| Chapter
7
Covering the
Courts
By Maurice
Possley
Trials
There are two kinds of trials—regular, run-of-the mill cases and heaters.
The latter can be a locally significant case—a cop-killing—or a nationally
significant matter, such as the trial of Oklahoma City bomber Timothy McVeigh.
Outside of matters such as access, jury secrecy, security, and the pressure of
competition, these high-profile trials are no different (and in some cases far
less interesting) that the everyday murder cases that unfold weekly in courthouses
across the country.
Covering a trial is much like covering a sporting event. Your
work begins before the event itself with the reading of the case
file. Know the players—from the lawyers for both sides to
the witnesses expected to testify. Do background checks on all
parties involved for prior news stories, past arrests, and past
and current lawsuits. You are not limited to just what you hear
in the courtroom. At the same time, be cognizant about what the
jury or judge hears. Many readers have gotten the wrong impression
about a trial because the reporter failed to clearly set out what
is evidence and what is information presented in court but outside
the presence of the jury.
Listen to jury selection. Not only do you learn a little about
the individuals who are going to sit in judgment of their fellow
man or decide who gets or doesn’t get the money, but also
you are more easily able to locate them after the verdict. Be sensitive
to jurors’ privacy. They often are asked reveal highly personal
information, such as whether they have been victims of a crime,
particularly if the crime is a sexual assault. Generally, the identities
of jurors are not published or aired unless the jurors consent.
An exception is when someone of note is selected—as was Oprah
Winfrey in 2004 in Chicago. Do not attempt to speak during jurors
during a trial. After a trial, jurors are fair game for reporters
and can provide great insight into a controversial decision. Reporters
also can learn the lawyers’ strategy in a case by listening
to the questions they ask jurors.
Pay close attention to opening statements; they are what the lawyers
believe the evidence will show. It is your on-the-record preview
of the case. Keep your notes close by for a post-verdict analysis
story on how one side failed or succeeded in bringing in the case
they originally sought to present.
Listen to cross-examination. Many a reporter
has been surprised by a verdict because they bailed out of the
courtroom during cross-examination. Often stultifying, sometimes
exhilarating, cross-examination, it has been said, is the “great
engine of truth.” A reporter who not only listens to cross-examination,
but also manages to deftly present it to readers and listeners
gains great credibility with judges and lawyers. And ultimately,
the knowledge of the case gained by listening to cross-examination
will result in more informed and balanced post-trial analysis reports.
Seek to obtain transcripts of sidebars in significant cases. These
private conferences among the judge and the lawyers in a case can
provide great insight on the behind the scenes workings of a trial.
Seek permission to obtain copies of exhibits soon after they are
entered into evidence. Once in evidence, exhibits are public documents—they
are just as public as spoken testimony.
Listen to the legal arguments over matters of evidence. A case
may turn on whether particular evidence is allowed or disallowed.
Be prepared to report the significance of such a decision and the
law that the judge relied upon in making that decision.
Avoid at all costs using the expression: “a legal technicality.” These
matters of law that reporters so frequently toss off as legal technicalities
are, in fact, what most lawyers and judges call our “constitutional
rights.” A judge is not relying on a “legal technicality” to
throw a confession to a crime out of court because a police officer
failed to have probable cause to arrest the suspect. The public’s
knowledge of the law as well as its perceptions and misperceptions
of the judges, lawyers and the workings of the legal system are
shaped largely by the media. It is critical for reporters to avoid
shorthand or shortcuts.
Make every day of a trial tell a story that relates to the overall
issues, but is a single unit of a chain. Give it a beginning, middle
and end. Determining this on some days may be more difficult than
on others. In the end, though, remember that you are not a court
stenographer. Your job is not to chronologically report the day’s
testimony and events. Ultimately, your job is to illuminate the
issues at hand.
Judges
The judge reigns supreme in the courtroom and in the courthouse. The chief
judge is probably the best source and resource that a reporter can have.
A reporter covering the courts must be able to deal with judges and if there
is a shaky relationship with the chief judge, that likely will trickle down
through the ranks. No two judges are alike—their personalities range
from the gregarious to the aloof, from the humble to the arrogant. The best
court reporters must develop a manner and mien that will fit these various
personalities. Some judges demand great deference. Others prefer to be called
by first name. Some judges will not deign to even speak to a reporter. Others
will break bread or have cocktails with reporters. Traditionally, the judiciary
has been the most secretive of the three branches of the federal government.
Each state has a canon of judicial conduct that governs judicial
speech. The federal judiciary has a similar code of judicial conduct.
These canons are virtually the same: Judges are required to avoid
public comment on the merits of a pending or impending action.
There are exceptions that allow judges to make public comments
to explain the legal process and for the purposes of legal education.
In 2002, the U.S. Supreme Court, in a case entitled Republican
Party of Minnesota v. White, ruled that candidates for state
judgeships have a constitutional right to discuss publicly legal
issues they may be obliged to rule upon. Judges who must stand
for election generally are more approachable, particularly if they
intend to run for re-election.
Develop ground rules for speaking with judges. In a Sept. 30,
2002 article in Legal Times, U.S. District Judge Thomas
Penfield Jackson of Washington, D.C., who presided over the Microsoft
antitrust case, urged that judges be given more latitude to speak
publicly without appearing biased. “Although some judges
will on occasion speak ‘off the record’ to members
of the press, many judges—perhaps most—believe that
the canon imposes a virtual code of omerta forbidding any public
commentary while a case remains unfinished in any respect, quite
possibly forever.”
So, while some judges are willing to comment publicly on legal
issues or even comment publicly on their rulings, most, as Judge
Jackson noted, shun speaking publicly about their decisions and
it is extremely rare for judges to comment on cases pending before
them. (Jackson was removed from the Microsoft case by the U.S.
Court of Appeals for the D.C. Circuit, in part because he had commented
to a reporter while the case was pending.) These individuals prefer
to let their rulings and statements in court be the official record
and most assume they have adequately explained themselves in court
or in their written rulings. But judges do read coverage of their
cases closely and they want to be interpreted accurately. Judges
will read and evaluate reporters accordingly. It is not uncommon
for judges to agree to speak on background to provide explanations
of their rulings or guidance if they believe they can trust the
reporter to keep the conversations private.
Establishing a relationship with a judge can help a reporter resolve
disputes with court aides, obtain quick access to documents, and
provide a better understanding of decisions when on deadline.
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