Vol. 11, No. 2,586W - The American Reporter - February 20, 2005

On Media

by Robert Gelfand
American Reporter Correspondent
San Pedro, Calif

LOS ANGELES -- A series of recent cases inspires this question regarding freedom of the press: What is it the freedom to do, exactly? These cases involve the clash of fundamental rights as judges, lawyers and the media fight for competing interests.

The competing interests include freedom of the press, the right to a fair trial, and the right to privacy. When described in these vague but historic terms, the issues seem as dry as a seventh grade history text. But they are not. They are the life and soul of our civilization, even if they do involve egotistical attorneys in conflict with each other, even as the voracious mass media use and are used by the litigants.

The Bill of Rights establishes the right to a fair trial, as established in the Sixth Amendment. It is actually one of the most clearly crafted and beautifully written.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and 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, and to have the assistance of counsel for his defense.

This has been the law of our land since its ratification in December, 1791. (By comparison, English law did not allow its felony defendants comparable rights until well into the nineteenth century.) The Fourth, Fifth and Eighth Amendments create additional rights against government abuse in criminal prosecutions, an indication of how important the founders considered the rights of the accused to be.

Somehow the press as an institution seems to forget about these rights when it is in pursuit of a juicy story. At that point, the all-holy First Amendment is raised as if it were supreme above all else.

The most recent questionable claim by the mass media comes in a case set in Orange County, California. It is a tabloid media publisher's dream come true. Three young men are accused of taking advantage of a young woman who was probably unconsciousness at the time, all the while videotaping their efforts.

At the time of the alleged offense, all of the participants, male and female alike, were minors. Now the young men are coming to trial for the rape of the young woman. The videotape is apparently the key evidence in the case, and guess what footage the media would like to get their lascivious fingers on?

We'll defer that question for the moment to introduce one other big case of the day, in order that we may consider the bewildering mixture of competing rights that are, as the legal scholars would say, in tension, but which would more realistically be described as in collision.

Laci Peterson disappeared from her Modesto, Calif. home on or around Christmas Eve, 2002. Following a search that became a national news obsession, her body was recovered from San Francisco Bay. Her husband Scott Peterson was eventually arrested, charged with her murder, and is now coming to trial. To the thinly disguised delight of the media, celebrity attorney Mark Geragos signed on as Scott Peterson's attorney.

What has transpired in the Peterson case ever since is a competition between the defense and some of the media to prejudice the jury pool. The defense approach has been to suggest various other possibilities such as the now famous argument that a satanic cult (not heretofore known to exist) may have been responsible for Laci Peterson's murder. On the other side is just about every media outlet, from newspapers to radio to web sites, all dedicated to discussing and propagating claims, counterclaims, rumors and gossip at all levels of credibility.

Here in Los Angeles, the John and Ken radio show (640 am) routinely dedicates program segments to attacking the latest defense claims and making fun of attorney Geragos. They discuss every shred of evidence and every argument in detail (they have a lot of time to fill) and it all goes towards the suggestion that Scott Peterson is guilty.

The problem with this, if you believe in having fair trials, is that much of the material discussed so publicly will not pass muster as admissible evidence. Even some that may be admissible will not be brought up by either side during the trial. The result of all this pretrial publicity is that people who may eventually come to be jurors are exposed to the case.

They hear snippets of alleged facts and theories, along with arguments logical and illogical, all of it long before the carefully crafted ritual called the trial begins.

Some people object to the limitations placed upon the prosecution by the rules of evidence. The cure for this, if it is indeed a problem, is to change the evidentiary rules. To have massive pretrial publicity affect the jurors is to have no rules at all.

The American quandary is that pretrial publicity has grown to include cable television news and discussion programs, talk radio and the tabloid press. The result is a deluge of information and no amount of questioning of potential jurors can really ameliorate its effects.

The English justice system has a simple approach to this problem. It bans this sort of coverage by the media from the moment of arrest through sentencing. Newspapers that would violate this are subject to fines and the humans who are judged responsible are subject to jailing. It is ironic that the country with strong constitutional guarantees of fair trial cannot quite manage to enforce those rights, while at least in the case of pretrial publicity, the English manage.

Our problem is that the Bill of Rights guarantees freedom of the press and also guarantees the right to a fair trial, however these rights may conflict. It has been left to legislatures and to the courts to try to sort out the conflicts. The result has been this hodgepodge in which judges control their courtrooms and put gag orders on lawyers, even as the press does damage outside the courtroom. The current tendency towards moving trials out of the region where the crime occurred, along with careful questioning of potential jurors seems to be the best we can do in terms of allowing for a fair trial in a media saturated environment.

There may be no solution to this problem short of a radical restructuring of these competing rights, something surely not to be expected in the near-term.

The rape case in Orange County presents a different clash. It would come across as amusingly hypocritical if it weren't at least a bit outrageous. On motion of the defense, the Superior Court judge has ordered that a videotape allegedly taken by the accused and showing them in the act of raping the young woman is not to be shown to the public.

In response, the Los Angeles Times, the Orange County Register and CBS have objected to the ruling.

Here is a short excerpt from a piece in the April 23, 2004 edition of The Los Angeles Times.

A judge ruled Thursday that the key evidence in a case against three youths accused of raping an unconscious girl -- a videotape they made of the alleged assault -- will not be shown to the public during the upcoming trial.

Orange County Superior court Judge Francisco P. Briseno said the accuser's right to privacy outweighed the need to reveal the evidence in open court.

Attorneys representing the Los Angeles Times, the Orange County Register and CBS objected to the judge's decision. The network is documenting the case for an episode of "48 Hours."

The story in the Times quotes various learned authorities including Laurie Levenson, a well known local legal expert, who offers up perhaps the best, but most frightening argument: "The public will have no way to assess the evidence for themselves."

To this, I would ask, "So what?" The purpose of the trial, I would argue, is to get the proper evidence in front of the jury in a fair way. The idea that the only way to assure ourselves that our system is fair is to make every bit of evidence public, in order that every jury verdict may be second-guessed by law professors is going too far.

It is an excessive interpretation of the argument, true in general, that a free press is the best guarantee of our fundamental freedoms. It is excessive because it extends freedom of the press into the realm where this freedom would impinge on the equally fundamental right of the defendant to have a fair trial and for crime victims to enjoy at least minimal privacy.

Meanwhile, CBS wants that footage, or even the right to have its reporters view that footage, as part of a show it is preparing for its 48 Hours series. There is little need to comment or speculate on why CBS wants to get its hands on the sex tapes. Television viewers already have enough evidence to evaluate the sincerity of this argument.

Copyright 2005 Joe Shea The American Reporter. All Rights Reserved.