Moderator:
That's what you know. Caroline, what do you want to do? What do
you need to know? Who are you trying to serve?
Lowe: I guess it would depend a lot on where the information
was coming from. If I heard it from someone like (Lieutenant)
Brad Johnson, I would probably give it some more credibility and
would wrestle with the information, then go back and talk to my
editors about what do do. First of all, we would not identify
the person if he has not been charged. We'd take a look at it.
I guess, I don't know how significant I would put the clippings.
It's interesting. I think that's one of those things I might hold
off on in terms of putting out information. but if there had been
quite a bit of publicity about a serial rapist at large and somebody's
been arrested, I'd certainly be reporting it.
Moderator: Inspector Johnson, would you tell her about
the clipping in the man's pocket?
Inspector Johnson: Probably not. The reason being, right
away they jump to conclusions that this guy - it's a known fact
that perpetrators will sometimes keep a momento or they'll cut
clippings out of the paper if it's a crime that they're connected
to. If you give that information to the media they're going to
jump to the conclusion that this guy is responsible for the (rape
mentioned in the) clipping and any other rapes at that period
of time. So I think that's something we'd probably keep to ourselves.
Moderator: Paul Adelmann, why did the St. Paul police -
before the man who was accused of killing those two police officers
recently, before he was charged - why did the St. Paul police
say he had confessed?
Adelmann: In this case it was part of the actual affidavit
that came out with the charges, that he did talk to us. We wanted
to let the public know that this person had talked about it, that
he just didn't shut up when we arrested him, and that he'd actually
addressed the issues involved in this. There was such a public
interest in that case that we felt that we needed to reassure
the public that this person had talked to us and given us some
information. There were still questions about how many people
were actually involved in this horrendous chain of events and
it gave us some basis for saying that we knew quite a bit about
what had happened.
Moderator: Joe Friedberg, what do you think about that?
Friedberg: I don't believe it. That could have been achieved
by issuing a public statement that all the information the St.
Paul Police Department had indicated that there was only one culprit
and they felt the public was safe because that individual was
in custody. I don't think they had to publish the fact that there
was a confession when, in fact, a confession can end up being
suppressed. I think it's the public's right to know and the press
has to try to find out; the people involved in law enforcement
and defense ought not speak to them.
Meshbesher: I agree with Joe's remark, but I think it's
fairly idealistic, given the competition between the various news
media outlets. It seems to me that eventually the fact the confession's
going to come out. If it didn't come out then, it would come out
in a probable-cause affidavit, or somewhere along the line. But
the problem arises from the exact point that Joe makes. What about
the evidence that will never get in before the jury? That's what
we're mainly concerned about. If the jurors have heard about a
confession that gets suppressed, therein lies the problem. And
I think it's an unsolvable one. It's one we have to live with.
Moderator: Gwen Jones Spitz, what's your concern in this
case?
Jones Spitz: Well, I have never been on a trial jury, but
I find it hard to believe that a juror who has read in the paper
that there has been a confession is going to approach the case
in the same way as one who hasn't, if the confession isn't allowed
into evidence.
Moderator: Susan McPherson, what do you know about that?
McPherson: Her remark reflects what the research shows
as well, which is that certain kinds of evidence have a tremendous
sticking power and that (judge's) instructions are not ideally
going to cure that problem at all. You'd like to think that pre-instruction
or post-instruction would help to change the venue - that those
kinds of remedies would make a difference. But pretty much the
research is very discouraging about whether the remedies really
do ameliorate the effects.
Moderator: Tell us about how you size up the validity of
that research. What kind of a sample was it? How do we know?
McPherson: Well, the studies have been, some of them have
college student subjects, some of them have real juror subjects,
some of them real trials that were taped and edited down, some
of them have trials that I think are fairly unrealistic. So each
of the studies has a problem that you can pick away at and say,
"Well, that isn't really very realistic." But I think
what you've got to do is look over the past 20 years of research
and see that there is a consistent finding that there is going
to be a staying effect (from pre-trial exposure to evidence),
especially certain kinds of evidence: prior record, defendant's
character, comments in the newspaper, as well as inadmissible
statements.
Torres: I agree with Joe and Ron on this, but I think what
concerns me more when I see those kind of situations is what I
refer to as the symbiotic relationship between the prosecution,
law enforcement and the media. In the case of the two St. Paul
officers, I think that's when you see there this symbiotic relationship
that they have. And while I understand that the police department
wants us to believe that, in fact, the purpose of releasing a
confession is so that the public at large can feel safe, I think
it's more than that. I think it's part and parcel of that relationship
that both police and prosecution and the media have. And it's
a concern of mine because throughout any high-profile case I think
you always see the defense has an uphill battle. In a case like
this, should in fact it be the case that (this) particular confession
was taken under duress perhaps, or things were done that weren't
legit and perhaps statements made that weren't legit, that confession
is already out there and the possibility of any potential juror
who's heard this confession having an objective perspective is
going to be fairly minimal. And so I think I'd concern myself
more with this relationship between prosecution and the media
that I've seen over the last 20-30 years develop. And as far as
I'm concerned, it's a pretty scary relationship.
Moderator: Dan Byrne is a prosecutor. He's sitting to your
left. What's your assessment of that symbiotic relationship?
Byrne: I don't know that there is (a relationship) as such.
It happens sometimes, on some significant cases, but in general
run of the mill cases there is no relationship between our office,
at least, and the press. If there is, such as Tony Torres says,
I disapprove of it. I spent 20 years in news work and 25 years
as a prosecutor and I support the philosophy behind the fair trial/free
press standards.
Moderator: How much support do you have for your commitment
from your colleagues to the fair trial/free press guidelines?
Byrne: I don't know the answer to that but I'd like to
flip that question. I'd like to ask how much dedication there
is among the media to those same guidelines. There was a time
pretty recently that the press wouldn't cover pretrial hearings
where the existence of prejudicial evidence was made known. That
was common in the '70s and '80s. They didn't publish, in advance
of the trial, the fact that prints were taken, blood was matched,
confessions were had. Is that your memory?
Reporters voice disagreement.
Reporter: It may be an isolated case, but anytime a case
gets highly visible, those rules generally go out the window.
It may have been true for the run-of-the-mill lawsuit, but it
wasn't true, for example, of the Jean Thompson case and that's
34 years ago.
Reporter: Thompson was just before the Shepherd versus
Maxwell case. Mitchell was after Shepperd and in the Mitchell
case we covered the hearings and did not say what the evidence
was or what the statements were. We reported the circumstances
of their getting the evidence and the circumstances of their giving
the statements, but we didn't say what the evidence was or what
the statements were, and I know that because I have clippings
that I looked up recently about that.
Moderator: Now you mention the Shepherd case and for those
who may not remember it, it's Dr. Sam Shepherd in Ohio, who was
accused of murdering his wife and his conviction was overturned
on appeal and a new trial was ordered. Not only did they cite
a circus atmosphere at the trial, but one of the newspapers in
Cleveland ran a big headline before he was even arrested saying
"Bring Him In." Don, you remember that? Don Gillmor?
Gillmor: It was as celebrated a case as we'd had up to
that time and that is in anybody's recent memory. I'm sure there
were cases earlier that were handled in very much the same way
by the media, but that case didn't have a lot of effect, ultimately,
on the media. It had more effect or more influence in reining
in attorney's, and giving the judge - the Supreme Court clearly
spoke to judges to keep control, keep their own courtrooms under
control. And I think the media sort of came out of that pretty
well.
What happened to these fair trial/free press councils is that
they were simply overwhelmed by the number of violations of the
guidelines in all of those states that had them. That's certainly
what happened here, as Judge Rogesheske, who was the chairman
of that committee, the charter committee of which I was a member,
will attest. There were so many violations that it was impossible
to keep up. The Council ended after Chuck Bailey and I had a public
debate on the way the Minneapolis Tribune, specifically, had covered
three rather sensational cases that were going on about the same
time: the Congden murder case; the Don Howard case, where a man
was convicted, ultimately, of killing his wife in the back of
his hardware store, and the Piper kidnapping case. And everything
in those guidelines were violated by what, at that time, a lot
of people considered the best newspaper in the state!
Moderator: Caroline, you were about to say what measure
of commitment you and your news organization feel to the guidelines.
Lowe: I think we feel a strong sense of fairness. I feel it personally
in what I do, whether it's in trying to get the defense side of
something and some defense attorneys are more cooperative than
others. Torres mentioned a symbiotic relationship, or whatever.
I think we get a lot from defense attorneys. you'd be surprised
the number of stories we break that come from defense attorneys.
It may not seem that way, but they're often the source of information.
As a reporter, I work with both defense attorneys, with prosecutors,
and police - police being the largest proportion because that's
in the early stages of when things have not hit the courtroom.
But defense attorney's provide a lot of information.
Moderator: Give us an example of something a defense attorney
has told you that turned into an important story.
Lowe: I'd be violating something right here. I think it
would surprise people some of the bigger stories that we've done
that were done with defense attorneys. They'll say, "What
are you working on?" and point me in the direction. They'll
be the same people that will be no-commenting publicly, but often
will point us in the direction.
Moderator: Let's come back to the guy that was apprehended
in the parking ramp for a moment. Virginia Rybin of the Pioneer
Press, you have a source who is a social worker in the prison
system. She hears about the arrest and calls you to tell you that
John Smith, the man who owns the home where Duane Jones, the suspect,
is staying, went to prison ten years ago for sexual abuse of a
juvenile - Duane Jones. The social worker suspects and offers
you the hypothesis that Duane Jones feels so humiliated and angered
by being back in the clutches of John Smith that he's going out
and raping women to counter-balance this homosexual experience
he's having. What do you do with this information?
Rybin: That's all secondhand hearsay - hearsay almost.
I would do nothing with it. at this point. I'd store it in the
back of my mind. At this point this guy is not charged with anything
major. The police, as I understand it, have not even said that
he is perhaps the serial rapist that's running around. I mean
the police have not said that to us. At this point I would just
have a story about a man arrested in a parking ramp for an alleged
sexual assault, who happens to - I would mention his prison record,
however, because I would think that was relevant.
Moderator: Now, let's talk about that. The mention of his
record and prior arrests, does anybody have a problem with that?
Friedberg: Yes. I've got a lot of problem with that. For
the most part that's totally inadmissible testimony and it's the
type of thing that can really hurt your ability to defend somebody
and it may have absolutely nothing to do with the case. It will
affect the amount of bail that's put on a person if he's charged
in a state where judges are elected. It will have an affect on
the amount of bail requested in a system where the prosecutors
are usually inhabiting their offices as a jumping-off point to
higher political office. It holds up the people in the system
to a standard that's expected of them to do more about it. And
in the last analysis, it really may have nothing whatsoever to
do with the case. I think that the public is entitled to know
that there is somebody who may be charged with a crime in parking
ramps, that he may or may not be the person who's committed similar
crimes in parking ramps so that they can protect themselves against
getting raped in parking ramps. However, it doesn't do the public
any good to know that this individual may have been in trouble
before. And I think the media should restrain itself from publishing
that type of information.
Rybin: But then you raise the question: of should we never
publish, for example, if a person has been arrested for another
crime, let out on bail and while out on bail they commit an offense?
Perhaps, I realize that judges are up against great pressures
as these people run through, and I'm not blaming the judges necessarily,
but the point is - does the public have the right to know that
something like that happened, that the system made a big mistake
with this person?
Friedberg: I think that's different. than what we talked
about before. Yeah, if somebody is released on bail and commits
another crime while he is free on bail, it's newsworthy and it's
over the line. It should be reported. the public's entitled to
know it.
Gillmor: I just wanted to note that on the question of
prior criminal record, the lawyers and judges and the journalists
and law enforcement officers who were responsible for drawing
up the guidelines that we did have, which probably nobody's read
for 15 years, we could never agree on prior criminal records,
so we just left it out. It's not referred to on either side of
the little cards that we distributed so widely. That was a tough
one. We had no problems with confessions. We had evidence 30 years
ago that of all kinds of pretrial information that might be distributed,
nothing was more damaging to the rights of the defendant than
news of the confession prior to trial.
Judge: There are some aspects of the criminal trial that
I don't think you can lay at the feet of the press, and that is
if they publicize the prior record, that's going to have a significant
affect on the bail set. The public may not know and the press
may not know, but the judge is going to know the prior record
before he sets bail. The judge is given the prior record, the
judge doesn't have to go to the newspaper to find it out. He's
going to be given a pre-sentence invesigation which includes this
prior record, and he will take that into consideration. He's supposed
to take that into consideration in determining what bail to set.
So you can't lay that one on the press.
Reporter: You bump up against the Data Practices Act in
that criminal histories are public information. In the county,
for instance in Ramsey County, You can come down and get a criminal
history on anyone; so it's public information. So how do you resolve
that issue? The law says this is public information?
Judge: I think I prefaced what I said with the fact that
I believe the media should exercise their own restraint in that
area. Just because the data is available doesn't mean that it
should be published. And maybe that's kind of just telling the
public those things they need to know, but I think that is far
more troublesome than it is newsworthy. You could, following that
same line of argument, publish the fact that in all likelihood
the individual is guilty because statistically most people arrested
are! That's not something that I think needs to be printed.
Moderator: Bill Kennedy, this guy in the parking ramp has
been assigned to the public defender's office for you to defend.
A groundswell of public opinion is building because of media attention
to the serial rapes. What are you going to do to protect him?
Kennedy: First thing I'm going to do is go to Caroline
and see if I can look at all the outtakes at Channel 4 and if
I can't bring Channel 4 into court to take a look at their outtake
tapes, I will look at all the news articles and I won't make a
judgment, as a lawyer. I'll be in front of Judge Burke the following
morning with a motion to put a gag order on everybody, starting
with the prosecutor and the police officers and everyone else.
That isn't going to work, of course. The genie - pretrial publicity
- got out of this bottle about 35 years ago, and all our discussion
tonight seems to be "How are we going to put the genie back
in the bottle?" The answer is, it's impossible to do that.
What we ought to do is take a look at what the problems are and
go on from there.
I personally think a free press should be allowed to publish whatever
in the world they want to publish- at their peril. By that I mean,
if your pretrial publicity causes me to successfully bring a motion
in front of Judge Burke for a change of venue, your newspaper
is going to pay the cost of that. If you invade my client's privacy
or a witness' privacy and that's actionable, your newspaper or
your TV station is going to pay some damages for that.
If we really believe in a free press, I'm not saying you've got
to trust them, but you've got to turn them loose. When you go
to Europe they are obsessed with a fair press, and the government
in power determines what is fair. That's true, whether it's England
Scotland, Wales, Ireland, France, Belgium, Germany, the Scandicanvian
countries. Watch the press coverage over there. You can't find
out what in the world is going on! Now, as much as I dislike some
of the publicity on some of the cases we've had, I would much
sooner live in this climate.
Moderator: Your motion for a gag order is going to be opposed
by Paul Hannah.
Hannah: Well, I presume that Bill is only moving to gag
the participants - the officers of the court - not the media,
since it's been a long time since anybody's been able to restrain
the media by law from publishing information that it has. I'm
sure you'd try. Hopefully that would be the part that I would
win.
The part that I might well lose would be attempting to argue on
behalf of the public that the judge ought not gag the participants
prior to trial because both parties - the prosecution and perhaps
the defense in this case - have interests that they are trying
to communicate to the public, and I will probably lose that part.
If the judge feels that both sides are attempting to manipulate
the media or abuse the process, the judge may, as he has done
in the Simpson case, (and I think reasonably) impose a gag order
on the participants on certain items. And I think that's a perfectly
legitimate way for the trial court to try to avoid the Shepherd
versus Maxwell issues.
But I'm actually a little concerned by the fact that anybody thinks
that if there is information that has been obtained by the media
that the media, as a group, is going to voluntarily agree not
to publish it. I mean, that might have been true in the 1960s
when the Shepherd case was decided and shortly thereafter, but
that hasn't been true for 25 years!
The legislature says "We want votes so we're going to pass
a law that says criminal histories are public record, so you can
all go out and check on your neighbors if you're all afraid."
Well, that's fine, the legislature gets a vote but then someone
says to the media "But when you get that information, which
is public, you shouldn't publish it because it might affect the
defendant's trial rights." I think we've got the whole process
upside down. when we say we'll rely on the media to restrain itself.
I don't think that's what the Consitution requires; I don't think
that's what the founders expected.
Torres: I would disagree with Paul, but I also agree with
Paul. We're now in the 90s and when I say that I mean that we've
got cable television, entertainment talk shows, Sally Jessie Raphael,
and these other folks - information is going to get out. We're
not going to be able to stop it. And I think the media is not
going to restrain itself from providing that information.
From a defense standpoint, I think we recognize that information
that gets out generally comes from prosecution and from law enforcement
because they have access to that information long before the defense
council does, in most cases. I think what we're going to see is
the advent of the attorney/marketer/salesperson who's going to
sell his case to the public at large and I think that's what you're
seeing in the O.J. Simpson case. I think that's what you saw for
the most part in the Robert Guevara case. The same information
that the prosecution puts out with spin doctors, we take that
same information and turn it around so that we also are tainting
potential jurors.
I think we're kidding ourselves to suggest that this doesn't go
on and that both parties don't play a role in it. They certainly
do and I don't see that coming to an end, and in fact I would
not want a gag order because I think those very good defense lawyers
are going to be able to persuade the public that their client
is, in fact, innocent and should get a fair trial, as opposed
to those who are not so swift.
Schlauderaff: My concern (as a victim's advocate) on the
Guevara case is what if there isn't any sort of screening of information
as far as sensitivity. The information goes out, the public has
a perception of what the family's like, what's going on at home
and the child's life, and makes a determination based on a moral
judgment about how the victim lived and it influences the outcome.
Where does the victim go from there? And what about all the people
in the system who have worked very hard and they don't feel like
the evidence is ever really weighed, that it's more of a knee-jerk
reaction from the public to some information that's provided to
them that may have been correct or incorrect, but isn't actually
relevant to the crime? Where does the victim go if something like
this happens and the defendant is acquitted?
[NOTE: In the Guevarra case, tried in St. Paul, Minnesota in approx
1992, defense attorney Torres brought out information about the
lifestyle of the mother of the child murder victim.]
Lowe: I think it was part of the defense. Anthony Torres
brought out the different things, that was part of it. I think,
in fairness, if you're covering the trial day-in, day-out, that
would be part of what you report.
Schlauderaff: I honestly believe in the system and that
certainly everyone is innocent until proven guilty and that's
the way it needs to function. I just wish that there was more
of a process where information was evaluated pre-trial, prior
to releasing it to the public so the outcome isn't affected, so
there is a sense of justice - that justice can exist.
Rybin: I feel different about that coming out pretrial
versus the stuff that came out about the mother during the trial,
because most of it came out during the trial regarding Mona Williams.
Torres: You could take a look at that trial and say a lot
of things about that. I can remember 7:00 press conferences while
I'm sitting at home and there's channel 4 and 9 talking about
shower curtains found and I'm sitting here watching this on television.
Why are they having a press conference about evidence in the case
that what may or may not have been found? I saw that. I also saw
photos of the family and the poor little girl missing and what
nice kids and people they were. You have to attack that. You can't
allow your client to be tainted. So, if Mr. Torres goes down and
picks up social service records and the news media wants to be
there, so be it! But we're going to play on even ground on this
matter.
Friedberg: It's a fundamental problem. First of all, it's
unethical to comment on a pending case where your comment may
reasonably be believed to affect the ultimate decision. And the
way I look at that is very simple. I'm not going to say anything
unless the prosecution does. And the day that the Board of Professsional
Responsibility starts to enforce that precept against people who
are doing it for political reasons, rather than actually doing
the prosecuting (who very rarely violate this precept), then I'll
stop acting in self-defense.
Lawyers are not supposed to comment on pending litigation, EVER,
no how, no way! The problem is that the people who get elected
to the top prosecution posts in this state, and probably most
others use it as a jumping off spot for higher political office,
and continue to talk to the press, to have press conferences and
to try to affect public opinion. That's wrong - it should never
be done - and defense lawyers are just as unethical as prosecutors
when they do it, unless they're doing it in self-defense.
Moderator: Joe is issuing a call to action here. He's talking
about the Board of Professional Responsibility having some teeth.
The news media are different from lawyers and doctors. There has
to be self-restraint. There is no licensing of reporters. The
news media have to do it on their own. In Britain the courts tell
the media how to behave... and I want to ask Don Gillmor, what
price does Britain pay for that?
Gillmor: They pay a very high price, actually. But Britain
does protect the rights of a defendant much better than the rights
of a defendant are protected in this country.
You have to remember when we talk about the press, we're talking
about the rights of a complex organization or we're talking about
the rights of the people collectively. It seems to me that the
rights of a defendant are different - there's individual rights
in a very pure form. The individual legates the power of the state.
A lot of the conversation here would suggest to me that we really
don't believe in the presumption of innocence as a doctrine. When
I have to measure social rights, which are always difficult to
define, against the right of an individual person, then I have
no troubling opting for individual rights.
We win a lot more than we lose in the media in this country because
of the First Amendment And I don't ever want to give that up,
nor do I want to modify it in any way whatsoever.
Hannah: I have a problem with this assumption that this
process is not only weighted against the defendant, which I'm
willing to accept, but that the defendant's fundamental rights
are harmed. There have been a lot of very important cases that
have had a lot of press coverage in this state, and of all of
those cases in my past - professional past - which would include
the last 20 years, I have not once, I don't believe, seen a single
appellate decision that the fundamental right to a fair trial,
an open and public trial, has been violated either by the media
or the participants.
If we rely on the participants to follow the rules: the judge
to keep order, the media to report what information is public
and the jury to do it's job, and we come up with no reversals
based on the fact that someone's fundamental rights have been
denied them, then it sounds like the system works, pretty much.
And the concerns we have are sort of future concerns about the
next case we're going to be having to deal with, as opposed to
cases in the past. Historically, all of these horrible things
don't appear to have occurred.
?: It strikes me that that's a bit naive. What about the
pressure you put on jurors?
Torres: For example, if you take the Guevara case. The
media decided to run editorials saying that (the jury) had to
answer to the community "Why did they find Mr. Guevara not
guilty?" The impact is not just on a case that's over. It's
an impact on jurors who are called on. "When I'm called up,
will I have to answer to the community if I don't give the most
politically correct decision?" And indeed, in a case that
Judge Moss had, that's the argument prosecutors are making to
jurors now. "You'll have to answer to the community if you
don't give a politically correct result." It is important
that we focus upon that, because the danger that we can become
like Albania or some other country is real. There's nothing inherent
about the United States that says our freedom is somehow in our
DNA and we can't end up in a society in which free press is not
protected or the rights of defendants are not protected. So I
think that's just a bit naive to think there is no problem because
there haven't been any reversals recently.
Rogescheske: I really am behind the times, but I wonder
if we're thinking about the defendant. Would you like to be the
defendant and have your case tried in the press? The prosecutor,
the prosecution violating its duty, leaking things to the press,
and the defense doing likewise? And you sit there and have no
way at all to be assured that the jury is only going to hear the
evidence introduced at the trial.... If that doesn't happen, if
the defendant doesn't have that feeling that his government gave
him a fair trial....
Rybin: I was just going to add something to what Paul said.
Not only can't one remember reversals, but also granting of change
of venue are pretty rare. And when you talk about pressure - if
there were a problem, you would think that more judges would be
granting changes of venue.
I don't know if that much pressure was put upon jurors. I think
the Guevara jurors could have figured out there was going to be
that kind of pressure as they were sitting there in the room,
and they made their decision anyway. I think people can sort through
things. The idea that we need a fundamentally uninformed juror,
which is one thing that's always bothered me about this whole
thing, is kind of silly. If you want somebody who has never read
a newspaper, if you want somebody who knows nothing about things,
you get the most fundamentally uneducated, the worst people that
you would want as jurors. I think people take this very seriously
and are able to sort through information.
Torres: Let me just take the change of venue. You take
the minority defendent, you're basically telling a defendant who
has been crucified in the metro media, "Let's go out to Hubbard
County and see a jury there." That's not particularly attractive
to the defendant. The change of venue that's granted tends to
be "I'll go from Hennepin down to Dakota, from Dakota to
Ramsey." And we kind of stay within an area where who's kidding
who? There isn't any place you could go to really make the change
of venue particularly meaningful. Particularly if you look at
the electronic media.
Friedberg: There was some move afoot to enact a uniform
change of venue statute that would be joined by all 50 states
so that publicity that was limited to a state or two could be
overcome by transferring that case to trial out of state. There
are a lot of constitutional problems with that legislation. But
it's a remedy that might work. It would never solve the O.J. Simpson-type
case, where the publicity is so pervasive that you couldn't put
O.J.'s case on Mars and not find somebody up there who hadn't
heard of it. This is nothing new, this isn't the last 30 years
or 40 years, this is from time immemorial.
The clash between the right of an individual to a fair trial and
the right of the public to know through a free press, has been
with us. The Lindbergh case was perhaps the worst case of improper
journalism we've had until the O.J. Simpson case. And that was
in what, 1934? Whatever it was, it was 60 some years ago.So this
is nothing new. And I'm not concerned if the media publishes evidence
that's going to come out at the trial, but I am concerned, as
I indicated earlier, about prejudicial matters that will not be
heard by the sitting jury, but they may have read about it or
heard about it on television. That's what bothers me.
Moderator: Judge Kenneth Maas, from Washington County,
isn't it true that the defense in a case before you made a motion
to suppress certain evidence and in answer to that motion the
prosecution gave the very evidence that was supposed to be suppressed
in open court and the media got hold of it?
Maas: That's correct. There wasn't much I could do at that
point. We did sanction the lawyer there. That was just the beginning
of certain misconducts in that case.
I think this - going back to what both Ron and Joe had to say
- the biggest danger in these things is that something is going
to get to the prospective jurors through the media that may not
be admissible in court. The particular material there that we
were trying to keep from becoming public at that time was Spriegel
evidence of other past misdeeds or alleged misdeeds. As it turn
out in the Spriegel hearing, most of that was suppressed (in court).
Moderator: Was it reported in the media?
Maas: Very little of it.
Moderator:
Virginia Rybin, would you have reported that if a prosecutor handed
you evidence that was the subject of a motion to suppress, would
you use it?
Rybin: There might be circumstances under which we would.
Maas: In this particular case, they had moved that certain
items be heard in camera by the court without media coverage,
or that the court could review it and determine what would be
heard. In responding to that the prosecutor attached the very
material that we didn't want public until I'd had a chance to
review it. And I've got to say that only that was published which
was already in the newspapers and had been from the other cases
elsewhere. I thought the media acted very responsibly in that
case.
Rybin: What was the nature of the material, just real generally?
Maas: Other allegations against him for other crimes in
other jurisdictions.
Rybin: Well, I guess I have published evidence that's been
presented in spriegel hearings and I think that we...
Maas: This was in a motion.