| Chapter
7
Covering the
Courts
By Maurice
Possley
Judicial Selection
State court judges usually are elected by voters. Judicial elections are frequently
the ignored stepsister of election coverage in the media. Yet, the selection
of judges is one of the most important matters in the voting booth. There are
stories to be mined in this area. Information about judges can be obtained
in conflict of interest statements or in applications for judgeships that determined
by means other than the ballot. In Cook County, Illinois, for example, associate
judges are selected by more senior judges. As part of the application process,
applicants are required to disclose whether their conduct has ever been the
subject of judicial comment, whether positive or adverse. Several years ago,
an examination of these applications turned up nearly 20 prosecutors who had
been cited for prosecutorial misconduct in appellate court rulings, but who
had reported on their applications that their conduct had never been the subject
of comment.
Of course, federal judges are appointed for life and, typically,
they are the least accessible of all judges. Candidates for federal
district judges are usually selected by the ranking senator or
member of Congress of the particular state. The candidate is referred
to the President who makes the formal nomination. The Senate Judiciary
Committee typically conducts confirmation hearings for each nominee.
Federal judges in each district select the magistrates.
In the federal courts, most judges have no interest in developing
any relationship with reporters, but some do so out of an interest
in providing reporters access as well as the best opportunity to
provide accurate information. The key is to try to develop a professional
relationship with federal judges. Let them know that you are simply
trying to make sure that your articles are correct. Another way
to develop relationships with judges is to ask them, “What
should I be writing about?” Judges also can be the source
of information about goings on in the courthouse in general.
Judges are subject to discipline, not only because they are judges,
but because they are lawyers as well. Check with attorney disciplinary
agencies for background on judges when they were lawyers. Each
state or jurisdiction typically has an agency that is responsible
for disciplining judges. These agencies are usually operated in
the strictest of secrecy. However, a reporter should become familiar
with this agency. The fact that few judges are disciplined despite
at times egregious conduct can be a story as well.
Appeals
Familiarize yourself with the appellate courts to best be able to obtain decisions.
Many appeals courts opinions are available electronically, but typically
not on the day of decision. Many courts typically release opinions late in
the day, but at a consistently regular time. Some courts also provide a list
of important cases in which decisions are to be issued a day in advance.
Check the docket of cases up for argument. You may find a case
that you have lost track of and that has significant issues. You
may find a party whose mere presence is newsworthy. Keeping an
eye on the appellate courts to identify legal issues of interest
is difficult unless you are following specific cases. By check
the schedule of oral arguments—often posted several days
in advance—you can scan the cases and possibly spot matters
of interest.
Develop sources that can help you understand a decision—the
law and the rationale—to better assess its impact. Appeals
judges rarely, if ever, discuss their decisions. Attorneys for
the parties involved are good sources, but as always, they are
advocates with an agenda. Law professors are a good source, particularly
because they often extremely current on the areas of the law that
they teach.
If you are following the appellate briefing process of a case,
you must learn the rules of the appellate court as they pertain
to public access to briefs filed prior to the arguments in the
case.
Appellate case records are frequently a good source of transcripts
from trials. While the case is on appeal and for some period of
time after the decision is issued, the transcripts of lower court
proceedings are housed in the appellate court files.
Be aware of the difference between published and “unpublished” opinions.
All rulings are printed and released. A published opinion is one
that is considered to have precedential value and can be cited
as an authority in court. An “unpublished” opinion
is not considered to have precedential value and cannot be cited
in court. These “unpublished” opinions are also not
entered into legal databases, such as Lexis, or published in law
books. This is significant when doing research about a judge’s
reversal rate, for example, because in recent years, the number
of unpublished opinions has risen dramatically. The state of Washington,
for example, has reported that as many as 70 percent of its appellate
opinions are unpublished.
Access
Be aware of the push and pull between the First Amendment rights of a free
press and the Sixth Amendment rights to a fair trial. Work from the position
that court proceedings are presumed to be open to the public and the press
unless a judge makes a specific finding—with articulated reasons—for
closing any portion of a hearing or trial. Be prepared to stand up, respectfully
approach the bench and make your objection to the closing of a proceeding
and ask for a recess to consult with an editor about legal representation
in seeking to oppose the closure.
In the early decades of the 20th century, the traditional courtroom
journalistic arsenal of pens, pencils and paper expanded with the
development of still cameras, movie cameras and radio microphones.
But in the wake of the extensive media coverage of the trial of
Bruno Hauptmann for the kidnapping and murder of Charles Lindbergh’s
baby, restrictions were implemented. The American Bar Association
adopted Canon 35 in 1937 barring courtroom cameras, a prohibition
that lasted nearly a half-century. Cameras are increasingly allowed
in state courtrooms in a wide variety of jurisdictions, though
not in federal courts. Many, such as California, Georgia, Florida,
and Wisconsin, allow cameras, both electronic and still, into courts
at the trial and appellate levels in criminal and civil cases.
Others, such as Illinois, only permit cameras in the courtroom
at the appellate level. Each jurisdiction has rules for seeking
permission to bring cameras into the courtroom and the parameters,
i.e. one pool camera; no filming of jurors.
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