With the advent of CourtTV, the proliferation of television judge shows and the public obsession with the Timothy McVeigh and O.J. Simpson cases, there is no disputing America’s fascination with the criminal justice system. Yet most Americans lack a basic knowledge of how the courts are run and of the many factors that influence the actions of judges and juries. News organizations struggle to provide timely, fair and accurate coverage under the weight of increasing bottom-line pressures, a revolving staff of young reporters and limited access to judges. Judges restricted by ethics rules and concerned with issues such as jury taint and public perception of their handling of cases (especially in states where judges are elected and not appointed) react by further limiting media access to court proceedings. The result is often bad blood between the press and the judiciary. “Too often, the news media deals in the bottom line – whether or not there was a conviction, what the sentence was, and the amount of damages recovered,” said Joseph E. Lambert, Chief Justice of the Kentucky Supreme Court. “It is important that the public understand the process by which those outcomes are arrived at. The news media is the primary source for that understanding.” Lambert attended one of several recent bench/media forums held across the state of Kentucky. The goal of the forums was to quell the animosity and improve relations between the courts and the media. They are sponsored by the Kentucky Press Association, Kentucky Broadcasters Association, the University of Louisville’s College of Arts and Sciences and the Kentucky Administrative Office of the Courts. “Some confusion between reporters and judges are inevitable,” said Jonathan P. Wolman, executive editor of The Associated Press. “The need for precision in law and journalism is the same, but the two disciplines fulfill different roles in our public life. Many issues can be eased if each side understands the other’s commitment to its work and what it needs to get it done.” Ed Staats, Kentucky Bureau Chief for the AP, helped organize the forums. He said Kentucky’s focus on judges and journalists to the exclusion of lawyers is “if not unique, at least bit unusual.” Many states have joint bench/bar/media forums, but Staats said that including only judges and journalists allows for a concentrated focus on the issues that separate the two groups and sparks a dialogue that “demystifies” the roles played by each group. The off-the-record forum discussions have been frank. Topics have included public opinion pressures faced by judges, the question of who bears the responsibility of educating the public about the judiciary, and when, or if, the media should hold a story back to prevent jury taint. “The barriers have come down, the masks have come off and real dialogue has occurred,” said Staats. “There is less guesswork and more real information being passed on in these meetings than would have otherwise been the case,” said Staats. Mary C. Noble, Chief Circuit Court Judge for Fayette County in Kentucky, participated in a forum held in eastern Kentucky. She said the forums gave her a new respect for and understanding of the media. “We have so many confidentiality restrictions on what we can say that it fosters a reticence to talk to the media. When I attended the forum, I learned “fair game” rules, like what is not for attribution and off the record,” she said. “I understand now that if the media calls for background, and it doesn’t involve confidential information or inappropriately expressing an opinion, I can direct them to where to find information on the case.” “Judges have come to realize the legitimate role of the news media in disseminating information about the courts. The media is a rightful partner in the process,” said Lambert. And the impacts are being felt outside of the forums themselves. According to Bob Schulman, former media critic for The Courier-Journal and Louisville Times and current special projects coordinator for the Dean of Arts and Sciences at the University of Louisville, which helped organize the forums, there has been “a striking reduction in the issuance of gag orders” since the forums began. The first round of forums will be completed this year, and Schulman said the group is considering several options for the future, including a second round of statewide forums or holding small brown bag sessions with journalists and judges across the state. The group also is considering teaming with state universities to offer a program on bench/media relations to journalism students across the state. Representatives of the media are buoyed by the progress that has occurred and want to make sure progress continues. Wolman said the AP is strongly encouraged by the effort in Kentucky and is working in other states to develop similar forums. Kentucky may want to look to Massachusetts for ways to keep the dialogue going. In 1995, members of the Massachusetts Newspaper Publishers Association and representatives of all areas of the state’s courts convened a judiciary/media committee to improve communication between the two parties. The 35-member committee, co-chaired by Massachusetts Supreme Judicial Court Justice John M. Greaney and Larry McDermott, publisher of the Springfield Union News and Sunday Republican, meets six times a year. “The group discusses issues like general access to court proceedings and documents and inaccurate coverage and unfair criticism of judges,” said Joan Kenney, public information officer for the Massachusetts courts. She said the committee strives to inform judges, court personnel and the media throughout the state that it is important to work cooperatively for the benefit of the public. Often, guest speakers are brought into meetings to spark discussion on specific issues. Speakers have included a judge discussing the use of cameras in the courts and a reporter who wrote a series of articles critical of a judge who explained how and why she wrote the articles. Conversations are off the record. Kenney said communication barriers have “broken down over time.” The meetings have helped expand media coverage of Massachusetts courts. “Despite the amazing amount of news coverage and concern about news coverage in the courts, we rarely think of areas like home court and housing court for stories. Ideas about how to cover these areas have come from these sessions,” said Bill Plante, executive director of the Massachusetts Newspaper Publishers Association. In addition to their candid discussions, the group has developed a series of initiatives. Their accomplishments include: • Five regional conferences across the state, which use hypothetical scenarios to spark real discussion on issues of interest in the region. An upcoming session will cover how reporters on deadline and busy court clerks can best work together. • The establishment of a response team subcommittee of 10 judges and journalists known as the “fire brigade.” The subcommittee is on-call to respond to questions and offer advice on issues related to trials in progress. Kenney said judges in the group are often able to offer curious journalists a rationale for why a judge is operating in a particular manner. • The publication of Guidelines on the Public’s Right of Access to Judicial Proceedings and Records, a compilation of rules, statutes and case law governing what is and is not considered a public record. • The creation of a “law school” for journalists, in which journalists choose the topics to be covered. Past topics have included evidence, access to court proceedings, and criminal and civil court. Three-hour sessions are held in the morning and evening to accommodate work schedules. A “journalism school” for judges is currently in the works. • The development of a new court rule that requires lawyers filing a motion to close a trial to notify the media prior to making the motion. This gives media organizations the time and opportunity to appear and argue against the motion. To spread the word, the AP puts the notice on its wire. Kenney said the end result of these initiatives has been a marked improvement in bench/media relations. “There will always be healthy tensions between the courts and the media on issues affecting fair trials and a free press,” he said. “Our goal is simply to foster a better understanding and appreciation of one another’s function, role and limitations.”
Ellen Birkett Morris is a free-lance journalist based in Louisville, Kentucky.
