Mediaboss Marketing

The courtroom often pits adversaries against each other, and that was the case in the recent Jeremy Christian trial in downtown Portland.

The competing principles in conflict? Fair trial vs. free press.

A defendant has a right to a fair trial. The media have a First Amendment right to report freely. While those rights are not inherently adversarial, they can come into conflict during high profile cases that attract extra media attention.

That was the case in the trial of Jeremy Christian, who was convicted in the killings of two men on a MAX train. The crime drew national attention, and Multnomah County Circuit Judge Cheryl Albrecht knew the trial would be packed with reporters and photographers.

Well in advance, she prepared an order outlining rules about coverage inside the courthouse. While the government cannot tell the media what to report and what not to report, courts can place restrictions on the use of things such as cellphones and laptops inside the courtroom. For the privilege of using a cellphone, which typically is forbidden, the media is restricted in how they can use phones and the cameras in the phones.

Albrecht also took the extra and welcome step of inviting interested journalists to meetings ahead of the trial to go over the rules and to answer questions. These were well attended by print, radio and television reporters and editors who had a chance to ask questions about where to put their equipment and where to station microphones and cameras.

A judge focuses on ensuring a fair trial, avoiding a mistrial and making the right decisions so an appeals court doesnt undo everything years later. The defense and prosecutors similarly are focused on their jobs.

While philosophically the media may agree they play a role in ensuring a fair trial, that rarely is front of mind for most journalists in their day to day work.

We want information, we want lots of it, and fast. We also want access, which helps provide thorough and accurate coverage, as well as compelling images. We are vigilant and outspoken if we think something is happening in secret that should be in the view of the public. And we are vigorously independent, chafing at any attempt to control or shape our journalism.

Despite all of the advance work on the Christian trial, not everything went smoothly, as is often the case when events unfold in real time and the stakes are so high.

The judge told the media she was very concerned about seating a jury. In fact, a much larger than usual pool of potential jurors was called to the courthouse for the trial.

Albrecht said she didnt want the questioning of jurors to be reported by the media. We couldnt agree to that, and voir dire, which was held in open court, was reported on.

Over our objection, the judge also did not allow The Oregonian/OregonLives reporter to sit through jury orientation, although she did release a copy of the questionnaire prospective jurors were asked to fill out. We believed the orientation should be public.

Because the requests dealt with the process of jury selection, my initial inclination was to protect juror privacy and shield jurors from invasive scrutiny, Albrecht told me. Jurors are asked to relinquish their work and personal lives for weeks at a time and endure highly emotional testimony and exhibits. It is imperative that they be able to do the important work of deciding a case without fear of recourse or reprisal.

Jurors, typically addressed by name, were instead referred to by letters and numbers. This was done both to protect jurors from possible intimidation and also for their privacy. We did not object.

Journalists sometimes organize themselves into a pool, where one reporter stands in for all. We understood a pool reporter and photographer would be able to watch the jurors visit a MAX light rail train similar to the one where the attack occurred. On the morning of the visit, we were told no media would be allowed.

The Oregonian/OregonLives attorney filed a letter of objection with the judges clerk but it was too late. The visit occurred outside of the medias presence. (We later were told that TriMet, not the judge, had said no media could attend the visit on its property.)

Albrecht noted that media requests often arise in the moment, unlike other decisions before the court. They are not raised in advance and there is usually no hearing, no authorities provided, and no briefing of the issues. Some of the requests affected the rights of the parties and there simply was not sufficient time to allow the parties to weigh in and for me to make a ruling, she said.

The biggest conflict occurred when Albrecht directed the media to not report on a witness testimony if, at days end, she had not finished. The judges decision was intended to ensure reporting about a witness testimony would occur only after the witness had finished, in order to avoid witness tampering or intimidation.

This seemed to The Oregonian/OregonLive to be an unconstitutional muzzling of the press. Any person in the courtroom that day could walk out and tweet, update Facebook or text their friends but the press could not report? Charles Hinkle, the attorney who has represented us on First Amendment issues for many years, drew up a motion and headed over to the courthouse.

For many years, I have been a member of the Bar-Press-Broadcasters Council, a volunteer group of lawyers, media, judges and other interested parties. The council is independent and helps work through these inevitable conflicts that arise during police investigations and court trials. Albrecht also has been a member of the council, and she took many steps to communicate with reporters and to be accessible when questions arose.

I can only imagine how difficult it is for a judge on a high-profile case with intense scrutiny, a volatile defendant and so much at stake (my sister, Leslie Bottomly, also is a Multnomah County judge).

These conflicts are difficult in the best of times, but journalists are loath to intervene on the morning of a stressful day in court. Yet the principle of a free press is fundamental for us, and we cannot sit by quietly and accept limits on our reporting of events that occurred in public view.

Judges can and do govern when and whether we can send information out of the courtroom on our laptops or phones. Thats the price we pay for being allowed to use phones and laptops, which by rule typically cannot be used in courtrooms. Those rules are intended to limit disruption, ensure fair trials and protect jurors and witnesses.

As Albrecht told me, The Oregon Supreme Court has said judges have broad latitude to control their courtrooms, including taking steps necessary to protect the rights of participants in judicial proceedings.

But judges cannot limit what we report once we leave the courthouse. We did not have to file our motion because, ultimately, Albrecht agreed with us after she was able to research the matter.

Its an important guarantee, enshrined in the U.S. Constitution, and at the end of the day, it is the reader who benefits.

Therese Bottomly is editor and vice president of content for The Oregonian/OregonLive. Reach her at tbottomly@oregonian.com or 503-221-8434.

Read the original post:
Letter from the Editor: When fair trial, free press rights collide - OregonLive