Dear Dr. Ink:
My newspaper seems hellbent on doing jailhouse interviews even at the risk of interfering with a defendant’s due process. What’s your opinion?
Thank you.
Richard Atkinson, News Editor
The Tribune
San Luis Obispo, CA
Dear Richard:
This is an important and recurring question. Some democracies — Canada and Great Britain come to mind — have significant legal limits on what journalists can publish in advance of, or even during, a trial. These are imposed to protect due process.
As you might expect, the xenophobic Dr. Ink prefers the Yankee Imperialist Dog model: We can publish anything we want, any time we want, except in the face of a gag order.
The weakness in the British system was brought to light years ago by editor Harold Evans, who found himself in this predicament: He could not let readers know that the drug Thalidomide was dangerous to unborn children because the matter was being contested in the British courts.
That extreme case will not, and should not, govern the decision of most editors. When journalists choose to restrain themselves, they do not sacrifice First Amendment freedoms, and they may, in fact, help protect a defendant’s constitutional rights.
But no one should kid himself or herself about how the process works. Doc’s good friend, journalist and lawyer Neil Skene, taught him that the way we frame free press/fair trial issues is naïve. It begins with the notion that the news media are the only ones spreading the doo doo in due process.
In fact, there are many forces that prejudice the process: both the prosecution and defense want to get out information that reveals their case in the best light; attorneys may jockey for publicity for political or professional gain; judges may want to look tough or tolerant; disparities may exist between resources of the prosecution and the defense; jury consultants may be hired to choose not the most impartial group of jurors, but the one most likely to lean in their favor.
Doc is no historian, but he has the notion that the original concept of a jury of one’s “peers” meant people who knew the accused, not people who were strangers or blank slates.
So Doc says: Rock the jailhouse. But the best time to do this may be after the trial, not before or during. After the trail, the jury has already rendered a verdict, and the convict has a lot of time on his hands.
