Oregon State Bar Bulletin — JANUARY 2009


In the 1960s, a joint council of Oregon lawyers and print and broadcast reporters adopted a lofty set of guidelines to govern the point at which their work intersects.

Under these guidelines, it was "rarely appropriate" for lawyers to disclose — or reporters to report pre-trial — the fact that an accused person had confessed, let alone the contents of that confession.

Of course, that was before O.J. Simpson took police for a 60-mile, low-speed run, a run that millions of television viewers saw as a nonverbal confession made before their own eyes. Before TV shows like "To Catch A Predator" and magazines like People changed how traditional media cover crime and other law-related news, and the Internet and bloggers changed our ideas about who "the media" is.

As a result of these changes, the Oregon Bar Press Broadcasters Council has spent the last five years helping lawyers and the media understand each other’s needs and concerns. It also, in November, adopted a new set of guidelines that replaces "rarely appropriate" with a more-cooperative approach.

Whether these efforts will have any profound, long-term effect remains to be seen.

"A profession is people who do similar work and subscribe to a common understanding about how to do that work," says Oregon Supreme Court Justice W. Michael Gillette, who presided over the council’s off-the-record "Building the Culture of Dialogue" symposium this year. "But when a profession is endowed with the power of the Constitution — which the media is — it isn’t possible to make rules that are enforceable. The conversation we had (at the symposium) was fascinating. Frankly, such participation is the only thing that’s going to work."

Former long-term Oregonian legal-affairs reporter Ashbel "Tony" Green isn’t holding his breath.

"I liked the back and forth," says Green, who also took part in this year’s "dialogue." "But helpful? Lawyers expect the press to work by the same rules that bind them. But they operate in a certain system, and we’re not part of that system."

As for the new guidelines, Green says, "I’ve seen them. Honestly, I couldn’t tell you how they’re different from the ones we’ve already got."

Crime and More Crime
When O.J. Simpson was arrested in June 2004, crime — and crime coverage — already were hot-button topics.

In its issue published the month before Simpson’s arrest, Extra!, the magazine of the national media watch group FAIR, criticized a January 2004 story in U.S. News & World Report for its use of such language as "a scary orgy of violent crime" in reporting on "Violence in America."

In fact, said Extra!, "The most reliable research suggests… that there is no more violent crime today than there was 20 years ago. What there is more of — much more — is crime coverage."

In addition, Extra! noted that this coverage "has taken on a shrill tabloid tone, designed to provoke fear…"

Seven years later, the amount of crime coverage hadn’t changed: a survey of a computer sample of 100 American newspapers and their 37,000 total readers showed that police/crime news ranked third in the amount of space devoted to it, behind only politics/government and sports. It ranked second for stories run on the front page, behind only politics/government. The 2001 study, which was done by the Readership Institute of Chicago’s Media Management Center at Northwestern University, has not been updated.

If police and crime news are a major part of newspaper coverage, "Crime is even more predominant" on the broadcast side, according to Ted Gest, U.S. News & World Report’s former chief legal-affairs reporter and current president of the nonprofit organization Criminal Justice Journalists.

James Upshaw, a former print and broadcast reporter who has taught journalism at the University of Oregon for 16 years, agrees with Gest.

Current content analysis of TV news shows that the percentage devoted to crime coverage ranges from 7 or 8 percent to 15 percent, says Upshaw, "depending on the town, the competitive environment and what the station perceives as the town’s personality and the interests of its viewers."

"There’s a powerful kind of gut-level appeal that keeps crime in there substantially," Upshaw says.

That appeal only intensified after O.J. Simpson was charged with the murders of his wife Nicole Simpson and her friend Ronald Goldman in 1994.

"What I’ve seen since O.J. is that the traditional media has discovered the courts," says Gary Hengstler, a licensed lawyer, former editor of the ABA Journal and, since 2006, director of the Donald W. Reynolds National Center for Courts and the Media in Reno NV.

"Until O.J., the media covered cases like Sam Sheppard and William Kennedy Smith, but they were the exception," says Hengstler, referring to the physician/alleged wife-murderer who was tried in 1954 and again in 1966 and to the Kennedy nephew acquitted of rape in 1991. "Otherwise, the courts were pretty much left alone. But after O.J., they discovered they could have these talking heads. People complained about all the talking heads on O.J., but stations lost viewers if they didn’t talk about O.J. People just love the law, because where else can you get the human conflict?"

Harder Than it Looks
But O.J. didn’t just change the media. He also, says Hengstler, helped create Hengstler’s current job.

"In the wake of the O.J. Simpson trial, the National Judicial College [also located in Reno] and the Donald W. Reynolds Foundation got together and said, ‘Journalists, judges: nobody looked very good in this trial,’" says Hengstler. "So they jointly funded a national conference in 1996 that brought together virtually everybody who was anybody on the national trial scene. Out of that, everyone agreed that court/media conflicts were not limited to O.J. They were occurring in a small way every day."

In 2000, Hengstler was asked to help create and run a national center devoted to the interrelationship between the courts and the media. Since then, the center has sponsored a number of conferences for journalists and judges and other lawyers to help them understand each other’s work.

"Reporters’ biggest concern is access (to the courts)," says Hengstler. "Judges’ biggest concern is accuracy."

"A lot of judges gravitate to sinister motives: that reporters are out to get them," he continues. "But if you reversed the roles, and had that kind of criticism of judges, the judges would recoil in anger at the suggestion that they purposely skewed cases. I don’t know why they jump to that conclusion re: reporters. When we have conferences here, we do role reversal. More than one judge (playing reporter) has said, ‘This is harder than it looks.’"

While Hengstler and his center were working on building a dialogue between the media and lawyers nationwide, Oregon was still relying on guidelines.

In 1993, the bar Press Broadcasters Council revised the guidelines, which — in addition to confessions — also declared that pretrial disclosure of opinions about guilt, innocence or evidence; statements about anticipated testimony or the truthfulness of prospective witnesses; or scientific test results was "rarely appropriate."

But experienced reporters routinely ignored these guidelines, and some newer ones didn’t even know they existed.

Lawyers followed them — or not — depending on their role in the case, among other things.

In 1998, Portland’s Willamette Week ran a story that highlighted the problem.

The story criticized local media’s coverage — 202 stories over a 60-day period, according to the paper — of an incident in which a Christmas-tree vendor allegedly had been beaten severely and without provocation by bat-wielding teenagers. But, when the case went to trial, jurors unanimously acquitted the two teens who had been charged in the assault.

"What happened?" asked Willamette Week. "The answer has to do with how the truth differed from the picture the media had painted."

According to the paper, local TV news directors "…wouldn’t concede that any of their coverage was misleading or inaccurate. However, each said that if there was any error, it wasn’t their fault — it was the fault of the defense, which wouldn’t share its side of the story with reporters before trial."

"‘Would we have preferred to have the entire truth before we reported this story?’" the paper quoted KOIN TV’s then-news director as saying. "‘Of course we would, but that’s not the way it works.’"

Can’t We Just Talk About it?
Over the years following the Willamette Week story, the bar Press Broadcasters Council — whose membership includes 12 lawyers, six print journalists and six broadcasters, plus liaisons from their professional associations — continued to meet.

The meetings were hampered by skimpy attendance by broadcast journalists, who appeared to be causing most of the media/lawyer conflicts.

Then, in 2002, triggered by what council attendees agreed was an overly aggressive attempt by a broadcast reporter to speak to accused child murderer Ward Weaver’s lawyer in Oregon City the previous year, the council began planning the first "Building the Culture of Dialogue."

That meeting, held in May 2003 at Portland State University, has been followed by annual meetings at PSU. The council also sponsored meetings in Eugene in 2005 and Bend in 2008 and would have hosted another Eugene meeting this year had not Hillary Clinton and Barack Obama both arrived in town on the scheduled date.

Kateri Walsh, the bar’s community relations administrator and its liaison to the council, says that the Oregonian’s Green’s observation that lawyers expect the press to play by their rules when they’re not part of the legal system is exactly the point of these dialogues.

"Lawyers have some unrealistic expectations of the media, and journalists certainly have misconceptions about why lawyers do what they do," says Walsh, who fields calls from both professions. "These dialogues, according to the participants, have resulted in some genuine discoveries about what makes the ‘other’ profession tick. Have they changed the outcome dramatically? I doubt it. But we’ve had participants from each represented profession come back weeks later and tell us it changed how they thought about a story or a case. It’s not about controlling the choices; it’s about creating more informed decision-making."

Nick Budnick, a Portland Tribune reporter with a reputation for aggressive coverage who attended this year’s session mediated by Gillette, says that Walsh’s observations were true for him.

"As a reporter, hearing judges and lawyers trash the press and tell horror stories helps me be more aware of the potential pitfalls of court coverage," says Budnick, who previously reported for Willamette Week. "This helps because a lot of lawyers just don’t like to talk to reporters, even off the record, which in turn can hurt the quality and sophistication of news coverage."

Patrick McCreery, vice president and general manager of KPTV Fox 12 News for almost five years, calls the "Building the Culture" gatherings "the most illuminating discussion of the year."

"It’s eye-opening for us (media people), says McCreery, who has attended a number of the dialogues. "When you guys (lawyers) say, ‘I can’t talk about it,’ you mean you can’t talk about it."

McCreery, who graduated in broadcasting the year that O.J. Simpson was arrested, acknowledges an increase in crime coverage.

"I would like to say it’s in no small part because of us," says McCreery. "Our competitors would say we cover more crime than anyone else."

McCreery says this is the result of providing viewers with what they want, based on Nielsen ratings — which broadcasters can get on an overnight basis — and other research.

"This doesn’t just mean covering the crime of the day," says McCreery. "It’s more than, ‘If it bleeds, it leads.’ We also cover crime fighting, crime heroes, etc. I don’t have a formula for the percentage of the news hole that crime news fills. Content is king: if the stock market is crashing, that’s the lead story."

McCreery says he gets requests from police "to sit on something" a couple of times a year. "My feeling is, I have to make those calls one at a time," he says. "I don’t have a policy. If someone asks me not to publish something, he has to have a valid reason, and I need to know what the information is so I can weigh the balance. More times than not, when the reasoning is good, we will hold something."

In addition to the dialogues, the council, which officially abandoned the old guidelines in 2006, drafted new guidelines that it approved this November.

While the new guidelines still address such topics as pretrial disclosure or reporting of confessions and evidence, the old "rarely appropriate" language has been replaced.

For lawyers, the advice now is that "Bar members should exercise caution about releasing or discussing information that either is not in the public record or may not be admissible in court." The media have been moved to a separate section, which also offers them "cautions." (See sidebar.)

Oregonian managing editor and council member Therese Bottomly says the new guidelines "arose from the frustration that every time we got together to discuss differences, the (old) guidelines tended to dominate. The tension was that prosecutors and police felt beholden to them in ways the press wasn’t."

Bottomly says the new guidelines were intended to correct the impression that "a level playing field" exists between lawyers and the media in terms of following rules and to educate the press about "why it causes concern when it does X, Y and Z."

While the Portland Tribune’s Budnick calls the new guidelines "far more reality-based" than the old, the former Oregonian reporter Green, now spokesman for the attorney general’s office, says their "caution" that pretrial reporting of a confession may jeopardize an accused’s right to a fair trial would not have affected how he did his job.

"Imagine you find a confession," says Green, who was the Oregonian’s chief legal writer for the last 10 of his 21 years with the paper. "It’s impossible not to print it. Crime news is pretty tawdry, but it’s what we cover. It goes against every grain to withhold information, which is what the guidelines want us to do."

"I don’t think public attention affects trials," Green concludes. "If so, O.J. would have been found guilty. Limiting information doesn’t work. You don’t want ignorant jurors. What the judge really needs to do is tell prospective jurors, ‘The odds are that one of you will go home and follow this trial on the Internet. Please don’t do that.’ If you give people good instructions, most people follow them. The best thing is to pick a good jury."

The New "New Media"
Not everyone agrees that crime coverage is still at a fever pitch.

"Now that crime rates have gone down, it’s…not as big a public issue as other issues like the economy and Iraq," Ted Gest, the former U.S. News & World Report legal-affairs reporter turned Criminal Justice Journalists president, told the Bulletin.

"Certainly, in my view, there’s less volume (devoted to crime coverage) than there was 10-15 years ago," says Gest, who prepares a daily web summary of crime and other law-related news, distilled from the dozens of newspapers and websites that he reviews daily.

Gest also notes that there is "lots more stuff online."

"The combination of these two things means that, on the whole, there’s less volume of crime coverage," he says. "And terrorism, since 9/11…gets a disproportionate amount of time versus crime, (even though) the chance of your being the victim of a crime here in Washington, D.C., is much, much higher than being the victim of a terrorist bomb."

It’s the "lots more stuff on line" part that worries Hengstler, especially because even the traditional media have bought into it.

"They’re scared," explains Hengstler, pointing to the economic hurricane currently flattening newspapers across the country. "Gannett [which owns USA Today, among other media] is laying off up to 3,000 people. The Christian Science Monitor is going weekly. They’re covering this stuff, hoping their niche, their writing, is so compelling that they won’t get fired."

Hengstler points to the 2006 shooting of a Washoe County, Nev., judge by a man whose divorce proceeding was pending before him as an example.

"The new-media citizen/journalist has no qualms about objectivity," Hengstler says of online attacks on the judge, Chuck Weller. "When Judge Weller got shot, the blogs went nuts. The problem is that the Reno Gazette-Journal, in an effort to connect (with readers), (then) did a story about how the family court is in chaos and bad. The story included how Judge Weller had refused to hold a hearing in another case concerning the sexual abuse of a child. The problem was that Weller couldn’t have held a hearing because a Florida court already had had a hearing and decided that no abuse had occurred. Where was the (paper’s) interpretation? Where was the context?"

In addition, says Hengstler, he now sees traditional print media "run a story, put it online and invite people to respond."

"Here’s the difficulty," he says. "As long as they don’t edit it (a response) or select it, they have no liability for its contents. That’s why you’ve got all this outrageous stuff — unfiltered — on the newspaper’s own website."

In December, a pro tem Clackamas County Circuit Court judge ruled that the same Oregon law that allows the media to shield the identity of news sources also protects anonymous writers who post comments on media websites.

According to Hengstler, this evolution isn’t good for either the court system or the public.

"I’m not sure the traditional tools judges have to protect their courts work in the modern age; i.e., gag orders," says Hengstler. "They worked for newspapers and TV. But now that we’ve got [online] news 24/7, if the people with accurate information are gagged, who’s left? Speculators."

"Remember the movie "Network?" he continues. "We have really blurred the line between information and entertainment. What is the ultimate cost in terms of the public’s trust? When one airline runs an ad, it doesn’t say, ‘We have fewer accidents than another airline,’ because that would be offset by a long-term loss of confidence in flying. That’s what happening with the courts and the media right now. I think it will have a strong impact on our democracy."

U of O journalism professor Upshaw agrees.

"When they (major crime events) happen, other things do get sacrificed," he says. "TV news, much more than the print media, has the dictatorship of pretty rigid time segments and advertising, and news producers are at the mercy of those dynamics. Of a 30-minute segment, after ads, sports and weather, there’s not much time left over for news. That’s a lot of competition for what we ostensibly are watching the broadcast for."

Rewriting Reporting
The answer to a better-informed public may lie not in guidelines but in reporters who choose — and whose bosses allow them to choose — to report different stories, or to report crime news more accurately or in a different way.

For example, Upshaw says that when Kip Kinkel shot 27 students at nearby Springfield’s Thurston High School in 1998, his journalism students — some of whom had attended Thurston — tended to identify more with the students and their families than with the media.

"Some students said, ‘I’m pulling out of this [journalism] major: I don’t want to do what I saw those reporters do," says Upshaw, noting that one tabloid reporter apparently used fake identification to slip into the hospital where injured students were being treated, eavesdropping on and disclosing private conversations.

"These kinds of things are harmful to everybody," says Upshaw. "Those students who stayed in the major thought they could chart their own course re: what they cover and don’t cover."

Matthew Kauffman Smith, who has taught college-level introductory news writing classes in Portland for the last six years, says he’s noticed that "the days of real gung-ho ambulance chasers is gone."

"My students don’t seem really interested in shows like ‘To Catch A Predator,’ says Kauffman Smith, referring to Dateline NBC’s hidden-camera "reality" show. "They see the flaws without my even prompting them. It makes for good TV, but it’s bad journalism. While it’s good these guys [pedophiles] are being arrested, the stories don’t get to the heart of the problem: who these guys are, what led them to this behavior. There’s no back story."

In Bend, the local paper has addressed the "back story" problem by hiring Cindy Powers, a law school graduate and former Marion County prosecutor who now reports on legal and public safety issues.

That, says Deschutes County District Attorney Michael Dugan, has made for better legal coverage.

"All too often, the news media assigns its least-experienced reporters to cover the legal stories in smaller communities," says Dugan. "These reporters know little about the procedure of the cases, let alone the actual legal basis for the charging decisions that are made. In many circumstances, the reporter is asking questions to which we think any person who took high school civics should know the answer. But our local daily paper has assigned an experienced, legally trained reporter to cover crime and some of the (court’s) civil cases. Doing this has made the coverage much more meaningful. The stories are much more accurate and the prosecutors aren’t confronted with non-relevant questions."

Online teachers like the Criminal Justice Journalists’ Gest also are working to help non-legally trained reporters cover legal topics better.

"A lack of detailed knowledge may be acceptable for a writer doing a single feature interview or a short ‘police blotter’ type item," he writes in his introduction to the group’s website. "But learning on the job is not the best way to produce a good nuanced story about a complex investigation, law enforcement initiative, or trial. …High quality news reporting on crime and justice issues is vital both to inform citizens about life in their communities and to encourage rational public policymaking. This requires thorough reporting on individual cases as well as on trends."

Hengstler suggests that reporters even look at the local courthouse as the source of news other than crime.

"There’s more information in courts than who beat up someone and who went to jail," he says.

As an example, he cites a June 2007 center workshop that brought together journalists and bankruptcy trustees.

"The trustees told the journalists that in 18 months, we would see foreclosures on a scale never-before heard of," says Hengstler, noting that that’s exactly what happened. "I’m still getting thank-yous from journalists for allowing them to be prepared for that story. There’s a wealth of information there (in the courthouse). I fault reporters for not using courts as a watchdog on
their communities."

Seeing the Future in — a Snow Globe?
Hengstler says that while he doesn’t think the current trends in media are reversible, there is reason to hope that the interests of the legal system and other public interests ultimately will prevail.

"It’s like a little glass ball with a snow scene," he says. "It’s swirling now, but no one knows how it’s going to settle, what the media’s going to look like 10, 20 years from now."

"If you’re a pessimist like the New York Times [which in October ran an article entitled ‘Mourning Old Media’s Decline’], you say, ‘The paradox is that we (the media) don’t have an audience problem. We have a consumer problem: people don’t want to pay for the news.’"

"On the optimistic side," says Hengstler, "you can equate it to the beginning of this country, when there were a lot of different pamphleteers ripping Britain. Some of it was fact; some of it wasn’t true. If you were a colonist, you had this swirl of information that you had to sort out. We don’t remember most of the pamphleteers, but we do remember Thomas Payne, The Federalist Papers, Madison. (So) it’s too soon to say who will gain traction (in the new media)."

Hengstler says he likes to quote something Judge Learned Hand said in 1942, long before O.J., jurors with Blackberry devices or bloggers on the Internet: "[T]he hand that rules the press, the radio, the screen and the far-spread magazine, rules the country. Whether we like it or not, we must learn to accept it."

 

ABOUT THE AUTHOR
Janine Robben has been a member of the Oregon State Bar since 1980. She is a frequent contributor to the Bulletin; a former reporter for the Portland Tribune, covering crime and other legal-related topics; and has served on the bar Bench Broadcasters Council.

© 2009 Janine Robben


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