Right to a fair [media account of your] trial?

Tulsa criminal defense attorney Glen R. Graham posted a lengthy run-down on “protecting the rights to a fair trial against unfair media stories in Oklahoma.” He cites the Code of Professional Journalism at the Society of Professional Journalists, and notes that the aforesaid “Code” advises journalists to: (1) seek truth and report it, (2) minimize harm, (3) act independently and (4) be accountable.

But the media can certainly do harm to criminal defendants by tainting the jury pool – not that they care.

Glen comments that a good criminal attorney must seek a protective order from the court in high-profile cases to prevent the prosecutor and staff, as well as law enforcement, from releasing harmful facts which either taint the jury pool, or taint the jury itself during a prolonged trial.

While trying a multi-week and high-profile jury trial, I found myself reading the papers and watching the local TV news everyday, always getting angry at their unfair portrayal of the days’ events of the trial. It was as if they were pandering to a tough-on-crime audience. My biggest problem with it was that I had a sinking feeling that the jurors were doing the same everyday. Obviously they were instructed not to read or watch any media accounts of the trial, but there was nothing stopping them from doing so. And I couldn’t in my own mind, believe that I wouldn’t do the same had I been a juror. There is some attraction to forbidden fruit, and none of us would actually believe that we could be tainted by any such media account of what happened – especially when we experienced it ourselves.

But, even when I read or heard the media accounts, the case sounded un-winnable. The defendant sounded obviously guilty – and a guilty verdict was all but assured. My wife was in the gallery watching the testimony everyday, and when she read the newspaper, she would also get angry, stating – “that’s not true,” or “yeah, but they took the quote out of context,” or “they left out the most important part.” The fact is, that such media accounts do not accurately portray what happened at trial. And even if you were there, by reading or hearing such accounts, it tends to sway the facts in your mind towards the prosecutions case.

In that case, when the verdict came back not guilty of 1st degree murder – but guilty of lesser included 2nd degree murder, the headlines only said “guilty of murder” with no mention of the acquittal of first degree murder – a partial exoneration from what the prosecution alleged happened, and which means the difference between life in prison and possible parole in ten years (in West Virginia).

But in reality, there is not much you can do about it but complain and hope for the best. A “gag” order may help some with pretrial disclosures tainting the jury pool (with respect to prosecutors and law enforcement leaking), and indeed the Caylee Anthony case in Florida emphasizes that possibility, but in most run-of-the-mill cases, most information is eventually “public knowledge” and thus accessible to reporters. And they don’t need prosecutors or law enforcement to assist them in shining the worst possible light onto the defendant.

– John H. Bryan, West Virginia Attorney

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