Oregon State Bar Bulletin — MAY 2004

Minding the Media
Media advice from judges, prosecutors and defense counsel
By Janine Robben

By summer 2002, the Portland-area media already had found their criminal Case of the Century in Ward Weaver, the self-proclaimed lead suspect in the disappearance of two Oregon City girls.

When Weaver was arrested for an alleged assault on his son’s teen-age girlfriend, a reporter was on her doorstep the next morning. And when police searched Weaver’s property for the missing girls’ remains, television stations gave the weekend-long proceeding non-stop coverage rivaling the assassination of President Kennedy.

But when Weaver began granting interviews from the Clackamas County Jail, where he is awaiting trial for the missing girls’ murders and other crimes, trial judge Robert Herndon stepped in. In November 2003, one day after Weaver’s second set of attorneys sought to withdraw, Herndon issued an order gagging anyone conceivably connected with the case, including Weaver himself.

Recently, that order — and other aspects of the sometimes-uneasy interface between journalism and jurisprudence — were the subject of a symposium on the media and the courts, sponsored by OSB’s Bar Press Broadcasters Council.

'This is an incredible roomful of power,' says long-time council member Judson Randall of the Oregon judges, attorneys, police officers and media representatives who participated in the Portland symposium on May 8. 'It’s extraordinary to me that they’re willing to listen to each other.'

Randall says he got the idea for the symposium after hearing about a particularly aggressive attempt by a TV reporter to interview one of Weaver’s original attorneys. 'I suggested facilitated discussions so we could all understand each other better,' says Randall, who is a retired Oregonian editor. 'It’s amazing what can happen when a bunch of people who ordinarily have conflicts get together and listen to each other.'

A similar symposium was held last spring in Portland: The council tentatively is planning a third for Eugene in 2005.

Topics for this year’s symposium included:

What happens when the constitutional guarantee of a free press comes in conflict with a criminal defendant’s constitutional right to trial by an impartial jury? How are trial judges, like Herndon, supposed to balance these competing interests?

Does it matter whether the media coverage seems geared more towards entertainment than news?

When police invite TV cameras along for an arrest and interrogation, can the defense attorney get access to all film shot? Or is his request trumped by Oregon’s media shield law, which bars disclosure of 'unpublished information?'

Randall says the media representatives who participate in the symposiums are discouraged from reporting on them. 'We want people to just be able to discuss stuff,' he says.

Nonetheless, some of the participants — and others who have dealt with the media-courts issue — agreed to talk to the Bulletin about their experiences. They also offered tips to their colleagues for handling high-profile cases.

The prosecutor’s view
Bernice Barnett was an experienced prosecutor — but a new district attorney — when the body of Christian Longo’s 4-year-old son Zachery was found in a Lincoln County slough in December 2001.

The tragic discovery, followed by that of the bodies of Longo’s wife and two other children, ignited a media firestorm.

'I’d absolutely never had a high-profile case, or at least not this high profile, and I hope it’s the last,' says Barnett, who had started as Lincoln County’s district attorney earlier that year.

Barnett says she coped with the media pressure by focusing on her goal of getting an error-free conviction.

'We had a really important job to do, and we had to stay focused,' she says. 'Any time I dealt with any public aspect of the case, I asked myself, ‘Will it help or hurt the prosecution, and does it fit the ethical aspects of the bar-press guidelines?’ ' (See 'Statement of Principles Governing Certain Lawyer-Press-Broadcaster Relationships' on page 11.) 'Then I acted accordingly.

'It was not our goal to have any publicity,' says Barnett. 'So when ‘America’s Most Wanted’ wanted me on, I didn’t go. They taped one of our very fine detectives instead. I got lots of calls from ‘Good Morning America,’ but I never went on, because it wouldn’t have helped our case. But when we were still looking for Mr. Longo (who was arrested in Mexico), I called the FBI and had them do an appearance (on ‘Good Morning America’), because that was helpful.'

Barnett, who saw Longo convicted of all counts and sentenced to death, says she talked to other district attorneys, and even a friend in public relations, before coming up with the following strategies:

Pull out your ethical guidelines on a regular basis.

Have only one spokesperson. Don’t let that person do any grandstanding to the press.

Set up a special phone line for the media to tell them what’s happening on the case in terms of procedure. 'For a while, when everybody was so frantic to know, we even did a daily press release before the media’s noon deadlines,' says Barnett. 'We tried to balance respect and courtesy to the press — who really were desperate to have some information to report — with doing our job.'

Have copies of key documents, such as the indictment, available for the press as soon as they can be released.

Barnett says she’s aware the press has 'some frustrations' of its own, such as the Lane County Courthouse’s ban on cameras and tape recorders. 'And we prosecutors all have our own personalities,' she says. 'Some of us are more inclined to talk to the press than others.'

A district attorney’s view
If any district attorney in Oregon is comfortable with the press, it’s Clatsop County’s Joshua Marquis.

'I get teased about that a lot,' says Marquis. 'But an elected official needs to be accountable.'

Marquis’ view of the media, and how it’s changed, recently appeared in the Los Angeles Times. 'It’s what I call the ‘corruption of celebrity’ — Michael Jackson, Laci Peterson — which we don’t really have in Oregon because we don’t have real celebrities,' says Marquis.

But Marquis, who has had several of his trials covered by television, says he hasn’t seen similarly abusive behavior by the press in Oregon.

'Reporters here are much more sophisticated (than in California),' says Marquis. 'Some of them really understand the nuances: They don’t get bamboozled.'

Marquis’ advice to other prosecutors who are facing high profile cases?

Be aware of the bar-press guidelines. 'They may just be ‘guidelines,’ but they should be like the Ten Commandments for the state,' says Marquis.

Don’t be afraid to explain court procedures to the press. 'Sometimes prosecutors are overly cautious about not even wanting to explain ‘What is a bail hearing?’ ‘What is the possible penalty?’' Marquis says.

Note that it’s 'rarely appropriate to make comments about anything other than court procedures. Never say, ‘We have DNA on this guy,’' says Marquis. 'I don’t know of any cases in Oregon where prosecutors have crossed the line,' he adds. 'And it’s very rare that Oregon defense attorneys try their cases on the courthouse steps. There are out-of-state lawyers who try that, but you simply don’t rise to the bait.'

Defense counsel’s view
Defense attorney Stephen Houze has, in recent years, become the closest thing Portland has to a 'celebrity attorney.' His clients have included Trail Blazers guard Damon Stoudamire and auto mogul Scott Thomason.

But Houze says that an attorney who represents celebrities 'can’t be a self-promoter or a huckster. I feel very strongly about that,' he says.

Houze says that in his experience, celebrity status can cut against a defendant, rather than in his or her favor.

'I think it (celebrity) can impact decision makers in the system,' he observes. 'Celebrity gives the case an artificial magnitude it otherwise doesn’t deserve. It’s a higher hurdle to get ordinary treatment. That’s not to say that it happens in every case, but it does happen.'

Houze, who has been a defense attorney for over 30 years, says he’s seen a change in how the media covers criminal cases.

'My first case that had — for its time — a very significant amount of media coverage was the Hockings murder case,' he says. He is referring to Colin Hockings, who was convicted, at a second trial, of bludgeoning four people to death with a hammer in 1974. 'Both TV and print were covering it. I remember one particular Sunday (newspaper) supplement that was almost New York tabloid-like. People were very surprised at the kind of coverage that case attracted.'

Since then, however, Houze says, 'I’ve observed that crime news coverage is a huge phenomenon in this country.'

Despite that, he says, he’s been pleasantly surprised by the relatively minimal impact media coverage seems to have on prospective jurors.

'The saturation of the media is not as great as we think,' he says. 'It’s not as bad as we think in terms of tainting the process. Which is good, because it’s very, very difficult to get a change of venue.'

Houze’s advice to other attorneys facing the kind of media attention he encounters regularly includes the following:

Speak with other attorneys who have had considerable experience dealing with the media. 'It’s not the kind of experience many lawyers have had,' Houze points out. 'It’s easy to make a mistake, either saying too much or too little. The classic ‘No comment’ may have a very deleterious effect on your case.'

Have a strategy. 'The media are waiting: They’re going to have to cover something,' he points out. 'So do something constructive within the bounds of ethics.'

Let the media know you’ll be available for comment at some point. 'It takes the pressure off the situation immediately,' says Houze. 'Say ‘No comment’ by my client, but I’ll have a comment later.'

The view from the bench
Perhaps no one has given more thought to the issue of the media and the courts than William Dressel, who served 22 years on the bench in Colorado before becoming president of the National Judicial College in Reno, Nev.

According to Dressel, the issue of balancing the press’ First Amendment rights with a criminal defendant’s Sixth Amendment rights has 'always been there.

'I would say it’s the media that’s becoming more savvy,' Dressel told the Bulletin. 'In the past, they wouldn’t question why a file was sealed or a hearing was held off the record. So judges need to be prepared.'

One judge who has been through the media wringer is Multnomah County’s Kimberly Frankel. Recently, she presided over the Ladon Stephens murder and sexual assault case, in which the state was seeking the death penalty. The trial began on Jan. 9 — during a major snowstorm — and ended on March 10 with the jury sentencing Stephens to life without the possibility of parole.

'It was an interesting experience,' says Frankel, who has been on the bench almost 27 years but had had only one previous case attract as much media attention.

According to Frankel, the press’ coverage of the case included 'one huge misstep:' A television station reporting that the teen-age murder victim’s and her parents’ personal opposition to the death penalty had been conveyed to the jury. In fact, the information had been elicited from the parents in an offer-of-proof hearing outside the jury’s presence.

'I about had a stroke,' says Frankel, who ruled the testimony inadmissible. Later, a juror who talked to the media despite Frankel’s admonition said the jury was aware of the broadcast but had not been affected by it.

Frankel says she also was unhappy to see a day’s proceedings reduced to several seconds of film, a practice that she believes contravenes the purpose of allowing cameras in the courtroom. UTCR 3.180.

'What was designed to allow the community to have access to a trial has become sound bites leading into a news program,' she says. 'And when you reduce serious, complicated events to sound bites, it could give the public an inaccurate impression of what’s happened.'

But Frankel says she also understands that reporters and camera people have frustrations of their own.

'They tell me there’s a huge disconnect with their managing and assignment editors,' she explains. 'They’re caught between me, advertising revenue needs and their own (the press’) power structure. They seem to be getting direction that is a little harmful to the process.'

Despite these concerns, Frankel says her experience with the media on the Stephens case was, 'all in all, pretty good.

'In the final analysis,' she says, 'general human goodwill kept us afloat.'

Frankel has a number of suggestions for other judges facing a media mega-trial:

Have the ‘big meeting’ before the trial to lay out the ground rules for the press. 'Basically, you have to treat them as an additional party in the lawsuit,' says Frankel. 'Have the lawyers and all the press, including the managing editors who chew on the haunches of the working press.' Then, she says, put the ground rules on the record.

Provide the press with copies of the relevant Uniform Trial Court Rules. Make sure they understand that jurors are not supposed to discuss their deliberations.

Be sensitive to press deadlines. If possible, delay announcing the verdict or important rulings until the press has had time to assemble so their reporting is based on firsthand information.

Discourage the press from calling your office to find out what happened if they missed part of the proceeding. 'They cannot play catch up through me or the staff,' says Frankel.

Remember that the trial is 'Job 1. As much as you want to make the courtroom a welcoming place for everyone, the media can’t be clacking around, going in and out, going outside the rules,' says Frankel. 'It is your courtroom, and you’re still the judge.'

Another view from the bench
Another longtime judge, Lincoln County’s Robert Huckleberry, who presided over Christian Longo’s trial, came to that case with several strengths: A style of building consensus, and the experience of presiding over the trial of former Clatsop County District Attorney Julie Leonhardt.

'I don’t think the court should ever fear the press,' says Huckleberry. 'What I learned from (the Longo case) was how willing they are to work within a set of rules, as long as they knew was the rules are.

'The overall cooperation I enjoyed from all reporters in the Longo case cannot be overstated,' he continues. 'Every time I asked something of the press — every time —I found, to a person, a willingness to meet me more than halfway.'

In fact, says Huckleberry, the media was 'very much appreciative' of the rules he set down.

'If you’re a reporter, you’re in competition with the other guy,' he explains. 'If somebody doesn’t create some restrictions, you’ll do what you have to do to get the story. I understand that. What I did was create a level playing field for reporters. And I would argue that when this challenging case had finally ended, we parted ways with both the press and court officials feeling and believing that the natural tension which periodically rears its head in the midst of cases with high public interest had been addressed head-on, and in such a way that both sides felt their interests had been adequately and fairly served.'

Huckleberry suggests:

Have a system for dealing with overflow crowds. 'The first day, we had people literally stepping over each other to get in the courtroom,' Huckleberry says of the Longo case. 'We had bench seating — how many people can crowd onto a bench? — TV cameras, and (jury) alternates who spilled out of the jury box. So what I did was call the fire marshal about the number of people allowed on the entire floor, asked the sheriff’s office to enforce the fire marshal’s order, and then issued that number of passes.'

Provide a place where reporters who can’t get into the courtroom can watch the proceedings via video and audio feed. 'That way, they can get the story without having to compete for that (courtroom) space,' he says.

Limit the number and timing of photographs that can be shot in the courtroom. 'A photographer can’t just pop up,' he says. 'It’s terribly distracting.'

Neither Frankel nor Huckleberry issued gag orders.

As for the gag order in the Weaver case, Herndon told the Bulletin he could not comment. But Portland attorney Jill Gelineau, who represents the Portland Tribune, says the media decided against challenging Herndon’s order. That decision was based on authority from the 9th Circuit, which she turned to after finding no Oregon case law on the subject.

'This is the situation in a nutshell,' she explains. 'There is a split of authority on this issue. The 6th Circuit doesn’t draw a distinction between an order gagging a defendant from speaking and one gagging the rights of the press to report. The 9th and the 2nd have a different view.'

In this circuit, a judge who proposes to restrain the press has to make a finding that that less-restrictive measures would not be sufficient to protect the accused’s right to trial by an impartial jury. But, Gelineau says, an order that restrains the parties — including, in the Weaver case, a talkative defendant — is a different matter.

'I checked the order, and it didn’t prohibit the press from reporting,' says Gelineau. 'It only prohibited Mr. Weaver (and others) from speaking. Mr. Weaver could have gone in and challenged it, but it was not a prior restraint on the press.'

Of course, many lawyers place a voluntary gag on public commentary, either because of a personal distaste for media coverage, or because of concern over ethics violations. According to ethics expert Peter Jarvis, though, the pre-trial publicity rule (DR 7-107) is widely misunderstood in Oregon and actually allows for more comment than many lawyers may think. 'The rule is invoked only if the attorney’s comments create a serious and imminent threat to the fact-finding process, and that requires a degree of immediacy that would only rarely arise.' He adds that the rule is rarely invoked, and 'that is unlikely to change, partly because Oregon lawyers are quite cautious, but also because frankly it’s a hard rule to violate.'

ONLINE EXCLUSIVE

Judge Herndon’s gag order, dated Nov. 6, 2003, reads:

'This matter comes on before the Court upon the Court’s own motion regarding contact of the parties, witnesses and attorneys with the public and media. It appearing to the Court that such contact may impair the ability of the parties to select a fair and impartial jury, and it appearing to the Court that such contact should be prohibited in order to avoid contamination of the jury pool, the Court herewith ORDERS as follows: Forthwith, Defendant, any witness, and all attorneys and investigators familiar with the above-captioned matter are prohibited from granting interviews with any member of the press, either written or video, and shall further be prohibited from disclosing to the press or public any of the facts or evidence regarding this matter, and shall further be prohibited from expressing to the media or public any opinion on the probable outcome of any portion of these proceedings.'

ABOUT THE AUTHOR
Janine Robben is a Portland writer and reporter. She has been a member of the Oregon State Bar since 1980.

© 2004 Janine Robben


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