Learning from lacrosse

October 4, 2007Duke Law News

October 4, 2007--“Trial by media is as American as apple pie. This is not to excuse or rationalize, but merely to acknowledge.”

Hodding Carter III offered that wry observation in his keynote address opening “The Court of Public Opinion,” Duke Law School’s two-day conference on the practice and ethics of trying cases in the media, held Sept. 28-29. Organized by a faculty committee chaired by Senior Lecturing Fellow Kathryn Webb Bradley and sponsored by the John S. and James L. Knight Foundation, the conference brought together academics, attorneys, jurists, journalists, bloggers, and others for a series of roundtable discussions of the professional and ethical roles and responsibilities of members of the media, the bar, and the institutions involved in high-profile cases, as well as an in-depth post-mortem of issues raised by the Duke lacrosse case.

A renowned journalist, former president and CEO of the Knight Foundation, and now University Professor of Leadership and Public Policy at the University of North Carolina at Chapel Hill, Carter offered further observations ― and challenges ― that helped frame the panel discussions that followed.

The media frenzy and “pack journalism” that characterized coverage of the Duke lacrosse case was hardly an isolated phenomenon, Carter said. Journalists routinely demonstrate “an arrogant refusal” to acknowledge that its practices have “real effects upon real people, often with negative consequences,” he charged.

Still, the responsibility to make sure trials are fair “lies overwhelmingly on the bar, the agents of law and order … and on the courts,” said Carter. “Demanding that the media behave like lawyers are supposed to behave is hopeless. Demanding that cops, prosecutors, judges, and all other organs of justice behave as they are required to do by law and canon should be demanded.”

The disbarment of a “rogue” prosecutor like former Durham District Attorney Michael Nifong, and the exoneration of individuals wrongly accused of crimes should be routine yet isn’t, Carter said. He challenged the bar to offer as much “legal heavy-lifting” on behalf of the many poor people of color ― historically the primary targets of “media lynching” ― as it did in the Duke lacrosse case, and concluded by quoting the Supreme Court ruling in Sheppard v. Maxwell: “ ‘We must remember that reversals are but palliatives.’ We need … to prevent prejudice at its source.”

The playing field: news 24-7
High-profile cases play out in a round-the-clock media environment. This “24-7” news cycle, spawned by cable TV and spurred by the growth of the Internet and “new” media, as well as the “commodification” of news that blurs the lines between news and entertainment, were key topics for discussion throughout the conference.

Whereas editors used to hold information in order to “break” it in the morning papers on the premise that they had an exclusive story, they now post it online immediately, said Malcolm Moran, who teaches media ethics at Pennsylvania State University.

“There’s going to be another [Nifong]. There’s going to be another authority figure who will say something [at a press conference] that is going to be accepted as fact,” said Moran. “What we have lost is the ability to digest [and] to report more …because of the fear that the bus is leaving town and we’re left behind.” Core journalistic ethics such as seeking truth in reporting, minimizing harm, acting independently, and being accountable “are hard enough to hold onto when editors and reporters working on a story have five or six hours to make decisions,” he said. “When you have five or six minutes, the strain becomes even more intense.”

Whether blogs and wikis ― the so-called “new media” ― harm or help the cause of responsible journalism by increasing the pressure to report was a matter of considerable discussion. Political bloggers Marcy Wheeler, who live-blogged the recent Scooter Libby trial, and KC Johnson, who blogged throughout the Duke lacrosse case, said blogs can serve as an effective complement to the traditional media in covering trials and official proceedings in particular.

“In one of their most basic forms, blogs serve as watchdogs on the press, pointing out contradictions, spin and errors,” Wheeler said, noting that bloggers often take on the role of traditional journalists, sourcing materials and offering open-source investigations. Blog postings might offer timelines, assess public evidence, and raise questions that can point out “holes” in cases, giving readers a way to assess stories for themselves, she said. That was essentially the function of bloggers as the Duke lacrosse case unfolded, according to Johnson, a professor of history at Brooklyn College. For bloggers to have influence, he noted, “you can’t regularly publish incorrect and slanted things.”

Free press v. fair trials
A series of panel discussions highlighted the challenges of litigating high-profile cases, offering views from prosecutors, defense attorneys, and judges, and contrasting the American approach to that of other Western countries.

Criminal defense attorneys were advised to be extremely cautious in dealing with the media. “Trying” a case in the media can harm the client by alienating potential jurors, warned Professor Michael Tigar of American University, whose clients have included convicted Oklahoma City bombing conspirator Terry Nichols, Sen. Kay Bailey Hutchison (R-Tex.), and former attorney Lynne Stewart. But a number of his clients, including Terry Nichols, benefited from the intense media interest in their cases, Tigar added; finding witnesses reluctant to talk to his defense team but quick to speak with reporters about Nichols, Tigar found it helpful to investigate information that appeared in press reports.

Denver attorney Hal Haddon ’66, who represented John and Patsy Ramsey and defended Kobe Bryant against charges of sexual assault, agreed that media contact is inevitable in high-profile cases in which first impressions are “indelible.” Still, he called engaging with the media “a very dangerous undertaking” for a defense lawyer. The media will “run the story, not with your varnish, but with whatever varnish the local chooses to put on,” said Haddon. He said he prefers to communicate with reporters in writing in order to reduce the possibility for misunderstanding. “And once you [make a statement], shut up and go about your business, which is preparing and presenting your case,” he advised. “Ultimately, the jury determines based on the evidence what happens to your client.”

Prosecutors also have to remember that “a criminal defendant has the right to be tried in a courtroom, and the media does not have the right to try the case in the press,” said Marsha Goodenow, a veteran assistant district attorney in Mecklenburg County (N.C.) who testified against Michael Nifong at his North Carolina bar hearing. They must also be cognizant that press coverage has an impact on how the public views the justice system, added Hogan & Hartson partner Loretta Lynch Hargrove, a former United States Attorney for the Eastern District of New York. “You have to always stress, even at press conferences, that the charges are allegations only,” she said. “There is this tendency [in the media] to pick a victim, to pick a villain, to tell a story and get an answer. Sometimes there is no answer.”

Judges use such tools as protective “gag” orders, change of venue, special jury selection procedures, and jury sequestration to insulate the trial process from corruption, outside influence, and distortion, observed Dean David Levi in introducing a panel of judges who have presided over high-profile trials. “Are these traditional tools adequate in this era in which we live, when the media is no longer traditional? What are judges to do when some of the parties most interested in the litigation, [members of the media], are not actually before the court and subject to direct supervision?” asked Levi who served 17 years as a federal judge before coming to Duke.

While the judges agreed that there is little they can do to minimize pretrial publicity before charges are laid, once a case is in a judge’s hands, he or she has “to take control of the case immediately,” said Judge Reggie Walton, who recently presided over the trial of Lewis Scooter Libby. “You have to be willing to step up to the plate and take a hard-line position if you feel things are taking place that have the ability to compromise the possibility of a fair trial. I will do my best to accommodate the media, but my bottom line is to make sure that the defendant and the government receive a fair trial.”

Gary Hengstler, director of the Reynolds National Center for the Courts and the Media at the National Judicial College, expressed concern that editorial decisions are often not made in the spirit of public interest, and protective orders may be wholly ineffective. “In the 24-hour news cycle, if the lawyers and witnesses who have the information are not allowed to talk to the media, who is going to talk? Those who want to speculate. To what extent is that counterproductive in terms of informing the public about the trial process so that they have confidence in judicial integrity?” His center is attempting “to educate judges about the media, how to respond, and how to have a judicial strategy for the media,” said Hengstler.

Panelists offering European and Canadian perspectives on the tension between a free press and fair trial suggested that the American approach too heavily favors freedom of the press.

“The activities of sections of the media in cases like the Duke lacrosse case, far from performing their legitimate and vital role in a democracy, betray it. This betrayal can have devastating consequences for the individual,” said Gavin Phillipson, a professor of law at the University of Durham in England. “Such examples, to me, represent a betrayal by the press of the First Amendment’s purpose, as lives and liberties are destroyed in the pursuit of stories. More importantly, perhaps, this is accompanied by a stubborn refusal, in most American legal discourse, to reassess the current approach to the First Amendment in the light of such appalling misuses of the license it grants.”

Phillipson noted that in most Western democracies, members of the traditional and new media are severely restricted, and under threat of criminal sanctions if they publish materials that create a “substantial risk” of prejudice to criminal proceedings.

“Looking at the persistent refusal of U.S. law to protect individuals from the effect of media coverage on their trials … [seems] the very opposite of the American respect for the individual and individual liberty,” Phillipson said. “Rather, it looks very much as though the individual, and his or her freedoms and rights are being sacrificed to the commercial interests of the media and the curiosity of the majority.”

Learning from lacrosse
Institutions can learn and be positively transformed by crises, observed Judith Clair, an associate professor at the Boston College Carroll School of Management. “Crises offer the opening for ‘issue leadership.’ An organization that has learned from a crisis has the opportunity to share those lessons with others and create broader change beyond the borders of the organization,” she said. “Duke is in a position, because of this experience with the lacrosse case, to take leadership around the issues, whether they be issues of class, race, gender, media relations, or whatever, in part because of it’s time in the spotlight. [Duke] has a story to tell and people are interested in hearing about that.”

For Duke, the conference was part of an effort to do just that ― learn from the crisis of the lacrosse case. During one roundtable discussion, participants from all relevant disciplines ― university administrators and coaches, students, journalists, and community leaders ― dealt with an unfolding hypothetical scenario with parallels to the lacrosse case. Another panel featured members of the Duke and Durham communities who “lived through lacrosse” as university decision-makers, reporters, and observers who shared their reflections on the case. LaTisha Gotell Faulks, an assistant professor at North Carolina Central University School of Law, noted that “what happened here happens all the time.

“Our public policy is to ignore the possibility of others [cases], and that’s inappropriate,” said Gotell Faulks. “This is an opportunity for the media to take advantage and find these other stories and bring them to light, to redeem themselves.”

The lacrosse case did, in fact, highlight “crucial problems of our culture ― problems of achieving justice in a media-saturated society, problems of fundamental fairness to individuals, and problems in the way the American public is informed and misinformed about the world we live in,” Duke University President Richard H. Brodhead said in an address.

Making his first public comments in the case since the disbarment and resignation of former Durham District Attorney Nifong, Brodhead reflected on the lessons he took from the case, and apologized on behalf of the university for, among other things, failing to more strenuously defend the presumption of innocence, and to reach out to lacrosse team members and their families.

“When I think back through the whole complex history of this episode, the scariest thing, to me, is that actual human lives were at the mercy of so much instant moral certainty, before the facts had been established,” said Brodhead. “If there’s one lesson the world should take from the Duke lacrosse case, it’s the danger of prejudgment and our need to defend against it at every turn. Given the power of this impulse and the forces that play to it in our culture, achieving this goal will not be easy. But it’s a fight where we all need do our part.

“Much of me hopes the Duke lacrosse case will be forgotten someday. But if it is remembered, let’s hope it is remembered the right way: as a call to caution in a world where certainty and judgment come far too quickly.”

All panel discussions from “The Court of Public Opinion: The Practice and Ethics of Trying Cases in the Media” are available for viewing as webcasts.