue became deciding who is a journalist, and how was some order going to be brought to that process so that the people who claimed to be journalists actually were, as opposed to people just showing up off the street saying they were a journalist.”
Ungerleider, the general judiciary-media committee co-chair and the manager for WCVB-TV Digital, said it was important to extend access to citizen journalists. He sees professional and citizen journalists as the same.
“There really shouldn’t be a difference,” he said. “They [professional journalists] may reach more people, but why is a reporter for the Boston Globe more important than someone writing a weekly community blog or column or runs a community website in Winchester? Why should that person be less important? It’s kind of contrary to the First Amendment, if you will. Freedom of the press applies to everybody.”
Massachusetts has historically been progressive when it comes to cameras in the courts, having the original Rule 1:19 on the books since the 1980s, Ungerleider said. The subcommittee therefore tried to make the language in the rule as inclusive as possible, to define “even the smallest journalist,” he said.
Ultimately, the SJC approved a rule defining the “news media” as “organizations that regularly gather, prepare, photograph, record, write, edit, report or publish news or information about matters of public interest for dissemination to the public in any medium, whether print or electronic, and to individuals who regularly perform a similar function.”
Taking that view, the Rule 1:19 subcommittee then debated how to accommodate journalists of all kinds, Ungerleider said. Some subcommittee members favored a credentialing process, especially expressing fears that gang members could intimidate witnesses, he said. The subcommittee eventually chose a registration approach instead, requiring news organizations and citizen journalists to fill out a form and submit it to the Public Information Office.
“There is that safeguard, if you will, that the registration process was designed to put in place so that a gang member can’t bring an iPhone into the courtroom,” he said. “A reporter can because they’ve showed the registration when they go in if they’re asked for it.”
Since the updates went into effect in September 2012, Ungerleider has said he’s seen a positive reception from WCVB-TV readers and viewers who can get live updates from the courtroom. Since reporters can use electronic devices such as laptops, cell phones and tablets in reporting from the courtroom, live blogging and Tweeting a trial as it is in progress can put news consumers in the middle of the judicial proceedings as they happen.
“The ability of our reporters to do that is very much welcomed and appreciated on our website because [readers] come … in pretty significant numbers,” Ungerleider said. “The expectation on the part of people who are looking for news has changed. They expect it in real time. They expect it with immediacy. They expect it when it’s happening. And the rule change has allowed us to do that.”
The ability to live blog judicial proceedings is somewhat unique to Massachusetts, Ungerleider said. Blogging, citizen journalism of proceedings and other new reporting ventures possible thanks to technology have transformed Massachusetts reporters’ expectations of covering the courts.
Additionally, the updates to Rule 1:19 coincidentally lined up with the emergence of Twitter and live blogging in reporting, coming at “just the right time,” he said
“It’s easy for reporters who work in this state to forget that the access that they have is really unique and that while some states have cameras, this may be one of the few of only states that allow the use of the electronic devices,” Ungerleider said. “That’s something that’s not happening anywhere else in the country. So this is a very unique set of circumstances that exist in this state.”
This is somewhat old news, but OpenCourt, a pilot cameras in the courtroom project based out of Quincy District Court, has shut down its operations in the courthouse because the funding from the 2010 Knight News Challenge grant has run out.
I previously covered OpenCourt’s beginnings and some of its legal challenges, but at the time of that post, the project’s executive director, John Davidow, told me that the Quincy part of the project was merely on hiatus, and that he hoped it would expand into other courtrooms. He mentioned he and other OpenCourt staffers were working on other projects under the OpenCourt umbrella, tracking certain kinds of cases, for instance. Davidow told Robert Ambrogi, a lawyer who writes the LawSites blog, that, in conjunction with the Cyberlaw Clinic at Harvard University’s Berkman Center for Internet and Society, he will write a report about the OpenCourt Quincy experiment that will later be published in the National Law Review.
Through the course of researching OpenCourt, I managed to dig up a lot about Commonwealth v. Barnes, a 2011 case that revolved around OpenCourt’s ability to post recorded footage to its online archives. Though the project is pulling out of Quincy District Court, OpenCourt’s legacy will last in the Barnes case, which legitimizes Rule 1:19 and the ability of an independent journalistic organization to publish however it wants footage of judicial proceedings in open court it had permission to record.
Specifically in the Barnes case, the District Attorney’s office and a group of public defenders filed petitions with the SJC requesting redaction of the name of a minor kidnapping victim in one case and the full video recordings of a defendant’s arraignment and later hearing on a motion in a second case. Counsel for OpenCourt’s opponents argued that OpenCourt operated only with Quincy District Court’s permission, and that its operation was so tied to the courthouse that videotapes constituted court documents, not documents belonging to a separate journalistic entity, and therefore, requesting redaction could not constitute prior restraint.
The SJC ruled 5-0 for OpenCourt (two justices on the judiciary-media committee recused themselves). The court declared OpenCourt an independent journalistic organization that deserved all the First Amendment protections normal news organizations enjoy. The SJC explicitly declared that the any court banning OpenCourt from publishing proceedings conducted in open court constituted prior restraint. Furthermore, wrote Justice Brotsford for the court, “Once a proceeding is recorded, the ability of the judge or an appellate court to control what media organizations do with the recording is highly constrained. Thus, even if an appellate court should conclude that there was an abuse of discretion in permitting the proceeding to be recorded, there can be no restraint on publication of the recording unless the court also determines that such a restraint is necessary to protect a compelling governmental interest and is the least restrictive reasonable method to do so.”
The court allowed OpenCourt to continue its operations given that the SJC’s judiciary-media committee would develop guidelines for the project that OpenCourt would abide by in the future. Later on, OpenCourt decided to wait two business days before posting video recordings of proceedings to have time to redact names of minors and sexual assault victims and to allow anyone to request a video not be published. Even after the footage has been posted, OpenCourt would take it down if someone flagged the video and explained the issue.
The project’s legacy as a pilot cameras in the court project that pushed the boundaries of the newly updated Rule 1:19 and survived two separate legal challenges that made it to the state’s highest court will survive as an example of Massachusetts’s openness to technology use in the courtroom. To Davidow, the greatest impact of OpenCourt was its ability to test the limits of Rule 1:19 while the changes to the rule were implemented.
“The new Rule 1:19 … was rewritten almost on a parallel track while Open Court was going. It allowed for a non-mainstream videographer in the courtroom. It talks about a number of the issues that came up. It also talked about what would be required of someone who did come in and cover the courts,” Davidow said to me in February. “We pushed that it would be a very low bar to get into the courts, almost like the registration of a new piece of software. So we offered a real-world example of what could be when 1:19 was rewritten … and then further clarif[ied] what rights the media had in terms of prior restraint.”
Jeff Hermes, the director of the Digital Media Law Project, a part of Harvard’s Berkman Center (as is the Cyberlaw Clinic Davidow is producing his report about OpenCourt with), agrees with Davidow’s assessment. In an interview earlier this week, he said that OpenCourt accomplished what it set out to do in the fixed period of time it ran.
“I think it was a tremendous success,” Hermes said. “It very clearly brought to the front tensions between the different parties in the court in terms of the creation of a video recording which would be in the hands of the press or in the hands of others that would not be subject to court orders barring publication of information.”
It was a balmy August day in 2012, and members of OpenCourt awaited the start of a Massachusetts Supreme Judicial Court hearing that would determine the organization’s ability to expand live streamed video coverage of judicial proceedings in Quincy District Court. But more than just OpenCourt’s ability to expand was at stake; if the SJC ruled to allow OpenCourt to expand its live streaming of judicial proceedings, it could be a major win for press freedom in Massachusetts.
The Norfolk District Attorney (DA) and the Committee for Public Counsel Services (CPCS) had petitioned the SJC to temporarily halt OpenCourt’s expansion into a second room at Quincy District Court pending formation and SJC approval of broadcasting guidelines. The DA argued that OpenCourt’s interim broadcasting guidelines did not offer enough protection to minors and sexual assault and domestic violence victims, while the CPCS feared violations of their clients’ constitutional rights.
So when Justice Margot Botsford issued a memorandum and judgment five days after the Aug. 9 hearing that denied the DA’s and CPCS’s petitions, OpenCourt Executive Director John Davidow felt gratified.
“The idea that prior restraint, that the state could have editorial control over something that had not yet been published, was deeply disturbing, as a member of the media,” Davidow said in a Feb. 11, 2013 interview. “We [at OpenCourt] were pleased, but mostly pleased because we felt like this was a real case of finding the proper balance between the First and Sixth Amendment.”
Though Davidow would’ve preferred to mediate issues out of court, he said the legal challenge actually benefitted OpenCourt.
“Had the district attorney’s office and other folks not objected and we had to prove our case before the SJC and make it clear that what’s public in court is public and the public should have access to it if it is recorded, we never would’ve had that opportunity” to prove the importance of public access, Davidow said. “In many ways it was helpful to get the clarity that came with these suits filed by the district attorney … it made us sharpen our understanding of the issues around it.”
OpenCourt, a pilot project in Quincy District Court for use of cameras in the courtroom under SJC Rule 1:19 run through Boston NPR channel WBUR, started merely as an idea at a media judiciary committee meeting Davidow participated in sometime in fall 2009. As interest in the idea grew, Davidow extensively researched use of cameras in courtrooms around the country, taking time to speak with many judiciary and media law organizations and judicial officers. Davidow submitted a proposal for the project, then named “Order in the Court 2.0,” to the Knight Foundation’s News Challenge as one of 2,364 hopeful applicants. In June 2010, the Knight Foundation announced OpenCourt as one of its News Challenge winners that year. Following approval from the SJC, OpenCourt went live in Quincy District Court on May 2, 2011.
“I think that there were all sorts of concerns initially, that we were going to give up people’s identities, lawyers and prosecutors would act differently because the cameras were on, judges may not accept pleas that they normally would, and … people not willing to come forward because there were cameras in the courtroom,” Davidow said. “All those things never really truly materialized.”
The main issue OpenCourt encountered in its early days was what to do with archival footage. Almost immediately, people challenged OpenCourt on the archives issue, Davidow said, so OpenCourt temporarily shut down access to its archives until it came up with a policy addressing the concerns. It is now OpenCourt’s practice to not post archival footage until two business days have passed so that anyone can express any issues with the posting of the footage. Even after the footage has been posted, OpenCourt will take it down if someone flags the video and explains the issue. Access to archival footage is free to anyone with Internet access who registers with the site.
Currently the project is on a brief hiatus as OpenCourt Producer Val Wang stepped down earlier this month. OpenCourt will resume live streaming in March. For now project members are focusing on another project that follows specific kinds of cases, Davidow said. He also hopes to expand the project, and it wouldn’t surprise him if one day the official court record is video, not audio, recordings.
“There’s a lot of interest from the courts themselves on how to deal with this,” he said. “The courts want to be more transparent. We got our strongest support from the judicial branch. I think there’s this sense of inevitability that Open Court is just somewhat ahead of the curve of where the courts are inevitably going to go.”
Davidow said he is proud of OpenCourt’s vision and what it has done to make the courts more accessible to the general public.
“The founders in this country wanted justice to be done in public,” he said. “You think of the movie ‘To Kill a Mockingbird,’ where the entire town is piled into that courthouse to watch that trial. That’s what the founders imagined. For a long time, the media was there, and they were that bridge to what was going on in the courts as people got more and more removed from it.
“And then, given the realities of where the media is and other technologies, the public became more and more distanced from this major branch of our government … So [OpenCourt] was one small step in bringing the courts forward, leveraging the technology that exists and is continuing to evolve.”
Massachusetts is one of the 10 states without a shield law on the books, joining a small minority that interpret the so-called “reporter’s privilege” under case law. While the U.S. Supreme Court has denied the existence of a constitutionally protected reporter’s privilege, states legislatures are free to enact laws that give more rights to journalists than the baseline fundamental rights granted in the United States Constitution. Currently 40 states and the District of Columbia have statutory shield laws in effect.
The Massachusetts reporter’s privilege is confusing and open to interpretation, but ultimately Massachusetts courts have acknowledged a limited reporter’s privilege. Massachusetts common law protects reporter’s privilege when the reporter’s interest in protecting his source’s identity outweighs the government’s or private lawsuit party’s interest in procuring evidence. Courts are more inclined to protect information gathered from confidential sources than sources who have spoken on the record, however.
A First Circuit appellate court decision from 1998 acknowledged the existence of a limited reporter’s privilege to protect his sources. In Cusumano v. Microsoft, the First Circuit court determined that Microsoft Corporation could not compel two academic researchers to produce research materials for a book concerning an antitrust lawsuit Microsoft was involved in. The court established a balancing test for a limited First Amendment privilege of protecting confidential information.
Quoting United States v. LaRouche Campaign, the court said when district courts must decide whether to enforce requests for discovery production of materials used “in the preparation of journalistic reports,” the courts should “be aware of the possibility that the unlimited or unthinking allowance of such requests will impinge upon First Amendment rights.” To determine how discovery requests should be limited, if at all, those courts “must balance the potential harm to the free flow of information that might result against the asserted need for the requested information.”
Importantly, the court also declined to limit the applicability of the protection to the traditional definition of journalists. The court noted that academic researchers and journalists share many trade similarities and therefore must both enjoy a First Amendment privilege to protection of confidential sources and information:
Courts afford journalists a measure of protection from discovery initiatives in order not to undermine their ability to gather and disseminate information. Journalists are the personification of a free press, and to withhold such protection would invite a “chilling effect on speech,” and thus destabilize the First Amendment. The same concerns suggest that courts ought to offer similar protection to academicians engaged in scholarly research. After all, scholars too are information gatherers and disseminators … Just as a journalist, stripped of sources, would write fewer, less incisive articles, an academician, stripped of sources, would be able to provide fewer, less cogent analyses. Such similarities of concern and function militate in favor of a similar level of protection for journalists and academic researchers.
There have been a few recent attempts to pass a shield law in Massachusetts. An attempt in 2007 failed in early 2008, as well as a more recent attempt by the Massachusetts Broadcasters Association in 2010. Last year, another possible shield law called the “Free Flow of Information Act” that offered protection to journalistic bloggers made the rounds in the news media before it too failed. Massachusetts still doesn’t have a shield law on the books.
While Congress has repeatedly failed to pass a federal shield law statute and the courts have ruled that the Constitution doesn’t protect a reporter’s privilege, 40 states have passed shield laws. Some may prefer legislation about reporter’s privilege at the state level. State level shield laws can account for cultural and geographic differences and conform more to the culture of the state.
The vast variety in state shield laws, however, can make things very difficult for reporters who plan to travel anywhere outside their home state to cover a story. Theoretically, a reporter would be responsible for knowing the specific laws in each state he or she covers news in. This could place an undue burden on the reporter and can hinder or discourage him from branching out and covering stories outside of his home state. Adding more to the confusion is the question of who legally qualifies as a journalist and can enjoy protection under state shield laws.
University of Oregon Professor Kyu Ho Youm wrote a brief editorial for the New York Times website following an Oregon judge’s December 2011 determination that a blogger did not qualify for shield law protection. Youm noted that a First Circuit court in a recent decision declined to dispense First Amendment protections on “professional credentials or status” alone.
“The federal court ruling reinforces the judicial reluctance to read bloggers and other journalistic outsiders (“outliers”?) into state shield law,” Youm wrote. “Judges are more likely to continue with their traditional journalist-oriented approach to source protection unless their state laws are ambiguous enough to allow them creative interpretations.”
Government, the courts in particular, is very defensive of free speech and press, uncommonly so compared to other democratic countries. The framers of the Constitution considered prior government intrusion, particularly prior restraints and licensing schemes, as the worst infringement of First Amendment rights (as discussed in Nebraska Press Association v. Stuart). However, the focus on prior restraint leaves the door wide open for punishment of speech and press after the speech is spoken or words are printed. Criminal punishments after the fact could almost be construed as counter to the freedom of the press as prior restraint.
In particular, journalists who use confidential sources to expose government corruption or wrongdoing could face sanctions if they refuse to disclose their sources in front of a grand jury. Though 49 states currently have shield laws or case law protecting the journalist’s privilege to protect his source, there is no shield law on the federal level.
The U.S. Supreme Court rejected the idea that journalists have more freedom than private citizens in the 1972 case of Branzburg v. Hayes. A Kentucky reporter conducted interviews with marijuana growers, witnessing their illicit activities firsthand. He wrote a story about it and kept his sources’ names confidential, refusing to give up their identities to a grand jury. A Kentucky appeals court found that the then Kentucky shield law would allow a reporter to protect an informant who told the reporter about alleged illegal activity, but would not protect the reporter if he witnessed the illegal activity himself.
The Supreme Court consolidated Branzburg’s appeal with two other cases, both having to do with reporters seeking a First Amendment reporter’s privilege to not disclose the identities of their sources. In a 5-4 ruling, the court said that a reporter’s privilege does not exist as a constitutionally guaranteed right. Quoting Zemel v Rusk, the court said that “[t]he right to speak and publish does not carry with it the unrestrained right to gather information,” and that the government’s interest in convicting criminals outweighs a reporter’s interest in protecting his sources. The court adamantly insisted that journalists do not enjoy greater rights than any average private citizen.
“We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy,” Justice White wrote for the court. “This we decline to do.”
Even though the case is from the 70s, the justices foresaw another major issue with shield laws: who exactly meets the definition of the press. Said the court, “Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.”
University of Georgia Professor William E. Lee observed in a recent Cardozo Arts & Entertainment Law Review article that the court has been consistent in its equal application of speech protections. The 2010 Citizens United decision, he wrote, made media and non-media corporations’ speech equal before the law. Like the court in Branzburg, he noted a federal shield law would encounter this same difficulty of defining who a journalist is:
In the first Citizens United oral argument, Justice Scalia facetiously asked if the term press meant people wearing fedoras with a ticket saying ‘Press’ in the hatband … the fedora definition of a journalist, however, is no more outdated and limiting than the definitions contained in many state shield laws. Defining who is entitled to coverage under a shield law is a most vexing problem.
To resolve this issue, Lee looked to a proposed shield law from a few years ago that did not ultimately pass, the Free Flow of Information Act, as a good guide to defining a journalist. Under that failed bill, a journalist would enjoy a reporter’s privilege if he regularly gathers information, conducts interviews, and disseminates reporting by print, broadcast or other forms of media, all with the intent “to disseminate the public news.”
The bill ultimately failed because President Obama announced that his administration would take a harder line against government leakers of information and because of Wikileaks’ release of thousands of classified documents in 2010 that many found concerning.
Lee seemed pessimistic about the chances of a federal shield law in the near future. Instead, he pointed out that the Department of Justice’s policy to subpoena reporters as a last resort serves as an informal but most secure way currently possible of protecting a reporter’s privilege.
Society of Professional Journalists President Christine Tatum advocated some years ago the passing of the Free Flow of Information Act on the Society’s website. She wrote:
Many of the biggest investigative stories of our age have been based in part on information shared with a reporter by someone who wanted to keep his or her identity a secret. Anonymous sources handed over the Pentagon Papers and unmasked the culprits behind Watergate and Enron. They have outed some of the nation’s worst corporate polluters. They have helped inform Americans’ debates about the Iraq War, the proliferation of nuclear weapons and global warming.
Yes, sources almost always have an agenda when they speak up, but sometimes they have information of vital interest to the general public and much to lose if they’re caught passing it along. If journalists can’t protect their sources’ identities, you will be much less informed about the world.
The ’50s and ’60s were a strange time for courtrooms. The emergence of broadcast journalism changed the way people got their news. In 1961, the U.S. Supreme Court marveled in Irvin v. Dowd at how the media, broadcast in particular, had changed the way the public approached a criminal trial: “In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.”
It was virtually impossible to find jurors who hadn’t heard of a particularly high-profile case. Trial judges retained power over trial participants but sometimes failed to exercise those powers, resulting in unfair trials for defendants.
In 1963, the U.S. Supreme Court determined in Rideau v. Louisiana that a Louisiana trial judge had improperly denied a defendant’s motion for a change of venue. Defendant Wilbert Rideau had kidnapped three people and killed one in his 1961 attempt to rob a bank. When he was brought in for arrest, police videotaped Rideau’s confession. Shortly after, local news stations broadcast the tape on three separate occasions, reaching about 106,000 viewers in the area. The court noted that, during his confession, Rideau did not enjoy the right to counsel, and the broadcasting of his confession led to a trial by media and “kangaroo court” proceedings that violated his right to a fair trial.
Two years later, the Supreme Court overturned a swindling charge in Estes v. Texas because of press coverage of a pretrial hearing with about a dozen cameras covering the whole courtroom. The court noted that the presence of cameras in the trial courtroom changed the atmosphere – the defendant, judge, jury and witnesses become more self-conscious and focus on the cameras staring at them rather than the facts and trial at hand.
The court called the right to a fair trial “the most fundamental of all freedoms” and ruled that proof of just the appearance of prejudice is enough to deem a trial unfair. This extended the prior rule of the defendant having to prove prejudice during trial for his appeal to be successful.
Again the court commented on the rapid technological changes the media had faced in the last few years.
“It is said that the ever-advancing techniques of public communication and the adjustment of the public to its presence may bring about a change in the effect of telecasting upon the fairness of criminal trials,” Justice Tom Clark wrote in the majority opinion. “But we are not dealing here with future developments in the field of electronics. Our judgment cannot be rested on the hypothesis of tomorrow but must take the facts as they are presented today. The judgment is therefore reversed.”
In the 1966 case of Sheppard v. Maxwell, the court again threw out a conviction because a defendant had suffered an extremely unfair trial due to media coverage and the faulty discretion of the trial judge. Dr. Sam Sheppard had been convicted in 1954 of murdering his pregnant wife. At trial, the judge was up for reelection in a few weeks and was going to run against the prosecutor of Sheppard’s case.
What followed was a mockery of the trial process: At a public inquest hearing shortly after his arrest, police officers searched Sheppard in front of a huge crowd in a gymnasium, held at that location to account for all the cameras and reporters. Later on, in the tiny courtroom where Sheppard was tried, the trial judge delegated most of the seats to members of the press, saving only the last row of seats for families of the defendant and victim. The trial judge allowed a long table to be put in front of the bar that normally separated formal court proceedings from the spectating public, and from there cameras bowed down on the defendant and the jury.
Accusations of poor character, numerous extramarital affairs and a child with one mistress lined the headlines of nearby newspapers, but the trial judge did not dismiss jurors who admitted to hearing the claims. During deliberations, jurors were allowed to make unmonitored phone calls despite being sequestered.
The Supreme Court ruled 8-1 for Sheppard and noted that the trial judge should have done more to control his courtroom, by sequestering jurors and witnesses and not allowing as many cameras, or indeed any, into the courtroom – or at least not in front of the bar, an unprecedented move.
A half-century later, Sheppard’s son Sam Reese Sheppard failed to convince a jury of his father’s innocence and lost a civil lawsuit based on wrongful imprisonment.
It is cases like these that remind media professionals the possible ramifications of overstepping bounds, sensationalizing cases and not behaving ethically.
Writes Marah Eakin of Ohio University, “[J]ournalists cannot allow themselves to be driven by their gut reaction and popular hunger for gossip – they must think through their decisions and report only what is ethical and just. Cases like the Sheppard trial allow journalists to learn from past mistakes to create a better reputation for the future.”