Transcript: a Minnesota News Council Forum
September 20, 1994

(page 2)

Rybin: In a motion, okay, right. But it's the same kind of general thing... It's stuff that the jury is not necessarily going to hear and that... the last case I can think of where I did had to do with the St. Paul police officer charged with the sexual assaults of two women, and there was some testimony heard from other women who allegedly had been molested by him in various ways. And we did sit in on that hearing, I must add we had some trouble getting into it, which we shouldn't have had, and we did publish that. Well, ultimately it became moot, I guess, because there was a directed verdict right after that, by the same judge who decided not to admit the evidence, a verdict for acquittal. But I guess I discussed with my editors whether we should run this. I should add, these decisions are frequently not made by the reporters. As a matter of fact, I wouldn't make a decision like that without consulting with editors, who sometimes disagree. Their feeling was that this was something that the public ought to know about in terms of this police officer being a public figure and it actually became rather important afterwards, in my opinion, because he had been acquitted and we knew - the public had the right to know - that there were still other women out there, this many, five I think it was total, who had accused him of things.

Maas: What happens when you put the issue to your editors to decide whether to run with that story or not? It seems to me one of the major factors today is "Well, is the paper across the river going to run it, or is Channel 11 or Channel 4 and 5 going to run it and we're sitting here like a couple of dummies if we don't mention it in our story." I think that's a major factor and I tip my hat to somebody in the editorial staff, or those people who make those decisions that says "We don't care what the other newspaper's going to do, we're not going to run it." That doesn't happen very often.

Rybin: It does occasionally, though different decisions...

Maas: Not very often.

Rybin: Well, okay. I can think of one (case )just last week about publishing the names of some juveniles who testified in a murder case and there was great debate as to whether or not we would do that. We didn't run them. The competing paper did. And I have no idea... I make no judgment on who was right or wrong, but it does happen.

Friedberg: Let me tell you how it can be done by a responsible press. A number of years ago I tried a case where the venue was changed to Dakota County. It was a death by vehicular homicide: drunk driving, two deaths. During the course of the case three reporters who were covering it came to me and said "Joe, we found out that your client has six prior DWIs and that's inadmissible testimony. We are trying to make a joint decision whether to print that. But if we decide that we're going to, we'll tell you ahead of time so that you can move to sequester the jury."

They made a joint decision not to print it until after the verdict came in. That's the type of thing that can be done voluntarily by the media. And it's the type of thing, if they sit and think about the impact that what they have could have on the system. Had they just gone with it, the unsequestered jury would have heard it, the case would have been mistried, and there's no question that the county that was prosecuting didn't have the budget to re-prosecute. The media would have completely controlled the verdict. Those types of things can be done voluntarily by the media, and should.

Let me make another comment on what Tony said about the Guevara case. The real tragedy of the Guevara case is that the media shaped the news so that the public believes the verdict was wrong. And that's a tragedy because there's no such thing as a wrong verdict. A verdict is based on the evidence (presented) in court and the jury makes a decision and this decision is sacrosanct. It's an irresponsible press that then publishes an editorial that says the jury "has to answer to the public" as to why they acquitted this man. That's an irresponsible press and an irresponsible use of power. That's what's wrong with what they did in Guevara.

Moderator: Joe, when you talked a moment ago about the cooperation among those three reporters, Don Gillmor looked pretty skeptical.

Gillmor: I'm not familiar with joint agreements of that kind among competitive media. I just don't think that happens very often. I wouldn't doubt that it happened in the case that Joe cites, but that usually doesn't happen. I think the problem is which newspaper or television station or radio station is going to take that first step and not publish information that it truly believes, through a newsroom dialogue, to be damaging to the rights of the defendant. It's very hard for journalistic organizations to make that kind of decision in a competitive situation when you're in pursuit of a story. I've been in that situation. I can almost feel the excitement of pursuit after information of that kind. So somebody has to stand back and say, "I'm not going to do it."

Moderator: Well, talk about the genie out of the bottle, in the William Kennedy Smith rape trial, a tabloid newspaper published the name of the alleged victim. "NBC News" used her name, and the New York Times followed suit.

Gillmor: Yep. And we were all so disappointed in The New York Times. The New York Times realizes, I think, that it made a mistake and I hope that will have an effect on future coverage of that newspaper.

Byrne: I would like to endorse what Joe said about the agreement in the drunk driving case. And I think he really answered, for me, or at least talked to the question. I don't know what the loss to the media is if there's simply a delay in informing the public that yes, there was a confession, yes there was matching blood, yes a gun was taken from his house. If there is a loss to the media simply because of a delay, you don't print it on Wednesday when it's in the suppression hearing, you print it the following Wednesday when it's introduced in court. If that is a serious delay, is it not of a greater interest to avoid the risk of a prejudiced trial?

Lowe: I think we're in the business of informing people as much as we can and considering these arguments as well. And I think you'd be surprised how much time we spend, and everybody in this room who's in the new media, wrestling witht he issues we're talking about today. I'm as competitive as the next person, but we do wrestle with the balance and the fairness. But I also want to report it as soon as I know something. I think the public wants to know that.

Moderator: What kind of policy allows a reporter for a television station to run up to a guy who's never been charged with a crime and say "Why aren't you admitting that you killed your wife?" What kind of policy that would allow that to go on the air?

Lowe: I would have a problem with that.

Moderator: We've all seen it. I know you would have a problem with it.

Hardigan: I think we're too quick to say that there's nothing we can do about it. Don Gillmor said "Gee, it's true that in England the defendant's rights are better protected, but they pay a high price." What he didn't add is that in England they're also just as well informed as we are.

So the idea that the hypocrisy and the myth that the media is out to inform people is just.... Newspapers today are advertising vehicles. They're corporations designed to sell advertising.... In England you can find out everything you want to know about a case after the case is over, after the verdict's in. So you can control the media as regards criminal trials and simply have them inform the public.

Dan was saying "Is the media going to be hurt?" Well, it's not supposed to be whether the media is hurt. The media claims they're doing it for the public. They don't say they're doing it for themselves. I mean, they may admit it a little bit, but the point is, is the public going to be hurt? That's the message. Is it going to hurt the public not to know that a confession is suppressed until after the case is over? Or not to know that there was a confession until the case is over?

Moderator: Here you come to a sensitive matter. Let's say that there's a case in which the media would be happy to exercise some self-restraint, but they find out that the investigation is either incompetent or corrupt. And that they, through their own investigative ability, figure that the guy is not guilty and they are able to prevent him from being unjustifiably convicted. There are cases like this. This is a very delicate area - tipping from one side to the other in terms of press freedom. Would you want to deny the press the freedom to exercise that investigative ability?

Hardigan: You can't turn the clock back. Everybody uses that phrase "the public's right to know." In the year of our Lord 1994, the phrase is "the public wants to know." Everybody wants to know everything there is to know about everybody's business, except we don't want anybody to know about ours. That's how we live our life. And the media plays the largest share in that.

Why we think that somehow we're going to carve out different rules governing the conduct of the media prior to a trial in a criminal case is beyond my comprehension. The very best you can do is to see if you can come up with some guidelines or rules, if you will, that a judge can enforce when the pretrial publicitiy has been so prejudicial - I don't know how you measure that - as to affect the fairness of a trial. That's the very best you're going to do in this country. You can't turn the clock back to the year before they wrote the Bill of Rights. You simply can't. To try to say that you're going to put a muzzle on the press is ludicrous. It isn't going to happen. It's a business for them. And somebody's going to break that story first. And if somebody in this town breaks it first, if it isn't Channel 4, they're going to be second. And the print media's going to be there. Accept it. Its absolutely a way of life. What lawyers and judges have to do in a courtroom is try to figure out how we minimize the damage and how in the world we select 12 people who are going to render a fair and just verdict.

?: Nobody's talking about muzzling the press. We're talking about a voluntary agreement between the press and the Bar and the judiciary, with assistance from the police, that existed in this country for how long?

Gillmor: The press has already determined to muzzle themselves. They don't print the names of victims. Why not?

Lowe: We don't print the names of certain victims: sexual assaults, juveniles, in most cases.

Attorney: Why don't you print the name of sexual assault - pardon me, witnesses, not victims. They ain't victims until there's a conviction.

?: Yes, both the defendant and the victim are innocent.

Lowe: I think there was always a feeling that this is a rather unique type of crime where there might be people out there reading the name who would be likely to do something to this person as opposed - I really do think that sexual predators are somewhat different from most other offenders in that regard. I don't think printing the name of a woman in a robbery in a convenience store is likely to lead to her being robbed again and perhaps the other is not likely to lead to anything, but I believe that was the rationale behind it.

?: That's exactly why the whole idea of guidelines is so preposterous. The effort of the media, until recently, was to protect the good name of the victim/witness. When members of the media decide, as in the William Kennedy Smith case, to identify the victim/witness, there is weeping and gnashing of teeth, a great deal from the defense bar. It all depends on who's ox is next up for goring. And the idea that somehow we can fashion voluntary guidelines that will satisfy liberal judges and conservative judges, prosecutors and defense council, victims rights groups and any other group.

Mothers Against Drunk Driving, in the case where the reporters found out about six prior DWI convictions. I'm sure if that group had been around at that time they would have been absolutely insistent that that information be published. And the point is, that any time the media tries to set a guidelines about "This we will publish, this we will not," somebody's ox is getting gored and someone is going to be yelling about it.

The guidelines, it seems to me, are inappropriate. The idea is to set the standard which is a fair trial for the defendant, turn to the defendant and say "Show that there's a substantial probability that your right to a fair trial is going to be violated," turn to the experts and say put up or shut up with your 20 years of talking to jurors and give us some facts and prove it. but don't come to the media and say "Agree here and not there," but now we'll get angry if you don't publish this and somebody else will be angry if you don't publish that.

Lowe: I think there's too much clubiness already. I think the attorneys - defense and prosecutors - are close... the judges. They lunch together. I think we don't need to get any closer to them than they already are to each other.

Moderator: Just one second. I want to let people know that you're going to speak next. We're going to open it up for comments and questions and interact with this panel. But Susan, you've been studying the debate.

McPherson: I just have to say one thing. It is really important for people to stop here and remember that Mr. Jones isn't going to have any trial that's going to allow him the latitude to have a hearing on whether or not he's entitled to the kind of conditions that would, in fact, elicit an accurate measure of whether those jurors are biased. Mr. Jones is going to have a public defender that he may have an opportunity to meet with briefly beforehand. The public defender is not going to be speaking to the press at all. The public defender doesn't have time to have lunch. The public defender is going to go into trial and do the best that he can and we're all going to try to decide that day how much justice we can afford for this guy, because we have a lot of things to do on the calendar. So the judge who says "We don't have time for an extensive ordeal" is not saying that because he's a bad judge, he's saying that because he's balancing the rights of many many other individuals whose cases are also waiting.

So when we look at this problem and we only look at it through the prism of the high publicity case, I think we're really making a mistake because what really happens is Mr. Jones has two articles in the paper about him before he goes to trial. One of them says he has a prior record, and it's very likely that a juror could go through jury selection and have read that and know that and end up on the jury with nobody ever having an opportunity to find out about it, until he shares that with other jurors in deliberations.

And that's where I see that you really have the most serious problem. Because all of the remedies that are available to deal with prejudicial publicity are expensive and the public has a right to know that too, I think.

?: You're right. The solution is not to have all of us at the table sit down and write some rules for this. It seems to me that - I'm uncomfortable with government sitting down with the journalists and saying "Now we'll figure out these rules." If journalists want to go off in that corner of the room and say "As a matter of my ethics, we're not going to print the name of the Washington football team." that's there decision. They can go off and do that. But I don't think we ought to have the government, particularly judges, sitting down, even in an informal way, trying to come up with the rules. But I think that what you identify is true.

It's another thing for the government to sit down with public prosecutors and the police... the Board or Professional Responsibility. But until the Minnesoata Peace and Police Officers Board says "I'm going to yank a chief of police's license because they got up and just gave all this stuff to the media, not just the criminal record, but we suspected him becase we arrested him 14 times and never got him charged," then I think you're beginning to look at some solutions that are practical, and also which seems to me don't threaten... fair trial, the free press is part of it. I mean, the fact of the matter is if you look at some other countries, the press' ability to cover how government is destory free trial is real important too.

Moderator: Susan, you talked about the debate among attorneys as to whether they want ignorant or highly informed jurors. Do you want to share that with people?

McPherson: I think most attorneys that I have worked with want well-informed jurors. There is no such thing as a blank slate juror in the first place. They all come in with their own opinions and they may or may not be shaped by what they read in the news media. They may get their opinions from just conversation. but I think across the board most of the people I work with, the average is, they want jurors who are well-informed and thoughtful. Who do pay attention to news media. Most of the cases, particularly that we get involved in are cases in which you have to - they are more high publicity cases frequently - and they are cases that require the jurors to try to step back and get away from the effects of that publicity and weight the evidence as carefully as they can. And I think most lawyers feel that a well educated juror is a little safer bet in their ability to do that.

Torres: We've been having this discussion about the media restraining itself and how it affects a defendant's right. In my opinion, there is not similar (interest?) between the interest of the media and a defendant's right to a fair trial. they're not consistent. Their interests don't coincide with each other, that isn't going to change. We're not going to put the genie back in the bottle. I think what we're going to have to do is adapt... the future is going to be that the media will go and and talk to if not the prosecution, if not law enforcement, certainly to the friends of the victims and their neighbors and friends and everyone else and they will get the story on who this person is real quick. And while I don't like to think that this is where we're headed, I think defense attorneys as well as prosecutors are going to have to adapt to that. In the Guevara case I think it was clear when I first came into that particular case that there was already that ambiance of what this trial was about. But I think one of the things that I agree with Virginia on what that once we get into that courtroom the good attorneys will be able to persuade the jury that they should vote in their fashion. And I think that doesn't change.

Lowe: I think there is a real dynamic that goes on in the courtroom beyond what's been in the press and when you sit through a trial it's very different and those dynamics are what lead to the verdict ultimately. I don't know how many trials I've sat through going in from what I've heard thinking there's a pretty good chance somebodys guilty and coming through at the end and half the media think there's going to be an acquittal. Usually wrong, but you do hear all these sides and the judge does generally run it in an orderly fashion.

Torres: See, and I don't disagree with that because I think that comes with the territory. During the case, of course, I turn on the television and I can wonder which trial were they watching. So when this fellow was acquitted it was not a surprise to the defense team, but it was a surprise obviously to everyone else because of the media coverage. My bigger concern is when the media, which I believe has a symbiotic relationship with the prosecution, joins in this public forum of "This man is guilty and the jury has to come forward and tell us why they voted in this fashion." "Mr. Torres, can you sleep at night?" in editorials. That's what concerns me. When the media takes on that public policy image. That's what concerns me.

Rybin: You know, I've been in this business 27 years and I'm real bothered by this symbiotic relationship because I guess I've missed it, if it is there. There are a lot of police officers who have refused to give me information about plenty of things through the years, and prosecutors. I have to admit, defense attorneys tend to be a little less likely to talk and we do try to get their side, but I just... a lot of the stuff we publish actually comes right off the court records.

Torres: I think any defense attorney who's ever tried a case with me - Joe, Ron, Judge Hardigan, anyone who's ever tried a case and recalls being in there cross-examining a witness and tearing that witness up and picking up the paper the next morning and seeing it was never even mentioned. However, they talk about what great testimony that witness gave for the prosecution. That happens over and over and over and that's part of that symbiotic relationship.

Rybin: I think that tends to happen on both sides, though.

Joe: And that depends on the reporter. You can cover a case, both the Minneapolis and St. Paul papers can cover a case, and you can watch the story through the eyes of two different reporters and think you're reading about a different trial. It is not necessarily a symbiotic relationship. It's the way people view things differently. I had a trial where someone wrote a book about the trial because the reports were diametrically different in terms of their emphasis and I was wondering which trial I was in. One of them turned out to be right - happened to be the side that went along with my view of the evidence.

Moderator: Any of you who have comments or questions, please come up to the microphone. Brad, have you ever had a case that you worked on that was blown because of pretrial prejudicial publicity? Because the media misbehaved? That you didn't contribute to that?

Johnson: The Glaze case was really tough back in '86-'87 era.... (he killed) three Indian women. He was eventually convicted on it. We tracked him down to Albuquerque and we got on the plane and tried to keep it quiet that we were even going and we get on the plane and there's Channel 11 with their camera on the same plane. Get there and Channel 4's waiting at the end of the tarmac for us. They showed a lot of things during that trial and the problem we had with it was we ended up with an eyewitness who reluctantly came forward later on. And this guy's face had been shown all over the TV and in the newspapers. Channel 11 got into the jail down in Texas and actually had an interview with him talking about our case. He talked to them more than he did us actually. But we ended up having to go back and get copies of tapes, copies of newspapers and show what kind of photographs were in the paper. It really affected that investigation.

Kennedy: I've been a lawyer 34 years and I began as a prosecutor. The first reporter I got to know very well who shall remain nameless.. but I was working in the criminal division in Walter Mondale's office when he was Attorney General and we used to work Saturday mornings. And I came back from the men's room to find this reporter on all fours going through my wastebasket. Had a grand jury out on a gambling case. Now, I think I know most of the reporters in this state who have covered the crime or the court judiciary beat. They're all taught one thing - get your sources in the police department and prosecution first. There's nothing wrong with that, and why people are kind of ducking for cover when defense lawyers like Torres and the rest of them say that there's nothing wrong with that. That's where you're going to get your information! It goes with the territory.

And for reporters to say that "Nah, it doesn't happen," come on folks - you know. For 34 years, I've watched it. I've been a part of it, sometimes as a prosecutor, part of it as a defense lawyer. Good news reporters - print or broadcast - develop their sources in the police department first. And the good reporters will go to their graves with their lips sealed about who those sources are. And there's nothing wrong with that. That's how you get the news. We have to live with that, or live with the consequences. But the truth of the matter is, it hasn't been that harmful over the years.

Maureen Reeder: I just wanted you to explore a little further the role of videotape and photography in the courtroom. I'm asking two different directions here - one is the role as evidence, videotape and photography taken by journalists. And the other question has to do with broadcasting trials, because we don't do that here in Minnesota routinely. I'd be curious what you think about the value of that. Just a question about using the journalists videotape as evidence in trials and the value of that and whether it ought to be done routinely. It's always a battle.

Kennedy: There was the case where the reporter from Channel 9 was assaulted along with a couple of our homicide detectives and we got the footage of that and that was used in the trial.

Lowe: We used videotape a few weeks ago, the wrestler who was accused of beating up someone in the Skyway theater while some officers were upstairs sleepng. The videotape was used and the person ultimately pleaded guilty. That was stuff on the air. My problem, and all of our problem in news media, is using our out-takes, the recorded stuff that doesn't get on the air. For us it's like our notes. The camera might still be rolling, I could be interviewing Brad Johnson. He may be talking off the record, saying things when we're doing our cut-away's and I have that as part of the record. If that tape were subpeonaed some things might get on there that he had not agreed to say publicly and I think would be very much an invasion of our relationship to release that information.

Kennedy: But that's the price I think the media's going to have to pay for being free and be allowed to print whatever you want to print prior to trial and during the course of the trial. It's like the issues of cameras in the courtroom. I personally am not against it, although Paul and I debate and I take the other side on the issue. That tape is going to become part of that record. That tape is going to become part of that record, whether the media likes it or not. And artful lawyers, like Tony and Joe and Ron, are going to be able to tie that public record into some out-takes that you took prior to the trial that you're now televising and make that available. That's the price the media's going to have to pay. It's a pretty small price to pay, frankly.

Joe: You know there's some reverse psychology that works with all the pretrial publicity. We Americans like to back the underdog, and if we think that the press is picking on them too much there is a shift in opinion and I think that frequently results in acquittals in some of these highly publicized cases. Because the defendant comes into court as the perceived underdog and I think that's what happened in the Guevara case. Everybody had the guy salted away before the trial began. And those are factors, too, that we as defense lawyers shouldn't overlook, because I think sometimes bad publicity can help us. There's an old saying and we're taught it in law school, "If you've got bad evidence, you bring it out first." And if the media's brought it out for us, the jury says, "So, what's new. We've already heard about that." They have softened the blow. They've taken the sting out of the evidence. And the defense in the opening statement will reinforce that.

?: With respect to cameras in the courtroom, I don't think that affects a fair trial at all. It seems to me I'd much rather have a juror see what they saw in the courtroom than to have some talking head interpret what they saw. So I don't think that issue is related at all. In fact, my suspicion is that we would all be better off if you would simply televise what happened in the courtroom, so if the juror sees something during the trial, they're only going to see what they already saw.

Reeder: The only thing that I think you run into, and it's happened much more in California than here, is that the request for cameras in the courtroom has sometimes been coupled with the desire to have an anonymous jury and I think that sends a message to the jurors that is really detrimental.

?: If you look at the Minnesota rules, "Just don't put the camera on the jurors," and let the camera go in there and film everybody else. I don't see any particular need for the media to show the reaction of jurors on the TV.

Woman from Audience: To the Bernstein and Woodward reporters and out of memory of Paul Presley who was in the ceiling during the trial, anyhow, my question was: Do you believe jurors are protected or threatened by the cameras in the courtroom?

McPherson: I think there certainly have been some instances in which judges have been quite certain that the jurors felt threatened and that's why they decided to have an anonymous jury.

?: The technology now, the cameras that they have, because I've had cameras in the courtroom. Nobody needs to know there's a camera in the courtroom given today's technology. So that's kind of an argument that's using kind of Edsel's to say that you shouldn't drive anymore.

McPherson: Yea, I'm not suggesting that you shouldn't. I'm just saying that's a situation where people have to agree to that rule, that they're not going to suddenly say - let me give you an example: in the Simpson case, our organization, and I think every other trial consulting firm in the country, has been contacted by major news organizations, wanting us to go sit through and report for them on the jury selection process because the cameras aren't going to be in the courtroom. And it's that kind of dynamic thing.

Rogosheske: Character artists that are sitting in the front row are certainly kind of inhibiting. They're sitting there scribbling with a big pad that... I'd rather have an unobtrusive camera...

Kennedy: Now wait a minute Judge, there's nothing unobtrusive about a camera. There's nothing unobtrusive about that camera lense. Whether you're talking about a video camera or a still camera. And the problem is not having the camera there, the problem is what it shows and the invasion of a juror's privacy or someone else's privacy in a courtroom. No one likes to see themselves in the evening news going like this.. you know. We all have those kind of little gestures. and that's the evil of having the cameras there.

Moderator: In the O.J. Simpson preliminary hearing the camera wandered off the witness box and got a close-up of Simpson's emotional reactions to what was being said. I wonder why California allows that.

Kennedy: Now that was a violation of the judge's rule, I think. The judge had ordered that the mikes and the cameras not be right at that specific part of the table. So I think whoever that camera person was, was in direct violation of the judge's order.

Gillmor: The ultimate step in this whole process that we're talking about and when we get into camera we're changing the topic a little bit, but not completely. The ultimate step is the editor deciding whether or not to publish. And I would hope that, as is usually the case, the medium whatever it is, would have all the information. We always have more information than we can ever use. We decide every day a thousand times what to publish and what not to publish.

No more deals with government agencies. I think now, in retrospect, and I have for a long time, that the guidelines were a mistake because here we were with a public that really doesn't trust us anyway, making deals with law enforcement officers, judges and lawyers - we shouldn't have been doing that. They're all potential governmental agencies or agents. It boils down to a self-regulatory system. And I don't mean a system where journalistic organizations lay down rules, because most news people don't belong to these organizations. It's going to happen in the individual newsroom, to decide what to do and what not to do, in these very very difficult situations.

Hannah: I agree wholeheartedly. A restrained press isn't a free press. Who gets to press the button or hold the gun with the finger on the trigger of free press and ultimately the expression of free rights? What we're really saying: without a doubt, paramount, we do not want the government involved in deciding what we say, what we don't say, what we shoot, what we don't shoot, when we put this on the air, when we don't. Because the government is the government and as soon as it has a chance to say it once it will say it again and it will say it again and we won't be here again. That's just a standard.

I think the idea of the guidelines - it was a great option at that time and that was to put judges and lawyers and journalists together in a room to describe and discuss some of these issues, let the journalists deal with them, and then on a newsroom by newsroom basis make up their own minds, recognizing that it's not the journalist's responsibility to give the defendant a fair trial. That's his lawyers responsibility to argue and advocate and the judges responsibility to see to it that it happens. Journalists are certainly people with ethical qualities and they try to exercise those. But to have them imposed on us by - God forbid - the government, or what's worse, a bunch of lawyers, would be horrible.

Lowe: I think if lawyers and judges came to us and we had this give and take and we had specific examples... if you sat down and laid out some things to me, laid them out to my boss, we'd make changes. We've changed things in victims rights. Last year we stopped showing bodies - after someone's buried you won't see a body on our news. And it's because I was interviewing Mrs. Hoff, the police officer's wife, and she said that was the one thing that bothered her - to see the body over and over again. I went back and told my boss and we don't do it anymore. I think there's things like that, if you bring them to our attention - without threatening rules. I would like to hear more tonight of specifics because I will go back and make the case.

Male: The very same trial you mentioned - the Hoff trial - I think there were four defendants. Every time one was convicted they showed the other three - and they're next. Right on the news there with their faces plastered all over the place. They're history is what you should have said when you did that.

Moderator: How would this notion of getting journalists back together to talk about their own sense of what's ethical and how to behave fly in your newsrooms?

Diaz: Well, we all have our own views. The part of this discussion that I find really offensive is the notion that as a reporter I'm supposed to write for the jury and not for the public. I'm writing for the general public, I'm not writing for the 12 members of the jury, or the two alternates or what have you. And I think it's arrogant for people in the legal profession to assume that we're supposed to keep our readers in the dark about issues surrounding a trial because there are certain legal niceties or Constitutional requirements that limit what you can put before the jury. What you can put before the jurors, what restricts you, that does not restrict me as a writer to tell the public in general what's going on about the totality of the facts of the case and after all.

I think the public has the right to form it's own opinion about Guevara or anybody else they want to - it's the court of public opinion, it's not the courtroom and those are two different realms. and I think it's arrogant for people in the legal profession to assume that their realm extends to the rest of the kindgom. The fact is, how's the public supposed to form an intelligent notion about whether justice was done or not if they don't have all the facts of the case, if they don't know the totality of the circumstances, if they don't know about the defendant's past record, if they don't know about the confession, or if they don't know that certain parts of evidence were ruled inadmissible because of some really bizarre technicality. I think the public has a right to know these things and you can just say "Well, you know, I'm just a dupe of a capitalist minion or something," but, hey, we all do it. We do it for a buck, you know. So I'm doing my job, you're doing your job, and it's my busines what I put before the public and it's your business what you put before the jury. But those are two separate questions.

Kennedy: I don't know whether you're representative of the press, but it bothered me when you said something was done because of a technicality. I fault the press when they call the Bill of Rights or rules of suppression (of evidence) or a Supreme Court case decision a technicality. Is the First Amendment a technicality? If a case is dismissed because of illegal search and seizure, that's not a technicality.

Moderator: We aren't going to solve this problem here tonight. The question is, as the lawyers deal with their own potential misconduct, what are the journalists prepared to do in thinking about, on a case-by-case basis, the most ethical decision that they can bring about and acting on it? If we're thinking about nothing else besides how we can all clean up our houses without getting the government involved, then we've accomplished something.