Reprinted with permission of the Illinois Bar Journal from volume 85, pp. 16-21 (January 1997).
The author, keynote speaker at the 1996 Allerton House Conference, argues that the press is not the culprit but the scapegoat in the fair trial-free press controversy. He challenges long-held assumptions of the bench and bar about publicity, concluding that the press coverage -- including televised trials -- actually plays a positive role.
If you are a judge or lawyer, then you understand how publicity produces prejudiced juries.
Which is the problem.
The link between publicity and harmful prejudice has become ingrained in several generations of legal professionals, but it defies the evidence and sober reflection.
First of all, for the historical record, prejudice was not always so disdained. Ironically, the jury in its earliest incarnation in twelfth-century England was composed of individuals already familiar with the case.
1 Indeed, until the fourteenth century, when openmindedness was first required of jurors, at least a few of the jurors initially had to be convinced of the guilt of the accused, or else the prosecution was thought to be disadvantaged.2In its first significant case on the issue of whether news accounts influenced jurors, thus denying the defendant his Sixth Amendment right to an impartial jury, the Supreme Court in 1851 acknowledged the jurors had read the articles but concluded no prejudice resulted.
3Numerous cases on the same issue followed over the next 100 years. Consistently, the Court ruled that publicity had not prejudiced the jurors.
4 The Court laid down the rule that the publicity must not only be capable of influencing jurors, but must have in fact influenced them, and offered the trial judge considerable discretion in implementing the rule.5 In 1887, the Court even upheld an Illinois statute that prohibited any challenge to a juror who had formed an opinion based on news accounts of the crime, as long as the juror swore that he could render an impartial verdict and the court was satisfied regarding the juror's truthfulness.6During the period, several "trials of the century" occurred in their respective decades.
7 The 1924 Leopold-Loeb trial in Chicago involved two wealthy, bored, certified genius teenagers. Nathan Leopold Jr. had graduated from the University of Chicago at 18 and Richard Loeb had graduated from the University of Michigan at 17. Their aim was to commit the perfect crime.But after killing 14-year-old Bobby Franks, they stuffed his body in a culvert near Wolf Lake and didn't notice when Leopold's prescription eyeglasses fell from his pocket. Two Chicago Daily News reporters matched the typewriting on the ransom note to papers Leopold had typed at the University of Chicago, for which they received the Pulitzer Prize, and the perfect crime had all the elements -- murder, money, mistake, infamous motive, major media market -- to garner press coverage galore. The youths had confessed by the time of trial, so it was up to Clarence Darrow to save them from the death penalty with his oratory, which he did,
8 which, of course, generated many more yards and hours of sensational media accounts.Then Bruno Hauptmann was tried in 1933 for the kidnapping and murder of the Lindbergh baby. Several hundred newspaper reporters and photographers descended upon a small New Jersey town to send out more than a million words a day to every corner of the world. The photographers took pictures during the trial, despite the judge’s order to the contrary. It was a "perfect riot of lurid publicity,"
9 and "perhaps the most spectacular and depressing example of improper publicity and professional misconduct ever presented to the people of the United States in a criminal trial."10In the wake of these cases, the American Bar Association created a Special Committee on Publicity in Criminal Trials. It produced sixteen recommendations. Most of those recommendations pertained to lawyers, but some pertained to defendants, witnesses and jurors. Basically, the participants in the case were to refrain from engaging in interviews, discussions, and the issuing of arguments or bulletins.
11Amazingly, nothing in the Committee Report discussed the responsibility of the court to protect defendants’ Sixth Amendment rights, which seems an odd omission today. But it was quite typical of the blase, let-the-chips-fall-where-they-may attitude of the courts right through the late fifties, what one author calls the "benign neglect" approach of the Supreme Court.
12The Supreme Court went so far as to condone that benign neglect in a 1952 decision involving a conviction for the murder of a six-year-old girl after the district attorney's public pronouncement regarding the guilt and sanity of the defendant and the sensational press coverage of the crime.
13The California Supreme Court had written that mass media overstimulation of public interest and gruesomeness was part of the traditional concept of the American way of the conduct of a trial, and the U.S. Supreme Court affirmed the conviction. But it may have been Justice Frankfurter's vehement dissents in this case and a case the year before
14 that sparked the free press-fair trial dialogue that has continued ever since.15The Supreme Court did an about-face in the early sixties with a series of reversals of criminal convictions due to prejudicial publicity. In the first case, Irvin v. Dowd,
16 the police issued press releases reporting that the defendant had confessed to six murders. The press interviewed people on the street as to whether they thought he was guilty. Eight of the twelve jurors were predisposed to think that he was.In Rideau v. Louisiana,
17 another case from the early 60s, a suspect in a robbery and murder was interviewed by the press, including broadcast media, the day after his arrest in a jail cell with the sheriff posing beside him. The prisoner confessed on national TV.Sheppard v. Maxwell
18 was the case that was the inspiration for "The Fugitive" television series with David Janssen, which was the inspiration for "The Fugitive" movie with Harrison Ford. In the actual case, in 1954, Dr. Sam Sheppard reenacted his grappling with an intruder whom he surmised killed his pregnant wife in her bed. In the audience were the coroner and newsmen invited by the coroner.The county attorney lambasted Sheppard publicly for not taking a lie detector test or a truth serum, and he was grilled for five and a half hours without the aid of counsel at an inquest held in the high school gymnasium to accommodate the crush of people.
He was questioned mostly, by the way, at the inquest about an extramarital affair, and you can imagine the press coverage of that topic. At the trial, the court catered to members of the press by seating them on the near side of the bar, in the company of the prosecution and defense.
The press coverage featured debates, editorials, an interview with the judge, banner headlines asserting "Justice Will Be Done To Sam Sheppard," and pictures obtained while photographers crowded around Sheppard during the courtroom breaks.
The Supreme Court overturned the conviction. He was retried and acquitted, at which point he slammed his fist on the defense table and said, "Ten years is a hell of a price to pay," but he couldn’t turn back the clock. He lost his license to practice medicine, became a professional wrestler, and died in obscurity.
19Sheppard signaled a clear change from the era of benign neglect to the era of affirmative action.
20 The Supreme Court charged that the trial courts should actively assume responsibility to ensure that the defendant’s Sixth Amendment rights are preserved, and it specified a number of steps trial judges should take.21Judge Blythin, who presided over Sheppard's trial, had reiterated again and again during the trial that he was powerless to control the impact of publicity. The Supreme Court said he was wrong.
The Reardon Report,
22 published by the ABA two years after Sheppard, also detailed the options open to trial court judges extending beyond controlling the decorum in the courtroom, including voir dire, hearings outside the presence of the jury, sequestration, and changes of venue. Notably, the Reardon Report observed that the "overwhelming preponderance" of prejudicial statements come from lawyers and law enforcement officers and urged judges to control them with the contempt power. But neither the Sheppard Court nor the Reardon Report presented direct control of the press as an option.In short, it is the responsibility of the court to ensure a fair trial, not of the media. The supposed conflict between fair trial and free press is false. The press has no obligation to preserve the defendant’s Sixth Amendment rights. The courts have a "substantial arsenal," as the Reardon Report put it, to do just that.
Let me put it another way. Should the press have covered those stories in Irvin, Rideau, and Sheppard the way it did? The answer is yes. It was yes then, and it is yes today.
If I am working for the TV station and a sheriff comes along and tells me, "Come on back into my jail, son. I have got a prisoner who wants to confess to robbery and murder," do you think I am going to say, "Excuse me, sir, but doesn’t that exceed the bounds of propriety?"
I am going. That’s a story. That’s a heck of a story. It’s an even better story if my competition doesn’t have it, and if I don’t go, my competition will have it and I won’t have a job.
Okay. So I broadcast this great story, and right away the lawyers and judges who have relied on Sheppard as precedent for thirty years now assume that where there is publicity, there must be prejudice. Publicity equals prejudice. Prejudice equals publicity. They go together.
Judges and lawyers must be bold. They must break the connection. The lesson of the past thirty years of affirmative action is more significant than the fate of Sheppard in the era of benign neglect. The Supreme Court has not had to overturn a conviction because of prejudicial publicity since Sheppard. Charging judges with the duty to protect Sixth Amendment rights has worked; these past thirty years have proven publicity does not equal prejudice.
23Former Attorney General John Mitchell insisted publicity prejudiced his case, a spin-off of the Watergate debacle -- until he and Maurice Stans were acquitted. Yet if ever there was a case to illustrate the link between publicity and prejudice, this was it.
The defendants had submitted a national poll to the court showing that 75 percent of those surveyed who had heard of the Watergate cover-up considered the defendants guilty. In the District of Columbia, where they were actually tried, 84 percent thought they were guilty and only two percent considered them innocent with the balance undecided.
24 But the outcome could not have been more starkly at odds with the polls.Polls may measure public opinion, although I have never been fully convinced even of that proposition.
25 They certainly do not tell me my opinion -- or the opinion of a given juror or of carefully screened jurors,26 especially after they have seen and listened to all the evidence.27 Judges and lawyers should keep firmly in mind what pollsters take for granted: the ability of those polled to change their mind when presented with even a single additional fact or a differently worded question.28The Mitchell-Stans verdict was a fluke, an aberration, you say. Then recall the 1972 acquittal of Angela Davis. Has there ever been a case more ripe for conviction? And it wasn't just the massive publicity. She was a black activist in front of an all-white jury, an avowed Communist on trial during the Nixon Administration, accused of kidnapping and murdering a judge, whose defining moment during her trial involved raising her fist in a defiant black power salute. Verdict: Not guilty.
More recently, the acquittals of Sgt. Stacey Koon and O.J. Simpson and the hung jury in the Menendez brothers’ first trial prove yet again that jurors can produce outcomes at odds with the publicity.
The first trial of Koon and the other L.A.P.D. Officers is most instructive. How often is the alleged crime on tape? But, even more to the point, how often is that tape broadcast repeatedly across the country? At one point George Holliday, the author of the tape, sent a letter to 900 television stations asking for copyright royalties, assuming, quite rightly, I think, that each station had played that tape.
29Imagine the mindset of Southern California television viewers, whose exposure to those eighty-one seconds and fifty-six baton blows was many, many times that of the rest of the country.
A poll showed that eighty-one percent of those in the L.A. area thought the officers were guilty.
30 That, of course, meant that nineteen percent of the people in the L.A. area thought otherwise, still leaving many thousands of potential jurors to fill 12 slots. But this is not the era of benign neglect.Exercising affirmative action, the judge moved the trial to Simi Valley and took a number of steps to ensure a fair trial. The result, acquittal. How can anyone claim that publicity automatically equals prejudice in an era of able judges and affirmative action?
But these are not your typical trials, and they do not involve typical publicity. Far, far more typical is the mundane trial coverage: "Champaign Man Sentenced In Rape Case." The coverage is overwhelmingly reactive, not proactive. It is overwhelmingly supportive of judges and the judicial system and the official record.
In my view, the press coverage is too mundane, too reactive, and too supportive. Bob Green’s columns on the Baby Richard case and the occasional, but only occasional newspaper column taking Judge Behr
31 or some appellate judge to task are all the more notable because they actually do criticize the courts.Lawyers and judges may be more sensitive to the few critical stories about lawyers or judges. They may stand out more in their minds, but inch per inch, story per story, the articles about people being arrested, tried, and sentenced -- in short, stories giving the impression that justice is being done and the system is working -- are so predominant that the occasional critical piece is disproportionately insignificant.
My point doesn’t regard the substance of those Bob Green columns. Whenever amateurs comment on professionals, whether it’s sports or courts, the commentary inevitably will be considered shallow and misguided by the professionals.
Bob Green made the attempt to actually analyze a case and to take a court to task, something I wish more journalists would do in addition to writing yet another story about "Kankakee Man Pleads Guilty To Cocaine Possession." I think there should be more publicity, not less, covering every stage of the legal process, no matter whether lawyers and judges would disdain such coverage as prejudicial.
Why doesn’t the press offer more critical, more insightful assessments more often? There are several reasons. First, it’s not that court reporters are unintelligent or wholly ignorant of the issues that they can bring to the public’s attention. Much like lawyers, most reporters are reasonably bright people who at least started in their trade with a notion of promoting the greater good, but who labor under crushing daily deadlines and workloads. It takes an extraordinary person under such circumstances to rise above merely being a stenographer, more or less simply writing what people say in court or relating the contents of a public record.
Secondly, reporters criticize judges and attorneys, and judges and attorneys tend not to appreciate it, and the backlash can have consequences for the reporter. Just about every reporter has had the experience of writing a critical story about what he or she thinks is an important issue, but the story might just have well been in Sanskrit for all the reaction it gets. It goes into a black hole somewhere.
The only solid outcome of the critical story is that the people criticized now hold a grudge. But the paper still has to come out the next week and the next and the next Now the reporter has no particular positive reinforcement for writing a hard-hitting story, people are going out of their way to give stories to the reporter's competitors, and the reporter's editor then gives the reporter a hard time for not having those stories. It is much easier and safer to write reactive stories about indicted alderman and crack addicts.
Finally, as Robert Drechsel has amply documented,
32 but which finding will not surprise judges and attorneys, law professionals by and large avoid the press. It is more than a little difficult to write stories with an intelligent perspective when the best-informed sources don't return phone calls. Drechsel even suggests that there may be less interaction than there was a century ago.33 He logically concludes, "Sources can't have it both ways: they cannot blithely complain about poor or one-sided coverage but decline to help reporters."34I wish there was more thoughtful and insightful and, yes, critical publicity regarding the legal system. But I can understand why ninety-nine percent of the publicity that does exist won’t so much as raise a judicial eyebrow.
This willingness, indeed, eagerness to equate publicity with prejudiced juries is representative of a more general willingness of the legal profession to point its collective finger at the media when the ill is fictional -- or lies with the legal profession.
35 Its treatment of electronic media like a dirty sock is illustrative.One can hardly talk to an attorney about the O.J. Simpson case without the conversation turning to the role of television and the attorney at some point sniffing that the electronic media are in the entertainment business. Why else would they pander to the public's curiosity with gavel-to-gavel coverage and analyze each development, strategy and piece of evidence with a relentless parade of experts, some of whom clearly had their own agenda?
Was it entertainment? Sure.
36 One need not have been a lawyer to appreciate, as Lord Wigmore observed, the lawyers' use of evidence "as one plays a trump card or draws to three aces, or holds back a good horse till the home-stretch."37 The aim of the lawyers was forthrightly and admittedly to obtain a prejudiced jury, in their favor, of course, and the public at some level understands and appreciates that. Trials have been high drama since the first days of the Republic, long before electronic media.But let me postulate that the electronic media coverage of the O.J. Simpson case was quite laudable and worthy of emulation. The things that attorneys seem to take issue with in the media coverage actually showed television at its informative best: the live and complete trial coverage and the interviews and commentary by experts.
One cannot credibly maintain that Johnnie Cochrane would have been any more meek or pliable in the absence of televised proceedings. If complete televised coverage revealed warts in the courtroom and the legal system, that is not television's fault. Ohio University researchers dissecting the network coverage of the Simpson case have shown, contrary to the impressions of some, that the coverage in fact concentrated more on the legal proceedings inside the courtroom than on outside events, with only seven percent of the coverage preoccupied with outside events.
38 By far, that coverage focused more on legal activities than the personality traits or appearance of the participants.39Experts always come with baggage; it's the baggage that makes them experts. But if the question is whether the public is better served by employing experts to explain the proceedings or offer differing opinions on strategy, even controversial opinions, or by letting the public figure out the nuances by itself, any attorney ought to be able to come to the same conclusion as the journalists in the O.J. Simpson case.
40Isn't it more than a little ironic that the experts to which some attorneys object were themselves attorneys? Again, the essence of the problem does not seem to be with the electronic media. Indeed, in one survey 98 percent of judges agreed the presence of Court TV's cameras had not impeded the fairness of the judicial process,
41 and their number now includes Judge Lance Ito, who presided over the Simpson trial and expressed strong support for courtroom cameras afterward.42 As one observer noted,43The Simpson case should not be allowed to overwhelm all of the prior experience. Some may be distressed by much of what the courtroom camera has shown. But if the camera has revealed flaws in the legal system, the correct response is to fix the problems--not bar the medium that identified them.
To sneer at the media as simply entertainment is a thinly-failed attempt to claim the moral high ground, a premise leading to the conclusion that the justice system would function better if only the annoying media would not interfere. But ultimately it is only stating the obvious, that the missions of the court system and the media are different.
We could be crass and say that both the media and the law are industries, that in each the commercial motivations too often triumph over the greater good, but I prefer to look at each in a less harsh light, suggesting that each illuminates the human condition with an intent for improvement. Neither is nobler than the other. When either is at its best -- which is not often -- it can be a thing of beauty fulfilling a fundamental and central mission in a self-governing society, and it is good that they remind each other of that. But their missions are not the same.
Law attempts to provide just resolution of important questions affecting life, liberty, and property. Journalism offers a view of the functioning of the legal institution with an eye, though it be asleep at times, toward ensuring proper conduct -- the watchdog role, if you will, enshrined in the First Amendment.
44The missions of the court system and the media are different, not incompatible, but different. Far from being incompatible, in fact, they are dependent on each other. Trials will only be fair so long as the press is free. Both have huge stakes in the status quo.
The judicial system benefits immensely from all of those mundane stories suggesting that justice is being meted out and the system is working. It is only an institution that is insecure about itself that attempts to bar its doors and shut off scrutiny.
In a democracy where the power rests in the people, the institutions of the people have an obligation, however bothersome, to open the doors and to encourage scrutiny. To limit attention, including bans on TV cameras, disserves the public and, ultimately, the institution.
To paraphrase Harry Kalven Jr., it is an arresting problem of how much we depend on the law’s conscious distrust of its own processes.
45 The courts may distrust the media, and that distrust may be understandable, even warranted in some instances, but a court’s implicit trust in its own processes is dangerous.The press is an integral part of the system. It plays a role critical to both the court and the public. So don’t castigate televised coverage of the O.J. trial as entertainment, because you may be saying more about the proceeding than the media.
Moreover, it overlooks that the press served its role in that case and, overall, did quite well, because the public learned a tremendous amount about courts through that coverage. If it was not all flattering to the bench and bar, don’t blame the messenger.
Finally -- and the O.J. Case is a perfect example of this -- factors other than media coverage play a much larger role in determining guilt or innocence: the wealth of the defendant, whether the trial is in L.A. County or Simi Valley, the competency of counsel, whether you have an ugly defendant or saintly victim.
46Yet, who wants to address these issues or personally lobby legislators to rescue the Legal Services Corporation or adequately fund the public defender’s office? What is more appealing, involves the least effort, and yields the greatest instant gratification? No contest. Bash the media.
The media are highly visible, often more than a little arrogant, and they commit their mistakes in front of thousands, if not millions. How can one resist popping a few of their balloons? The reality, though, is that the media and the publicity they engender are not the problem, and I have tried to suggest that publicity may be part of the solution. Mistaking publicity as the problem may be, as Abraham Lincoln once said, to confuse a horse-chestnut with a chestnut horse.
471. Roy L. Moore, Mass Communication Law and Ethics 386 (Lawrence Erlbaum Assocs., Inc., Hillsdale, N.J.: 1994).
2. Curtis D. MacDougall, Covering the Courts 72 (Prentice-Hall, Inc., N.Y.: 1946).
3. United States v. Reid, 12 How. (53 U.S. 361); see Free Press & Fair Trial 18 (Am. Soc'y of Newspaper Editors and Am. Newspaper Publishers Assoc. Found. pub: 1987).
4. See United States ex rel. Darcy v. Handy, 351 U.S. 454 (1956); Stroble v. California, 343 U.S. 181 (1952); Buchalter v. New York, 319 U.S. 427 (1943); Stroud v. United States, 251 U.S. 15 (1919); Holt v. United States, 218 U.S. 245 (1910); Thiede v. Utah, 159 U.S. 510 (1895); Mattox v. United States, 146 U.S. 140 (1892); Ex parte Spies, 123 U.S. 131 (1887); Hopt v. Utah, 120 U.S. 430 (1886); Reynolds v. United States, 98 U.S. 145 (1978). See generally Free Press & Fair Trial 18-31 (Am. Soc'y of Newspaper Editors and Am. Newspaper Publishers Assoc. Found. pub: 1987).
5. See, e.g., Holt v. United States, 218 U.S. 245, 248, 251 (1910).
6. Ex parte Spies, 123 U.S. 131, 167 (1887).
7. See Ralph Frammolino, Simpson Case Infamous but Interest May Not Endure; Sex, Race and Celebrity Fuel Fascination with the Murders. But They May Not Join Crimes of the Century Category, Los Angeles Times, at p. 1, col. 1 (Dec. 5, 1994).
8. See Maureen O'Donnell, Typewriter Tripped Up Leopold and Loeb, Chicago Sun-Times at 2 (April 6, 1996); Michael Kilian, Lucky Charm, Chicago Tribune at 1 (June 19, 1991).
9. Sheldon Portman, The Defense of Fair Trial from Sheppard to Nebraska Press Association: Benign Neglect to Affirmative Action and Beyond, 29 Stan. L. Rev. 383, 396 (1977), quoting Hallam, Some Object Lessons on Publicity in Criminal Trials, 24 Minn. L. Rev. 453, 454 (1940).
10. Sheldon Portman, The Defense of Fair Trial from Sheppard to Nebraska Press Association: Benign Neglect to Affirmative Action and Beyond, 29 Stan. L. Rev. 383, 396 (1977), quoting Hallman, Some Object Lessons on Publicity in Criminal Trials, 24 Minn. L. Rev. 453, 454 (1940), quoting a report of an American Bar Association-sponsored Joint Committee of the ABA and press organizations.
11. Sheldon Portman, The Defense of Fair Trial from Sheppard to Nebraska Press Association: Benign Neglect to Affirmative Action and Beyond, 29 Stan. L. Rev. 383, 397 & n.21 (1977).
12. Id. at 399.
13. Stroble v. California, 343 U.S. 181 (1952).
14. Shepherd v. Florida, 341 U.S. 50 (1951).
15. Free Press & Fair Trial 29 (Am. Soc'y of Newspaper Editors and Am. Newspaper Publishers Assoc. Found. pub: 1987).
16. 366 U.S. 717 (1961).
17. 373 U.S. 723 (1963).
18. 384 U.S. 333 (1966).
19. Maureen Hayes, Who Killed Sam's Mother?..., Kiplinger Program Report 48, 51 (publication of Kiplinger Public Affairs Reporting Program at The Ohio State University showcasing work of 1994-95 Fellows; reprints available at neff.67@osu.edu). Authorities recently focused on Richard Eberling, a window-washer for the Sheppards at the time who is now serving a life sentence for murder, as a possible suspect in Marilyn Sheppard's murder. His blood was found in the house, but he claimed he had cut himself there while working and he passed a lie detector test. Id. at 55-56. F. Lee Bailey on retrial put forward several theories as to alternative suspects, including the wife of the next-door neighbor, whose husband had apparently made numerous advances toward Marilyn. Id. However, a retired FBI psychological profiler recently examined the evidence and concluded, "It certainly doesn't look good for Dr. Sam." Id. at 57.
20. Sheldon Portman, The Defense of Fair Trial from Sheppard to Nebraska Press Association: Benign Neglect to Affirmative Action and Beyond, 29 Stan. L. Rev. 383, 405 (1977).
21. Sheppard, 384 U.S. at 358-63. The steps included controlling the "carnival atmosphere," the release of extrajudicial statements by trial participants, and access by the press to witnesses, as well as employing continuances, changes of venue, sequestration, and the "palliative" of a new trial.
22. ABA Standards Relating to Fair Trial and Free Press (Approved Draft 1968).
23. "[P]re-trial publicity -- even pervasive, adverse publicity -- does not
inevitably lead to an unfair trial." Nebraska Press Assn. v. Stuart, 427 U.S.
539, 554 (1976). "The basic consideration, however, is not the amount of
publicity in a particular case, but whether the defendant in that case received
a fair and impartial trial ...." People v. Speck, 41 Ill.2d 177, 183, 242N.E.2d
208, 212 (1968). Jury studies support the conclusion that "pretrial publicity
does not have either the profound or the pervasive impact it was once presumed
to have." American Bar Association, ABA Standards for Criminal Justice, Fair
Trial, Free Press 8 (3d ed. 1992).
Professor Pember believes that social science research on
prejudicial publicity is of dubious validity because of its artificial nature,
that in real life people do not remember many details of crime coverage, and
that sufficient alternatives to restraint of the press exist to protect the
Sixth Amendment rights of defendants See Don R. Pember, Does Pretrial Publicity
Really Hurt?, Colum. Journ. Rev. 16 (Sept.-Oct. 1984). Professor Simon, too,
noted the weaknesses in studies that do not use real jurors, but concluded they
were still useful. Rita J. Simon, Does the Court's Decision in Nebraska Press
Association Fit the Research Evidence on the Impact on Jurors of News Coverage?,
29 Stan. L. Rev. 515, 520 (1977); see Kent R. Middleton & Bill F. Chamberlin,
The Law of Public Communication 366 (3d ed.)(Longman, NY: 1994). Simon characterized
jury studies as showing: "Jurors take their responsibility seriously; they check
prejudices at the door of the jury room and recognize their special role as temporary
members of the judiciary ...." Simon, supra, at 520. But see Marla
Sandys & Steven M. Chermak, A Journey into the Unknown: Pretrial Publicity and
Capital Cases, 1 Comm. L. & Pol'y 533, 541 (1996)(majority of research supports
conclusion that pretrial publicity does have an impact on defendants' fair trial right).
24. Gene Graham, From the Press, in The Jury System in America: A Critical Overview 197, 202 (Rita James Simon, ed.)(Sage Publications, Beverly Hills: 1975).
25. See Michael Wheeler, Lies, Damn Lies, and Statistics--The Manipulation of Public Opinion in America (Dell Publishing Co., New York: 1976)(Interestingly, Wheeler was a law professor); George Anders, Polling Quirks Give HMOs Healthy Ratings, Wall St. J., at B1-B2, cols. 3-5 (Aug. 27, 1996)(in rating Health Maintenance Organizations, phone surveys could yield more positive results than mail surveys, subtleties in sampling technique or question-phrasing could alter answers, and even the season could make a difference--since more people are upset with paperwork snags when they switch providers, which tends to be at the beginning of a year); John H. Fund, The Perils of Polling, Wall St. J., at A10, cols. 3-6 (Aug. 13, 1996).
26. "[I]t seems that the accoutrements of our legal system, including, perhaps, a minimally competent voir dire, are in fact enough to counter most media-induced bias." John Kaplan, Of Babies and Bathwater, 29 Stan. L. Rev. 621, 623 (1977).
27. Speaking of political polling, one commentator observed that a "poll is a snapshot of the electorate at a given moment, not a predictor of the final result." John H. Fund, The Perils of Polling, Wall St. J., at p. A10, col.4 (Aug. 13, 1996). Fund quoted a political adviser who noted that campaigns change people's minds. This is implicitly the presumption behind juries, where people with no opinion or one that can be set aside are presented with the evidence and asked to form an opinion.
28. One recent poll concluded that 63 percent favored cutting federal spending for public television, while a contemporaneous poll commissioned by the Public Broadcasting System with differently worded questions concluded that 84 percent favored increased or static funding levels. See John H. Fund, The Perils of Polling, Wall St. J., at p. A10, col. 5 (Aug. 13, 1996).
29. See Howard Kurtz, Video Vigilante Seeks Reward; Man Who Taped L.A. Beating Asks Stations for Payment, Wash. Post at B1 (June 4, 1991).
30. Policemen ask judge to move brutality trial, The Wash. Times, at B5 (April 23, 1991). 31. See A.M Rosenthal, Contempt in Court, N.Y. Times, at A15, col. 1 (op-ed)(Jan. 30, 1996). Judge Harold Baer Jr. in the Southern District of New York was roundly criticized when he excluded evidence in a narcotics case. Officers had seen men put duffle bags into a double-parked car with out-of-state license plates, then scatter after the officers pulled over the driver. A search revealed drugs worth $4 million.
32. Robert E. Drechsel, News Making in the Trial Courts 21-22, 138-39 (Longman, Inc., New York: 1983).
33. Id. at 137. There apparently was also more coverage of court cases: "There is some evidence that nineteenth-century newspapers were giving at least some ink to nearly every local court case and were publishing daily court calendars." Id. Drechsel realized that greater coverage today would not be a panacea, especially if it were investigative or interpretative journalism. "To whatever degree reporters attempt to interpret and explain, or even merely to summarize what happens in court, to that degree the potential for conflict with the judiciary increases." Id.
34. Id. at 139.
35. This approach to the media is typical of politicians as well. They harp on the power of the media when real power most demonstrably lies with politicians. The diversion of attention from politicians is in the interest of the politicians--and, ironically, the media, whose alleged power enables them to sell advertising. Walter Karp, The Lie of TV's Political Power, Channels of Communication 37, 39-40 (May/June 1983).
36. One author ascribes to televised trials two primary functions: enhancing public understanding of the administration of justice and entertainment. Susan J. Drucker, The Televised Mediated Trial: Formal and Substantive Characteristics, 37 Communication Quarterly 305, 311 (1989). "A trial is inherently dramatic; it is filled with the tension produced when adversaries meet." Id.
37. Quoted in Lyle Denniston, The Reporter and the Law 110 (Hastings House, New York: 1980).
38. The authors of a recent content analysis of the transcripts of trial coverage from January through September 1995 found that their assumption that coverage focused inordinately on events outside the courtroom was unsupported. Of 71 reports on the three networks, 54 or 76 percent concentrated solely on events inside the courtroom, and 12 or 17 percent involved events both inside and outside the courtroom. Only seven percent of the reports dealt solely with events outside the courtroom. Patrick J. Sutherland, Rebecca Chamberlin, Laura Nystrom, Judy D. Johnston, Tara Nemer, Credibility and Perceptions of Network Television News Coverage of the O.J. Simpson Trial, at 7-8 (paper presented at annual convention of Association for Education in Journalism and Mass Communication, Aug. 12, 1996).
39. Patrick J. Sutherland, Rebecca Chamberlin, Laura Nystrom, Judy D. Johnston, Tara Nemer, Credibility and Perceptions of Network Television News Coverage of the O.J. Simpson Trial, at 8-9 (paper presented at annual convention of Association for Education in Journalism and Mass Communication, Aug. 12, 1996). Eighty-three percent of the coverage was on legal roles or activities, while 8.5 percent involved both legal analysis and the personality traits or appearances of participants and 8.5 percent involved only traits or appearances. Id.
40. For whatever consolation it may be to those critical of Gerry Spence, in fact, most network news coverage did not rely on outside experts or consultants to provide analysis. Only 21 percent of the analysis was performed by outside experts, while another 21 percent involved both outside experts and reporters, and most, 58 percent, was done solely by reporters. Patrick J. Sutherland, Rebecca Chamberlin, Laura Nystrom, Judy D. Johnston, Tara Nemer, Credibility and Perceptions of Network Television News Coverage of the O.J. Simpson Trial, at 8 (paper presented at annual convention of Association for Education in Journalism and Mass Communication, Aug. 12, 1996).
41. See S.L. Alexander, The impact of California v. Simpson on cameras in the courtroom, 79 Judicature 169, 172 (Jan.-Feb. 1996).
42. "If you take the cameras out of the courtroom, then you hide, I think, a certain measure of truth from the public," Ito said. S.L. Alexander, The impact of California v. Simpson on cameras in the courtroom, 79 Judicature 169, 172 (Jan.-Feb. 1996).
43. S.L. Alexander, The impact of California v. Simpson on cameras in the courtroom, 79 Judicature 169, 172 (Jan.-Feb. 1996) (quoting Court TV's Steven Brill); see David C. Weiner, The Courtroom Camera, 21 Litigation 257 (1995) (favoring camera access despite increased controversy following O.J. Simpson case).
44. See Vincent Blasi, The Checking Value in First Amendment Theory, 1977 Am. B. Found. Res. J. 521, 527-28, 533. Professor Gleason contends that the institutional role of the press as "watchdog" was assumed in the nineteenth century after the adoption of the First Amendment, Timothy W. Gleason, The Watchdog Concept: The Press and the Courts in Nineteenth Century America 13 (Iowa St. Univ. Press, Ames: 1990), although the notion of a "watchdog" public was accepted by early libertarians, id. at 16, 38, 102.
45. See Harry Kalven Jr., The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 Sup. Ct. Rev.191, 221 ("We are reminded ... of the arresting problem of how much freedom of speech in a legal system must depend on law's conscious distrust of its own processes to make needed discriminations.")
46. See John Kaplan, Of Babies and Bathwater, 29 Stan. L. Rev. 621, 624 (1977).
47. See David Herbert Donald, Lincoln 217 (New York, Simon and Schuster: 1995).