When judges act as editors, public loses out
By Douglas Lee
Special to freedomforum.org
Trial judges, we’re too frequently reminded, make lousy newspaper editors.
As 2001 came to a close, a flurry of trial court decisions confirmed the year would be another dismal one for press freedoms. While the decisions stretch from coast to coast and involve a variety of different circumstances, all feature judges unable to resist the temptation to play editor. Unlike real editors, however, these judges have little regard for the public’s right to know.
Three of the decisions merit and perhaps even require special attention. In South Lake Tahoe, Calif., a trial judge hearing a murder case initially barred the Tahoe Daily Tribune and other newspapers from publishing color photographs of the defendants. The unusual ruling followed a defense request that the defendants be allowed to appear in court in street clothes, rather than their orange jail jumpsuits. The jumpsuits, defense counsel argued, could lead potential jurors to presume the defendants are guilty.
At the first hearing on the issue, Judge Jerald Lasarow denied the motion but threw the defense a bone the newspapers, he said, could not run color photos of the defendants or any photo of a defendant showing “jail-type insignia.” These restrictions, the judge apparently believed, would preserve an untainted jury pool.
After considering the issue again on Dec. 20, Lasarow changed his mind and said the defendants could appear in street clothes. Then he threw the media a bone the newspapers, he said, would be allowed to publish color photos of the defendants, as long as the photos showed the defendants in street clothes.
At best, Lasarow’s rulings are uninformed. At worst, they’re ludicrous. If potential jurors presume the defendants guilty, it will not be because of what the defendants are wearing. Rather, it will be because they have been arrested, charged with the crime and are in custody, facts the newspapers are free to report.
Moreover, the rulings are wholly ineffective. Banning color photos and “jail-type insignia” never would have fooled anyone. Even the densest potential juror would not have confused a black-and-white photo of a jail jumpsuit with the latest in courtroom fashion. Lasarow’s second ruling is no better, as it apparently bars the newspapers from publishing photos taken earlier in the case and unnecessarily infringes on the newspapers’ right to choose how they will cover the proceedings.
While it’s difficult to imagine a ruling more flagrantly unconstitutional than Lasarow’s, the decision of Tennessee Circuit Judge Allen Wallace comes close. In this case, a criminal child abuse prosecution of Tennessee state Sen. Doug Jackson, Wallace sealed the plea bargain. After the secrecy of the deal predictably resulted in a firestorm of criticism, both Jackson and the prosecutor asked Wallace to release the terms of the agreement. Amazingly, Wallace refused.
“I feel like we’re here this morning for the benefit of the news media and not for the benefit of this child,” Wallace said in denying the joint request to unseal the plea bargain, “and that kind of bothers me.”
It should bother the public, however, that Wallace, while perhaps well-intentioned, failed to recognize the vitally important surrogate role the news media play for the public, especially when covering the criminal justice system. The public, more than the news media, benefits when plea bargains involving elected officials are open to scrutiny. And in this case, in which prosecutors reportedly agreed to dismiss the charges that Jackson abused his 16-year-old daughter if Jackson and his family sought counseling, the public is entitled to ask whether justice was done.
An uninformed public was also the goal in Camden, N.J., in early December when Superior Court Judge Linda Baxter charged four Philadelphia Inquirer reporters with contempt for publishing the name of the jury forewoman in the trial of Rabbi Fred Neulander, who was accused of arranging for his wife’s murder in 1994. Baxter initially barred the media from identifying or contacting jurors during the trial and then renewed the order after the jurors’ inability to reach a verdict resulted in a mistrial.
The Inquirer challenged the order after the trial, but the state appellate court affirmed Baxter’s ruling, saying that history showed a “strong likelihood that continued publicity predictably will impair the defendant’s right to a fair trial.” Baxter’s order, however, doesn’t limit publicity before the next trial. Instead, it prohibits coverage of jurors, coverage unpopular with some jurors and almost all judges.
The purpose of the order was tellingly revealed by Jeffrey Zucker, one of Neulander’s lawyers: “We don’t want the potential jurors to be concerned that if they have the guts to acquit, they’d have to answer to anyone, including the press,” he said.
When, however, did jurors earn the right to be unaccountable for their decisions? Does anyone really believe that jurors in a capital murder case will be influenced by whether reporters will be allowed contact them? And, if so, how can we possibly place the life of an individual in the hands of persons so worried about their own personal inconvenience?
The Inquirer’s publication of the forewoman’s name was intentional and included in an article with four bylines, which suggests the paper is prepared to fight for its right to publish the name which was revealed in open court and public records as long and as hard as necessary. Let’s hope the Inquirer ultimately is successful and that some court somewhere finally rejects the notion that a juror’s desire for privacy trumps the public’s right to know.
And, while we’re at it, let’s also hope that in 2002, judges are content to leave editing to editors.
Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Badger & Lee and a legal correspondent for the First Amendment Center.
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