Monday, October 4, 2010

Can Trials Be Fair with Freedom of Press?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[emphasis mine]

These are some of the founding principles of our nation. They sound really good, especially the part about no hindering of freedom of speech or of the press, until you couple them with Amendment 6 of the Bill of Rights: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury [again, emphasis mine]..." With the 24-hour a day cable news channels and the even more prevalent Internet news sources, crimes are reported faster than ever, and suspects are photographed, named, and displayed for all eyes almost as fast as the police find them.

I'm not advocating that the First Amendment needs to be scrapped and remade or that criminal proceedings should go unreported by the press. But there should be a certain amount of accountability for reporters when it comes to the court of law.

Perhaps a little bit of background is in order. Less than three weeks after I arrived back in the United States after a year away in Japan, I received a jury summons in the mail. How they knew I was back in the country before most of my friends and family even knew I was back is a question for another time. Nevertheless, my civic duty called, and I answered this week (which amounted to 5 hours of waiting to not be called).

After checking if there's any legitimate reason someone is ineligible to serve on the jury--i.e. health conditions that make extended sitting difficult, single caretaker of a child/children, only employee of a business--a judge goes through a list of instructions for the remaining jurors. Included was the order that the case we hear should be decided solely on the facts and evidence presented in the courtroom. We are not to bring in an outside knowledge of the case, we are not to look up information on the case once we begin to hear it, and we are to avoid talking about the case with anyone outside of the courthouse.

But when the news and dissemination of information is so pervasive in our society, ignoring outside sources during a trial is a lot easier said than done. I could probably get by without learning much about the case I would hear in little old Titusville, Florida. Information on another trial, however, might not be so easy to escape from as a potential juror.

In the summer of 2008, a 2-year-old girl named Caylee Anthony was killed. The girl's mother, Casey Anthony, was eventually arrested after some initial dodging of the police investigation, and is now on trial for her daughter's death. A timeline of the events can be found here. Whether or not Casey Anthony is guilty should not be for the public to decide, but through the television shows of Nancy Grace and other "news" personalities, her story was made national. It would be hard for Casey to get a trial where her jury didn't already know the details of the case anywhere in the country, let alone in Orange County, where the Constitution declares she should be tried.

I suppose the burden of coming into a trial unprejudiced should be on the jurors themselves. But I can't help but rest much of the blame of bias on the way criminal proceedings are reported. Depending on the severity of the crime committed, suspects are often found guilty in the court of public opinion even before they are formally arrested by the police. What happens if a person's reputation is so damaged during the course of a trial, but they are acquitted of all charges?

Well, thanks to the 1974 Supreme Court case Gertz v. Robert Welch, Inc., the press or other entities may be sued by a private citizen should they be socially destroyed. The Court established that individual states may set the bar for private citizens to sue based on libel, and it doesn't have to be as severe as the "actual malice" standard set in New York Times Co. v. Sullivan involving public officials suing for libel damages.

So what does that mean in layman's terms? It means that it is very difficult to sue--and win against--the press or members of the press for things said about a defendant leading up to and during a trial. It is possible, but it must be shown that the reporter(s) acted recklessly and poorly investigated the story before publishing it.

The only advice I can give is to follow the Golden Rule. I know it's tough to look unbiasedly at the person sitting at the defendant's table, but if we were in that same chair, wouldn't we want our jury to act judiciously? Despite what certain pundits like Nancy Grace think, our judicial system still follows the code of "innocent until proven guilty."

Whattaya say we act like that?

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