Media circuses undermine right to a fair trial
By R. FOSTER WINANS / Los Angeles Times
When Martha Stewart leaves prison this weekend, she will walk into the
arms of a media circus and a commercial juggernaut that promises to turn
what would be a shameful moment for anyone else into a triumph of marketing.
There's something terribly wrong with this picture, and what it says about
our culture's ethics and sense of fair play is deeply disturbing.
In the good old days of the 1980s, when I was a Wall Street Journal columnist
convicted and sent to prison for insider trading, celebrity justice meant
scuttling in and out of courthouses through side doors with your head
down and your mouth shut. A few of us who thought we had some insight
to share about our bad behavior wrote books and appeared on talk shows,
but always after the fact and with remorse. We did not hire armies of
advisers to spin the case before trial, nor did we send our relatives
out to appear on “Larry King Live” to testify to our loving
natures.
Today, there are no rules. We are treated to the spectacle of Scott Peterson
achieving rock-star status before his conviction for murder, Michael Jackson
dancing atop an SUV on his way to arraignment on charges of child molestation
and, during her trial, Stewart posting reassuring notes to adoring fans.
These manipulations by the defendants directly undermine our judicial
system: Innocent people are identified as suspects; witnesses' lives are
ruined; it becomes impossible to pick an untainted jury; jurors are distracted
by their fear of or desire for fame; judges are distracted; ambitious
prosecutors and defense attorneys try cases on talk shows before the first
witness is called; costly mistrials are triggered.
Our fascination with celebrity justice sends a perverted message about
the difference between right and wrong (there isn't much) and about equal
justice for all (there isn't any). It all started in the 1980s, after
my case became public, when then-U.S. Attorney Rudolph Giuliani became
notorious for grandstanding for the media by having Wall Street suspects
shackled in their offices and perp-walked to the booking room and for
discussing evidence on the courthouse steps. Giuliani helped legitimize
trial by media, and defendants have been fighting back ever since.
You can blame the media, and certainly the suspects and defendants. But
the real culprit is the U.S. judicial system itself. And the fix is so
obvious and simple. What we need is an American version of Britain's 1981
Contempt of Court Act, which prohibits media coverage of trials until
they are over. In criminal cases, the blackout begins the moment a person
has been arrested, or charged, or summoned to appear in court, or a warrant
is issued for his arrest. Only when the verdict is in, or no charge is
filed, can the first reports be published. In civil cases, the blackout
period begins when a case is set for trial. During the blackout, the trial
is still open to the public. The right of the media to report on it is
not abridged, just delayed to allow for an unpolluted atmosphere in which
justice can truly be blind.
Whether a British media outlet has produced a story that is in contempt
of court is determined by whether it creates a substantial risk that “the
course of justice will be seriously impeded or prejudiced.” The
decision whether the media can cover a pending case is left up to the
presiding judge.
Although the British media have sometimes tested the limits, the government
has imposed hefty fines and in recent years further tightened the restrictions.
What do the British know that we seem to have forgotten? That justice,
whether criminal or civil, is not a form of entertainment. Nothing is
more basic to human liberty than a fair trial. This right has been substantially
eroded in the last decade by our willingness to let those who are not
judges or jurors call the tune.
The First Amendment lobby would howl in protest if any version of the
British system were considered here. But I would argue that the First
Amendment right to free speech should never trump the Sixth Amendment
right to “a speedy and public trial, by an impartial jury.”
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