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Media and the Courts: Part III

Part III of this C-SPAN Broadcast dealt with the manner in which members of the media cover high-profile trials.MR. KRAMER: So the jury is now seated, you have 12 individuals selected at random from a cross-section of the community, a couple of alternates as well, and they are excused for a moment so that a point of law, a point of evidence can be discussed. Mr. Kendall doesn't like the introduction of the confession, and there are some other salacious details I believe you also want to keep out, and you are raising it with the judge.

The judge doesn't want to hear you guys in chambers, no, it is in open court, open court, where you have Jan Greenburg sitting, Pete Williams, Paul Wagner, and they are taking notes. Now, should they be taking notes about things the jury shouldn't hear, oh, but they are going to hear it tonight when they get home on the evening news.

MR. KENDALL: Well, I think you can't, if something is happening in open court, I think that that is in open court, and that means that it is the public's business. I think hopefully you would have moved to have this happen in chambers, or at the bench, um, and if that is denied, then you might have a point on appeal. I don't think you can prevent people from covering what goes on in court.

MR. KRAMER: Granted. But what about preliminary hearings, where the government is trying to show nothing more than probable cause?  It is kind of like a mini trial, if we all think back to the O.J. experience and other cases in which it is pretty one-sided. Only the prosecution is going to call witnesses.  So, the person looks kind of guilty.  Should those be behind closed doors?  Are we saying maybe we ought to close the doors to the press where perhaps the public could get the wrong impression?

MR. WILLIAMS: That is why David has waived his client's right to a preliminary hearing.

MR. KRAMER: Good move.

MR. KENDALL: But maybe not. Sometimes preliminary hearings are very useful as discovery devices for the defense, so I'm not sure. This might be one that I want to have a free shot at the witnesses.

MR. KRAMER: You want to cross examine prosecution witnesses, find out what they know, and so you are engaged in a balancing act, aren't you? Isn't it a question of possible adverse trial publicity versus discovery?

MR. KENDALL: Yeah. But I think probably the discovery value would outweigh the possible prejudice. Again, you could do voir dire. There are a variety of things you could do at trial. And you are going to hear that evidence later. I'd rather hear it sooner so that I could better refute it.

MS. TOENSING: But as the government, I'm not going to let you. I'm just going to go ahead and indict, so you won't get a preliminary hearing.

MR. KENDALL: This is California.

MS. TOENSING: Oh, we're in California. I thought it was a federal case.

MR. KRAMER: We need something for television. This is the O.J. case. We've left Capfield.

MR. WAGNER: In D.C. Superior Court, I like to go to preliminary hearings, because frequently you hear the defense attorney really asking the investigator a lot of questions on the stand. Frequently I get a lot more from out of what the defense attorney is asking than I do from the prosecutor.

MR. KRAMER: Well, then you have to select a jury, and when you are doing voir dire, and asking questions, and normally the question comes up: "Can you disregard what you've read about, or seen in news reports?"  Can a juror ever honestly answer, "no"?  Isn't that a problem, in terms of getting a fair trial? Are there any ways that we can avoid that? Do the reporting, have a free press, but a fair trial -- all at the same time?

PROFESSOR STERN: It depends how many jurors you want to question. I remember during the Watergate trial, approximately 3 percent of the jurors never heard of H.R. Halderman, or John Erlichman or John Mitchell. They read the gardening session.

MR. KRAMER: Not too many know about Bill Rehnquist either.

MS. GREENBURG: Are those the jurors that you want? Do you want jurors who have never read a newspaper? Do you, if it is a high profile case, and you are doing voir dire?

MR. KENDALL: We call that "the dial tone juror."  [laughter]

MR. KRAMER: Is that the kind of juror you want?

MR. KENDALL: I don't know. It may be. It depends on the case.  [laughter]

MR. KRAMER: Well, I once heard a law professor say, "evidence is anything that the jury hears."  You can object, sustain, instruct them not to listen, to ignore it, to wipe it from their brains. Can they do that?  Isn't that a little bit foolish?

MR. WILLIAMS: Ask Robert Blake.

MR. KRAMER: A miscarriage of justice?

MR. WILLIAMS: No -- I'm just saying it is possible to have a high profile case, and still get an acquittal.


MR. KRAMER: What about O.J.?

MR. WILLIAMS: QED.  [Latin: quod erat demonstrandum, i.e., that proves the point]

MS. GREENBURG: People, readers are skeptical. How many times do you hear, "You can't believe everything that you read"? I mean, people look at the newspapers today, I think people are informed, they've got a lot of different sources of information, and people are skeptical about the information that they do see. And, when it is presented, hopefully the journalists who have written the stories, or broadcast them, have outlined the case, and interviewed people on both sides, and presented a fair report.

MS. TOENSING: There is hardly a court that is going to overturn a conviction, that is so rare, on pretrial publicity.

PROFESSOR STERN: Or dismiss before trial. In fact, I only know of one case like that in the entire annals of American justice.

MS. TOENSING: They voir dire it out.  You know, "you can be fair can't ya?  Sure."

MR. KRAMER: And it is very hard to strike for cause as well in court, as we all know.

Jan, when you are ready to run a story, do you think, "why am I covering this case? What good am I serving? What is the function of my report?"  Is that something that goes through your mind?

Chicago Tribune Legal Affairs Correspondent Jan Greenburg considers the impact of landmark Supreme Court cases.MS. GREENBURG: Well, you have to keep in mind that I cover the Supreme Court, so by the time I get a case, um, I think it is pretty obvious what significance the legal issues will have, and the broad impact they will have on our nation and on the legal system.

MR. KRAMER: But back in Chicago at a much lower level of the court, a question comes up, doesn't it: "Why am I doing this? What purpose am I serving?"

MS. GREENBURG: Of course it does, and even today, when I'm trying to decide what cases to cover in the Supreme Court, you are not going to cover every Supreme Court case. Half of them are pretty -- pretty dull, or more. But you -- The impact that it has, the sweep it has, the reach it has, and at the trial level, obviously it is going to be the impact of the case, the crime, how many people it affects, who are the -- who are the victims? Who are the defendants? All those things come into play to decide, whether something is or is not newsworthy, and that goes to the tension that you sometimes see between the press and the bar.

MR. KRAMER: One thing I've heard tonight from some of you is that a function of the press is that the bright light of media scrutiny can help ferret out crime, can aid an investigation.  To get all the facts out there may lead to some other information that viewers may call in.  Something like "America's Most Wanted," where you actually can track fugitives this way. Is that the function?

PROFESSOR STERN: What you said is absolutely true, but I don't think it is the bedrock problem here. I think what would concern most of us, which is we don't want the police, or the federal agents picking up somebody like Dr. Capfield, and not accounting to the public through the press what their -- as to what they're doing. The problem here is when you suggested that when the press should -- when the agency said that he is a "person of interest," or whatnot, that that somehow offended the system. I want the police who are holding Dr. Capfield for this length of time to explain to some degree why they are doing so. Silence doesn't do it for me. Under our system, police don't take people off the street and hold them incommunicado for hours, and give no explanation as to what they are doing.

MR. KENDALL: Unless they send them to Guantanamo.

PROFESSOR STERN: With some exceptions, that is the principle, I think, that bothers me most. Yes, it is very -- It can be very useful for the authorities to try to stir up a little -- get information from people, and hope that that will happen.  But at bottom here, the real problem is, under our system, I don't think we accept the notion that the police can grab this guy from his apartment, and question him incommunicado for 10 hours, and give no accounting for what they've done.

MR. KRAMER: So the government should be accountable. What about the press? What about that anonymous source quoted by Pete Williams who saw Dr. Capfield, or claims to have seen Dr. Capfield, mail some anthrax letters. Why don't we serve a subpoena on Pete Williams and ask him to come and testify?

MR. WILLIAMS: Don't assume I won't be subpoenaed, but now that is -- you've just entered a new fact in here. And if I had a person simply say, "I saw him mail some letters," I would say, "Ah, I'll bet you're right." I'll bet that at some point in Dr. Capfield's life, he has actually mailed some letters. I would not find that very interesting. And if he says, "I saw him mail the anthrax letters," then I would say: "You are talking to the wrong guy. You need to call the FBI."  Now, I would certainly not lose interest in this person, but --

MS. TOENSING: He would be your "person of interest."  [laughter]

MR. WILLIAMS: Yes. I would probably be -- I would probably get an interview with him, I would put it in the bank and evaluate it, but I certainly wouldn't rush onto the air with it. It is a spectacular, sensational allegation, and, you know, how does he know? How does he know that the letters had anthrax in them? It begs a lot of questions about maybe he has -- Maybe he is in cahoots, as they say at the University of Chicago, and I kind of want to know that.  But I would also tell the feds about it.

MS. TOENSING: Because you'd be subpoenaed, if you came out with a story about it.

MR. KRAMER: What about certain conversations, and there are multiple sources. They don't want their names out there, but they're willing to give you some information that, why don't we stipulate, is pretty interesting, and would certainly capture the interests of the authorities enough to serve you with a subpoena.  Now they want your information. What are you going to do about it?

MR. WILLIAMS: Let me make sure I understand your hypo here. You are saying that I've gotten information from sources who are not law enforcement sources?

MR. KRAMER: Correct.

MR. WILLIAMS: These are people who think they can aid in the investigation?

MR. KRAMER: People who think they can aid in the investigation. And they are a little bit skittish, maybe they have some things to hide. They don't really want to go to the FBI, but they'll go to Pete Williams, they'll go to Paul Wagner. And Pete Williams and Paul Wagner find this information important enough to put in a news report. You've checked it out. You believe it is reliable. You call them reliable sources, but you don't name names.

MR. WILLIAMS: Well, look, we get phone calls all the time from people who think they know something about something. And we often check it out. I'm trying to think of -- I can't think that I've ever had the experience where someone drops -- some anonymous person drops a bombshell in my lap. Um, you know, my guess is --

MR. KRAMER: You haven't had the Deep Throat experience.

MR. WILLIAMS: Exactly, I haven't, and I want to, and my phone number is 202 -- I'll arrange with C-SPAN to have it put at the bottom of the screen.  [laughter]

But, you know, I -- My guess is, I'm just thinking here on the spot, but as I say, you would put it in the bank, and evaluate it. I assure you NBC's lawyers would be heavily involved in it before we broadcast it. And I also guess that at some point, I might pick up the phone and talk to my federal sources and say, because they might say, "Oh, Charlie called you, too, huh? Well, we checked the guy, and he gets Radio Free Europe in his teeth, and I'd be very careful with him."  My guess is we might do that as well, so I might -- you know, it wouldn't be the first time they heard about it. Ah, but now what you are saying is -- I'm not sure why they would subpoena me, by the way? How do I put this on television? Interviewing him in silhouette? They don't know who he is?

MR. KRAMER: Well, in a lapse of judgment, you just ran with the story. You might regret it now, particularly since you've got a subpoena, but you know some individuals who might be able to provide some important information to the authorities, and they want to know who you know. Have you ever seen a member of the press say: "Oh, thanks for the subpoena, I'm going to come and testify"?

MR. WILLIAMS: The point is this is not David Kendall getting some judge to -- for me to say who my source was in the Federal Government, who my police source was, right? This is somebody outside? Because I -- Because I think I would have a real problem if David Kendall wants to know -- wants -- wants me to tell him who my -- my police sources were, my government sources were.

MR. KRAMER: Why is it different for you?

MR. WILLIAMS: Well, because the problem I'm having here is the thing that is going through the back of my mind is, is, you know, I'm a citizen, too, and I would like -- I would like to get whoever the person is who spread this biological toxin into the slammer as much as anyone else. I don't want to impede the investigation. You know, there might be a way for me to let the authorities know who this person is. I would be a little surprised if we really thought he was credible enough to put on the air, but we wouldn't want to tell the Federal Government that it could aid in the investigation. You know, here is this important witness, but we don't want to tell the feds to help with their investigation. I don't know, I suppose it is possible the network might come to that view, but that would surprise me a little bit.

The reason it is different with the government sources -- I presume the government already knows what the government is telling me.

MR. KRAMER: The reporter has never had information that is beneficial to the government, beneficial to the investigation, but waves the First Amendment flag to say, "no way"?

MR. WILLIAMS: Well, it is a balancing point, I mean, you know, you may find that your protection of that source is more important in that case, and that the police can get up off their chairs and go out and find this stuff on their own. I'm doing my job, they can do theirs.

MR. KRAMER: If the light of media cameras is so beneficial to investigations, and indeed I think John Walsh, and America's Most Wanted have certainly established that, here is a question for you: Why is it that we're so willing to report on the defendant's details, their identities, even when they are not yet defendants, when they are just "persons of interest"?  We hear about them on the news. But when it comes to the accuser, sometimes the victim, certainly in a case of a rape allegation, the press lays off of that. Why is that? That is a bit of self-censorship. I don't know that the press needs to lay off.

MR. WILLIAMS: In some cases, it is a matter of state law in some places.

MR. KRAMER: Where it isn't, the press seems to have exercised responsibility, and protected the privacy of the accuser. Why should the accuser be treated differently than the accused, if in fact that kind of reporting might lead to evidence in favor of the defense?

MR. WILLIAMS: Well, it might. I can't give you a uniform answer 100 percent. I'm just saying that -- that there are times when you want to protect a source. Why? Because in the long-term, the judgment is, it is better for society if the press can go out and find these things on its own, without fearing that every time you talk to a -- an unnamed source, you're going to end up before a judge.

The society has made a decision that that is actually good to have people going out and asking people questions.

MR. KRAMER: Let me ask our panelists, starting with you, Paul, are you happy with the current state of reporting on trials and investigations.  The names "Kobe," "Martha," "O.J." -- they all ring a bell. Are we really educating the public? Are we serving the public good in the current state of affairs?

MR. WAGNER: Are you talking in general about the big cases going on right now, or the way the media handles general cases?

MR. KRAMER: Does the media handle general cases? Don't they only handle big, sensational cases?

MR. WAGNER: I go down to court almost every day on some murder charge, and I'm going into the courtroom to see the arraignment. I'll tell you this, local television does not cover trials anymore, it just doesn't happen. What we do is we go down for the first day, we listen to the opening arguments, we hire an artist for the day. We use the artist pictures, and then we go away. And we come back at the very end, when the jury comes back with a verdict. That is --

MR. KRAMER: You don't have cameras in the courts in D.C.

MR. WAGNER: There are no cameras in the courts in D.C. You can occasionally get one in Virginia, if you are lucky. I mean we wanted one for the Route 29 stalker case, Darrell Rice, the defendant. I went down there strictly because the bosses wanted to go because there was going to be a camera there, but then the prosecution objected to the camera being in there, and they removed it. Well, what happened? My boss said, "Come home."  Okay?  So no camera, no story.

Um, and that is basically the way it goes in local television news these days.

MR. KRAMER: Victoria, do you like what you see on TV? I am excluding programs you are actually on.

MR. WILLIAMS: The other 20 percent.

MS. TOENSING: I have a hard time on a lot of the coverage. I'm not talking about any of the reporters on this panel. I think cable has really, uh, prostituted the legal -- the explanation of the legal process.

MR. KRAMER: I think C-SPAN is going to bleep that part out.  [laughter]

MS. TOENSING: Prostituted the legal process? I say that -- Joe and I, we like to comment about other people's trials, not only our own, but we won't do any of this Michael Jackson, Kobe Bryant, these are sort of -- it is prurient interest. It is like comic book stuff. There are some very important cases going on. The whole time that the Scott Peterson case was going on, the Lynne Stewart trial was going on in New York. And I went around and I begged all kinds of journalists, Pete, did I go to you?  Were you one of them?

MR. WILLIAMS: I covered that story.

MS. TOENSING: It was very rarely covered. You never saw it in the Washington Post, you didn't -- maybe some days every two weeks you'd see something in the New York Times, and I was embarrassed for the journalism profession and the lack of coverage of what I thought was a very important case. Meanwhile, Kobe Bryant and Scott Peterson are on every day, every, you know, every front page.

MR. KRAMER: Carl Stern.

PROFESSOR STERN: Well, there is no question we need more coverage, better coverage. If the engine by which we get to know what is going on in the courts, and how our court system works, there is a Kobe Bryant case, or a Michael Jackson case, um, then obviously there are elements to regret about that, but as a trade-off, I am willing to accept that, because I believe that it does in fact bring to the public attention information about how the court system works. I think the court system works pretty well. I think the judges and the parties to cases do hard work, for the most part, professionally. Um, I think it -- it, to some extent, you can argue this Vickie, but I think it does enhance the reputation of the profession overall. If there were a choice between cutting down on coverage, and having more coverage, my vote is: More coverage.

MR. KRAMER: Did we learn the right lessons, though, from the O.J. case, about how the court system really works?

PROFESSOR STERN: We learned about how a judge failed to control his courtroom.

MR. KRAMER: Granted.  Pete?

MR. WILLIAMS: Ah, yeah. There are exceptions. And of course the obvious answer is to turn something else on, watch a Lawrence Welk rerun, watch NBC Nightly News, watch something else. On the other hand, look at the coverage of, even though there were no cameras in the courtroom, look at the coverage here of Mohammed and Malvo here in the Washington, D.C. area sniper case.

From every step of the way, literally, every step of the way, every single act of the shooting, the discovery of the two sitting in the car, the pretrials, um, all the way through every day of the trial, to the day of the verdict, um, and I think that was a real service to the community. People were genuinely interested in what happened there, how that case progressed. I don't think it was sensationalized. Ah, the -- The crime, heavens knows, was spectacular enough, and I think the community knew what its court system did, saw things, maybe they agreed with the prosecutorial decisions. Maybe they disagreed. There were -- There was excellent -- As Carl said, there was excellent lawyering on both sides, and I think that sort of thing is very much a value to the community. People were hungry for that. Wanted to know, wanted to know how their justice system was going to handle this thing that had this whole community under siege.

MR. KRAMER: Jan Greenburg, excluding PBS, what do you think of the coverage?

MS. GREENBURG: I think you have to look at the kind of trials, the kind of legal issues that are being covered, and the kind of outlets, whether it is cable, or network, newspaper, news weeklys, and if you think about -- if you leave aside the high profile, the cable coverage, I think the legal coverage generally is great. I think that the Supreme Court reporters, Pete, and my other colleagues who cover the court, do a terrific job explaining extraordinarily complex cases, and how they are going to affect the lives of millions of Americans. And at the local level, I think newspapers do a tremendous job explaining critical legal issues, trials that may not get covered like the Kobe Bryant case, or even investigations, or murder investigations. Our paper did a first rate job reporting from the very beginning, got a phone call from sources which shows the value of having good reporters and good sources on the incredibly tragic story of a federal judge whose husband and mother were murdered in their home. That kind of reporting goes on in newspapers across the country all the time in high profile cases for those communities, and I think we can't lose sight of that when we talk about some of the other cases, um, that the people can criticize the coverage of. The 24-hour coverage of Kobe or O.J., because there is obviously tremendous first rate reporting going on all the time on legal issues.

MR. KRAMER: David Kendall, your hypothetical client doesn't like what he sees on the news. What do you think?

MR. KENDALL: Well, um, I think a lot of people don't like a lot of what they see on the news. Sometimes, though, the news is reflecting reality. I don't think there is a lot that, um, a criminal defendant can do about the news. Um, I think that, you know, you got to try to win the case, and then reap the benefits of doing that. But in terms of court coverage, I think the one thing which is regrettable is that we don't have more television coverage of appellate courts. And the Supreme Court of the United States would be at the top of my wish list. Those proceedings are typically an hour in length. I think the public would benefit greatly by seeing appellate arguments, beginning with the Supreme Court, and I think, you know, you get the full thing, you get people with a greater understanding of some of the complexities of the law, and I think there would be some people just interested for prurient interest or otherwise, so I would really hope the courts at some point would allow coverage of appellate proceedings.

MR. KRAMER: Albeit one Supreme Court justice, what is the fellow's name, Jan --

MS. GREENBURG: David Souter.

MR. KRAMER: David Souter, what did he say about that idea?

MS. GREENBURG: You all know about that story. He said that -- he was testifying in a Senate hearing, and he said that the day cameras go into the U.S. Supreme Court was the day that they roll over his dead body. So I think that as long as Justice Souter is around, I think that we will not be seeing, at least for awhile, cameras in the courtroom. But the Court has opened up the proceedings to the public in recent years. I know you must have all heard the audio recordings of some of the more high profile cases, and that seemed to work very well, and so who knows. I mean if we can get more audio recordings of some of the high profile cases, maybe some day even Justice Souter might change his mind.

MR. KRAMER: The question is going to be, who is going to be pushing those cameras anyway?

Thank you so much for joining us.  It has been very enlightening, and we know we will get even more enlightenment on the court system from all of you.  If you would like a transcript to hold what these folks have said against them in a court of law, courtesy of LAD Court Reporting, you'll find one posted on

Thank you very much for joining us.  Good night.

The legal information on legal news reporting, public interest, trying cases in the press, first amendment, Michael Jackson trial coverage, gavel to gavel, Court TV, no comment, client confidentiality, White House Counsel David Kendall, NBC News Justice Correspondent Carl Stern, Pete Williams, Chicago Tribune Supreme Court correspondent Jan Crawford Greenburg, WTTG-TV Paul Wagner, Victoria Toensing, legal analyst Irwin Kramer of WBFF-TV, Columbia Law School Alumni Association of Washington, D.C., Columbia Graduate School of Journalism, network news coverage, continuing legal education law review and law seminars, and trial testimony is designed for informational purposes only and is not intended to constitute legal advice. The slogans, High-Speed Access to Legal Action, Legal Advice, Legal Counsel, Legal Protection, State & Federal Courts, Dispute & Conflict Resolution, Probate Protection, Legal News, Legal Training & Seminars, and the substantial equivalent thereof are service marks of Kramer & Connolly.  Video stills reproduced with permission from C-SPAN.