Murder Trial: Genre
When Ontario judge Francis Kovacs issued a press ban in the highly publicized
Canadian murder case of Paul Bernardo,
United States journalists self-righteously (and from a position of safety) criticized
his decision and broke the ban. Now, an increasingly dysfunctional US media corps is courting a
similar order in the trial of Orenthal
James Simpson of Los Angeles, California.
Mr. Bernardo's ex-wife and co-defendant, Karla Homolka, has been convicted of
manslaughter, but Mr. Bernardo will stand trial for murder in the sex-slayings
of Kristen French and Leslie Maheffey, as well as manslaughter in the death of
Ms. Homolka's younger sister, Tammy.
Lawyers - who try their cases in the courts of law, as opposed to the courts
of public opinion - often worry about the intrusion of the mass
media into the jury's deliberations. In the United States, the right to
trial by jury is twice guaranteed by the Constitution
- in the Bill of Rights
and in Article 3; this is thought to reflect the colonists'
concerns with government oppression. It is interesting that the American press
failed to grasp the concern
of Judge Kovacs (and many Canadians) that there be no mistrial in the case of
Judge Kovacs ordered
- the Canadian news media, on proof of accreditation to the Court Services
Manager, be admitted to the trial;
- the public be excluded from the court room, with certain exceptions;
- the foreign media be excluded from the courtroom; and
- there may be no publication of the circumstances of the deaths of any
persons referred to during the trial, but certain procedural matters may be
This order is now on appeal.
Zone Of Privacy
Has excessive and inaccurate coverage by the media
violated the zone of privacy needed by a jury?
In the Simpson case, two major press stories based on "reliable anonymous
sources" have been proved false. Shortly after Simpson's arrest, a Los
Angeles television station reported that prosecutor Marcia Clark had
commenced a search prior to the issuance of a warrant. The report was later
retracted: the clock on the station's video camera had been set incorrectly!
Another Los Angeles TV station falsely stated that DNA tests performed on a
bloody sock recovered from Simpson's house matched Nicole Simpson's blood. The
station later retracted the report. Judge Lance Ito has thus far declined to
issue a press ban or to probe the false news leaks in the Simpson case. But his
struggle with the blow-by-blow media
coverage is apparent in his conduct of the trial and questioning or "voir
dire examination" of potential jurors.
The Canadian and US legal systems are as different
as the two countries' cultures and histories.
Would an American judge have powers similar to Judge Kovacs'? With the exception
of the ban on publication, it would appear that an American judge could legally
issue similar orders.
The American public has no right to attend pre-trial hearings (See San Jose
Mercury-News v Municipal Court  30 Cal 3d 498, 506; Gannett Co. v
DePasquale  443 US 368; California Penal Code section 868
[preliminary hearings]). If the the Kovacs ruling is a a pre-trial (as opposed
to trial) order, the analysis is simple. A Kovacs-type ban would apply in the
However, if the Kovacs order was in the nature of a "trial" order, the
comparison is complex. It is unclear whether an American judge could: (1)
exclude foreign media; (2) admit national media under a gag order; (3) exclude
the public except for family, officers of the court and others with a special
interest; and (4) ban "publication" of all substantive and some procedural
Exclusion Of Foreign Media
Judge Ito, in the Simpson case, could exclude foreign media. Although the
"media" has a qualified first amendment right of access to criminal hearings,
"media representatives have no rights beyond those of the public generally."
(California Continuing Education of the Bar, California Criminal Law Practice
and Procedure  at p 247). After all, the Sixth Amendment right to a public
trial belongs to the accused and not to the public or the press. (Ibid, but see
Proposition 115 which added California Constitution article I, section 29 to
provide a right to public trial for the People of the State of California, or
American journalists stand in the shoes of the public - the foreign press
does not represent the American public and can be excluded.
Conditional Admission Of National Press
In Canada, the gag order was issued in the case of Karla Homolka, the ex-wife
of Paul Bernardo. She apparantly did not object to the closed hearing. Paul
Bernardo, who will be tried separately, initially agreed to the publication ban,
but later changed his position. Judge Kovacs has noted that Bernardo can move
for an open hearing of his own trial.
Under American law, a criminal defendant can move to exclude the public (and
the media) from the trial. The public's (and media's) right to attend a trial
must be balanced against the defendant's right to a fair trial. (See Kirstowsky
v Superior Court  143 Cal App 2d 745; Press-Enterprise Co. v Superior
Court  478 US 1; Norris v Risley [9th Cir. 1989] 878 F2d 1178, 1182.)
There is also precedent for limiting or "gagging" trial attendees from
publishing (which includes oral publication) facts learned during the trial.
Restraint Against "Publication" Of Substantive Facts
In the US, pre-trial publicity orders that directly restrain the media are
thought to unduly limit the freedom
of speech. (This is what comes from throwing the tea into Boston harbor!)
(See e.g. Hunt v NBC [9th Cir 1989] 872 F2d 289 [defense petition to enjoin
"Billionaire Boys Club" docudrama failed]; CBS v U.S.Dist.Court [9th Cir. 1983]
729 F2d 1174, 1183 [injunction against airing of De Lorean tapes reversed.])
However, American judges can restrict media access to the courtroom and issue
gag orders limiting what the lawyers, witnesses and court staff may say to the
news media. (Sheppard v Maxwell  384 US 333.)
What is unusual about the Homolka case is that all parties initially
supported the ban. (After his initial agreement, Bernardo entered his
objection.) There is no equivalent American case law where the prosecutor, the
defense and the judge all agreed that the accused's right of fair trial required
pre-trial publicity orders. But such a ruling would be theoretically possible,
particularly in a rural area, because the legal standard requires a case-by-case
determination based on the balancing of competing interests.
America's First Amendment was drafted for pragmatic and political reasons,
just as Canadian law reflects that nation's greater faith in government and its
institutions. It is not surprising that segments of the Canadian public cry out
for a free (or free-er) press, while Americans are yelling "Enough!"
Perhaps the Homolka/Simpson tsunamis are the inevitable death rattle of the
Old Media, which nervously looks about the roadside as it huffs and puffs up the
Information Superhill, unable to match the pace of the frontrunner: a
sophisticated public hungry for high energy and accurate trial coverage. There,
in the gutters of the I-way, past the bloated carcasses of discarded
stories and yesterday's event-scenes, are clues to what every trial is about
from the very beginning: a search for the truth.
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