Media and the Justice System

1
Media and the Justice System
2
Media and the Justice System

• Problem No. 1
• The conflict between
• The 6th Amendment protections for criminal
  defendants and
• The 1st Amendment rights of free speech
  (reporting trials and other court proceedings)

3
The Sixth Amendment

• the right to a speedy and public trial, by an
  impartial jury of the State and district wherein
  the crime shall have been committed
• to be informed of the nature and cause of the
  accusation
• To be confronted with the witnesses against him
  to have compulsory process for obtaining
  witnesses in his favor
• To have the assistance of counsel for his defence

4
Prejudicial Crime Reporting

• Stories That Can Endanger Defendants Rights
• Confessions or stories about confessions the
  defendant is said to have made
• Stories about he defendants performance on a
  test, such as a polygraph
• Stories about the defendants past criminal
  record
• Stories that question the credibility of witnesses

5
Prejudicial Crime Reporting

• Stories That Can Endanger Defendants Rights
• Stories about the defendants character,
  associates or personality
• Stories that tend to inflame the public mood
  against the defendant
• Stories that are published or broadcast before a
  trial and suggest, imply or declare the defendant
  is guilty

6
Prejudicial Crime Reporting

• Impact on Jurors
• Research has not yet proven that publicity
  creates prejudice against a defendant
• Research has not yet proven that jurors cannot
  set aside their beliefs about a case and render a
  verdict based solely on facts presented in court

7
Prejudicial Crime Reporting

• An Impartial Juror
• Is not required to be free from all knowledge or
  impressions about a case
• But, must be free of deep impressions and beliefs
  that will not yield to the evidence that is
  presented during the trial

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Dr. Sheppards case

• .

9
Dr. Sheppards case

• On July 4, 1954, Marilyn Sheppard, the wife of a
  handsome thirty-year-old doctor Sam Sheppard, was
  brutally murdered in the bedroom of their home in
  Bay Village, Ohio, on the shore of Lake Erie.
• Sam Sheppard denied any involvement in the murder
  and described his own battle with the killer he
  described as bushy-haired.

10
Dr. Sheppards case

• From the beginning the case brought a great
  interest from the media. Generally, the media
  were hostile toward Sam Sheppard
• Sam Sheppard was found guilty of murder in the
  second degree by Cleveland, Ohio, jury in 1954
• Second-degree murder is ordinarily defined as an
  intentional killing that is not premeditated or
  planned, nor committed in a reasonable "heat of
  passion"

11
Dr. Sheppards case

• In 1963 F. Lee Bailey, Sheppards attorney, filed
  a petition for habeas corpus in federal court (a
  petition demanding an explanation of the basis
  upon which the prisoner has been detained. This
  type of writ is generally considered to be an
  "extraordinary remedy", meaning that the prisoner
  has exhausted all other avenues of relief or
  appeal, and no other adequate remedy remains).

12
Dr. Sheppards case

• F. Lee Bailey contended, among other things, that
  prejudicial publicity before and during the 1954
  trial violated Sheppards right to the due
  process of law
• An Interview with F Lee Bailey
• http//www.youtube.com/watch?vsrp0XnqWzy0
• FLB crossexamination

13
Dr. Sheppards case

• In July 1964 Federal District Judge overturned
  Sheppards conviction calling the 1954 trial a
  mockery of justice.
• However, the Sixth Circuit Court of Appeals on a
  2 to 1 vote, reinstated Sheppards conviction.
• Sheppard appealed to the Supreme Court

14
Dr. Sheppards Case

• The Supreme Court on the grounds that the
  publicity surrounding the trial prejudiced
  Sheppards right to a trial by an impartial jury.
  (Sheppard v. Maxwell 1966)
• The state of Ohio decided to retry Sheppard.
• He was acquitted on November 16, 1966.

15
Dr. Sheppards Case Epilogue

• Sheppard returned to his surgical practice, but
  with deteriorated skills and drinking problems
  botched two operations, killing both patients
• In 1969 made his debut as a professional wrestler
  using the name Killer Sheppard
• Sheppard died in 1970, at the age of 46.

16
Trial by media of Oscar Pistorius facts, guesses
and spin surround Reeva death
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A quasi-accepted version of events

• Mr Pistorius's girlfriend received a text message
  from a love rival last Wednesday evening.
• An argument ensued which ended with Mr Pistorius
  allegedly shooting his girlfriend
• Then pursued her into the bathroom where she
  attempted to hide in a toilet cubicle, only to be
  shot several more times in the hand and head.
• At some point, a cricket bat was used either in
  self-defense by Ms Steenkamp or on the attack by
  Mr Pistorius.

18
The truth?

• "I don't know where people got these stories,"
  complained police spokesperson Katlego Mogale.
  "We haven't issued a statement about the case
  or spoken to anyone.
• Ferial Haffajee, the editor of City Press
  defended her paper's coverage of the story "We
  are ethically and legally clear... There is
  nothing in our coverage that will harm the court
  process.
• (there is no jury system in South Africa).

19
PR to the rescuecrisis communications industry

• As part of the attempt to hold back the avalanche
  of negative coverage, the 26-year-old athlete has
  called up Stuart Higgins, the London-based public
  relations expert, who represented him during the
  London 2012 Olympics and Paralympics.

20
PR gurus the kings of a crisisBritain vs
America.

• Britain
• Stuart Higgins
• Max Clifford
• Phil Hall
• Matthew Freud
• Gary Farrow
• America
• Mark Fabiani and Chris Lehane, "Masters of
  Disaster".

21
Fabiani and Lehane

• American P.R. firm owned by Chris Lehane and Mark
  Fabiani.
• The two were dubbed the "Masters of Disaster" for
  their damage control P.R. work when they worked
  for the Clinton White House and campaigns

22
Masters of Disaster The Ten Commandments of
Damage Control

• .

23
Rideau v. State of Louisiana 1963

• Rideau convicted for murder and sentenced to
  death in 1961.
• The U.S. Supreme Court overturned Rideaus
  conviction on the basis that a secretly taped
  interrogation session was aired repeatedly on the
  local television station KPLC-TV's evening news,
  resulting in a biased jury pool and a "kangaroo
  court."

24
Traditional Judicial Remedies

• Voir Dire (to speak the truth) - each
  perspective juror is questioned prior to being
  impaneled in an effort to discover bias
• Challenges for cause when an attorney convinces
  the court that there is a good reason a potential
  jury member should not hear the case
• Preemptory challenges a limited number of
  challenges granted without need to prove cause
  for removal of a jury member

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Traditional Judicial Remedies

• Change of Venue when a judge orders a trial
  moved to a distant county to find a jury that has
  not been exposed to publicity about a case
• Change of Veniremen when the court imports a
  jury panel from a distant community

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Mad Dog Irvin case (1961)

• Where an attempt has been made to secure an
  impartial jury by a change in venue, but it
  appears that such a jury could not be obtained in
  the county to which the venue was changed, it is
  the duty of the court to grant a second change of
  venue.

• .

27
Traditional Judicial Remedies

• Continuance when a judge postpones a trial for
  weeks or months
• A continuance may be granted when a judge expects
  people in the community will forget at least some
  of the publicity surrounding the case

28
Traditional Judicial Remedies

• Admonition to the Jury when judges tell
  impaneled juries they must render their verdict
  solely on the basis of the evidence presented in
  the courtroom
• Sequestration of the Jury when judges seclude
  jury members from all publicity
• Jury members live in a hotel and eat all meals
  together
• All media accounts and personal communication are
  screened for information about the trial before
  jury members can see or hear it

29
Restrictive Orders gag orders

• Judges issue restrictive orders, also known as
  gag orders to stop those involved in a case
  from making public comments
• Can be issued to
• Plaintiff and defendant
• Attorneys
• Press

30
Restrictive Orders on Press

• Nebraska Press Association v. Stuart (1976)
• The judge in a sensational murder trial issued a
  restrictive order barring the printing or
  broadcasting of material about the victims
• U.S. Supreme Court ruled this order was an
  unconstitutional prior restraint on the press
  there must be a clear and present danger to the
  defendants rights to issue such an order

31
Restrictive Orders on Press

• Nebraska Press Association Test for Restrictive
  Orders Aimed at the Press
• There must be intense and pervasive publicity
  about the case
• No other alternative measure might mitigate the
  effects of the pretrial publicity
• The restrictive order will in fact effectively
  prevent prejudicial publicity form reaching
  potential jurors

32
From the majority opinion in Nebraska Press
Association v. Stuart (1976)

• We reaffirm that the guarantees of freedom of
  expression are not absolute prohibition under all
  circumstances, but the barriers to prior
  restraint remain high and the presumption against
  its use continues intact.

33
Restrictive Orders on Press Business Week
magazine case

• In 1994 Procter Gamble sued the Bankers Trust
  for Fraud
• Business Week magazine intended to publish
  litigation documents
• The judge in the case issued a gag order against
  the magazine
• HOWEVER U.S. Supreme Court ruled that
  confidential information about a trial that was
  legally obtained by the press may be published

34
Restrictive Orders on Participants

• Gag orders aimed at participants are not uncommon
  in high profile cases
• The law regarding restrictive orders barring
  participants from speaking or publishing about a
  case, however, is still developing

35
Access to Proceedings Richmond Newspapers v.
Virginia (1980)

• After a series of mistrials in a murder case in
  the state of Virginia, a trial judge closed the
  trial to the public and the media. Defense
  counsel brought the closure motion the
  prosecution did not object. Two reporters of
  Richmond Newspapers, Inc. challenged the judge's
  action.
• Question Did the closure of the trial to the
  press and public violate the First Amendment or
  the Sixth Amendment?

36
Access to Proceedings Richmond Newspapers v.
Virginia (1980)

• The Court held that the right to attend criminal
  trials was "implicit in the guarantees of the
  First Amendment."
• The First Amendment encompassed not only the
  right to speak but also the freedom to listen and
  to receive information and ideas.
• Also, the First Amendment guaranteed the right of
  assembly in public places such as courthouses.

37
Access to jury selection process Press
Enterprise v. Superior Court (1984)

• The petitioner moved that the voir dire at a
  trial for the rape and murder of a teenage girl
  be open to the public and the press.
• The State opposed, arguing that if the press were
  present, juror responses would lack the candor
  necessary to assure a fair trial.
• The trial judge agreed and permitted petitioner
  to attend the "general" but not the "individual"
  voir dire proceedings.

38
Access to jury selection process Press
Enterprise v. Superior Court (1984)

• After the jury was empaneled, petitioner moved
  for release of the complete transcript of the
  voir dire proceedings
• Both defense counsel and the prosecutor argued
  that release of the transcript would violate the
  jurors' right to privacy.
• The court denied the motion.

39
Access to jury selection process Press
Enterprise v. Superior Court (1984)

• Petitioner then sought in the California Court of
  Appeal a writ of mandate to compel the trial
  court to release the transcript and vacate the
  order closing the voir dire proceedings.
• The petition was denied, and the California
  Supreme Court denied petitioner's request for a
  hearing.

40
Access to jury selection process Press
Enterprise v. Superior Court (1984)

• The Supreme Court Held
• The guarantees of open public proceedings in
  criminal trials cover proceedings for the voir
  dire examination of potential jurors.

41
Access to preliminary hearing Press Enterprise
v. Superior Court (1984)

• Does a qualified First Amendment right of public
  access attach to a preliminary hearing, and under
  what conditions may the hearing be closed to the
  public while ensuring a fair balancing of First
  Amendment and Sixth Amendment guarantees?

42
Access to preliminary hearing Press Enterprise
v. Superior Court (1984)

• "Plainly the defendant has a right to a fair
  trial
• but,
• one of the important means of assuring a fair
  trial is that the process be open to neutral
  observers.
• Therefore, the preliminary hearing shall be
  closed only if specific findings are made
  demonstrating a substantial probability that fair
  trial will be put at risk by publicity and that
  no reasonable alternatives to closure exist.

43
Press-Enterprise Test

• The party seeking closure must advance an
  overriding interest that is likely to be harmed
  if the proceeding or document is open
• Whoever seeks the closure must demonstrate that
  there is a substantial probability that this
  interest will be harmed if the proceeding or
  document remains open

44
Press-Enterprise Test

• The trial court must consider reasonable
  alternatives to closure
• If the judge decides that closure is the only
  reasonable solution, the closure must be narrowly
  tailored so there is an absolute minimum of
  interference with the rights of the press and
  public to attend the hearing or see the document

45
Closed Proceedings and Sealed Documents

• Tips For Reporters When a Judicial Hearing is
  Closed
• Call the editor immediately to get a lawyer on
  the job
• Make a formal objection to the closure
• Ask the judge to delay the closure until the
  lawyer arrives

46
Access and Broadcast Journalists

• Access to audio- or videotaped evidence is still
  developing in the courts
• Courts have granted journalists increasing rights
  to make copies of evidence for later broadcast

47
Recording and Televising Judicial Proceedings

• Cameras and recording devices are now permitted
  in all but two states and the District of
  Columbia
• The U.S. Supreme Court ruled in Chandler v.
  Florida (1981) that the mere presence of cameras
  in the courtroom does not prejudice a defendants
  right to a fair trial

48
Recording and Televising Judicial Proceedings

• Federal courts refuse to permit cameras in the
  courtroom
• Cameras are also barred from executions and jury
  deliberations in most states

49
Bench-Bar-Press Guidelines

• Guidelines
• Tell law enforcement officers what kind of
  information about a criminal suspect and a crime
  can be released and published with little danger
  of harm to the trial process
• Inform journalists that publication of certain
  kinds of information about a case can be harmful
  to the trial process

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Protect Your Sources and Notes

• Promises Some sources wont talk unless you
  promise them confidentiality. To renege on a
  promise is to risk a lawsuit filed by the source.
• Watchdogs, Not Lapdogs The government should do
  its own investigation, not rely on your
  information. Journalists are watchdogs on the
  government, not lapdogs.

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The High Costs of Protection

• Journalists who refuse to comply with subpoenas
  requesting notes and/or the names of confidential
  sources risk contempt and jail.
• Vanessa Leggett Spent more than five months in
  jail in 2001 for refusing to turn over notes from
  an interview regarding a murder investigation.
• Josh Wolf (free-lance / blogger) spent 226 days
  (7.5 months) in jail in 2007

52
Branzburg v Hayes (1972). Four separate cases,
collective name

• Reporters are not constitutionally excepted from
  the duty to comply with grand jury subpoenas
• But the subpoena must be issued in good faith.
• Journalists have a qualified constitutional right
  to withhold unpublished information and sources
  identity
• 1. What is the importance and relevance of
  information?
• 2. Can the information be obtained through
  different means?
• 3. What is the type of controversy?
• 4. How the information was gathered?
  Confidential?

53
Shield Laws

• More than half the states have laws protecting
  journalists

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The California Shield Law

• Provides legal protections to journalists seeking
  to maintain the confidentiality of an unnamed
  source or unpublished information obtained during
  newsgathering
• WHO IT PROTECTS?
• a "publisher, editor, reporter, or other person
  connected with or employed by the media. The
  Shield Law also likely applies to stringers,
  freelancers, and perhaps authors.

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WHAT INFORMATION IS PROTECTED?

• The source of any information.
• Unpublished information
• Specific information obtained during
  newsgathering but not disclosed to the public
• Includes "all notes, outlines, photographs, tapes
  or other data of whatever sort"
• Includes newsgatherer's eyewitness observations
  in a public place
• Protects only information obtained during
  newsgathering

56
Failing to Keep A Promise Civil Liability

• Cohen v. Cowles Media The First Amendment does
  not shield journalists from lawsuits or civil
  liability when they breach promises of
  confidentiality to their sources.
• Enforcing the promises of confidentiality would
  not violate the newspapers constitutional
  rights.

57
Failing to Keep A Promise Civil Liability

• The legal theory on which the plaintiff in
  Cohen v. Cowles Media prevails after journalists
  breached promises of confidentiality to him.
• The theory allows courts to enforce promises,
  even though there is no legally binding contract,
  in order to avoid injustice.

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Legal obligation to keep promises Four Key
Elements

• A plaintiff must prove four basic elements in
  order to prevail in an action for promissory
  estoppel
• 1. The defendant made a clear and definite
  promise to the plaintiff
• 2. The defendant intended to induce the
  plaintiffs reliance on that promise
• 3. The plaintiff reasonably relied on the promise
  to his or her detriment and
• 4. The promise must be enforced in the interests
  of justice to the plaintiff.

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Newsroom Searches

• Seminal Case Supreme Court case
• Zurcher v. Stanford Daily
• Critical Federal Law
• Privacy Protection Act of 1980

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The Contempt Power

• 1. Contempt
• 2. First Amendment Limitations
• 3. Collateral Bar Rule