Judges, journalists compare notes on trial coverage

Friday, November 18, 2005

NASHVILLE, Tenn. — Judges and journalists explored the ways the news media and the judiciary can work together to improve press coverage and public understanding of how courts function at a daylong forum Nov. 15. Participants also discussed the recent phenomena of blogging and the challenges posed to both groups by new technology.

The “Justice and Journalism 2005” conference, part of an ongoing series, brought federal judges, journalists, academics and professionals together at the First Amendment Center. The center sponsored the gathering with the Judicial Branch Committee of the Judicial Conference of the United States.

In a discussion about the use of undisclosed sources, moderated by First Amendment Center Executive Director Gene Policinski, judges as well as journalists agreed that a jurist’s willingness to help a reporter understand and accurately report court cases depends on the judge’s certainty that information provided will not be misused.

Constrained by codes of conduct from discussing the proceedings of cases, judges often hesitate to speak to reporters. Speaking off the record, even if only to explain legalities for journalists without law degrees, can be dangerous for the judge, if he or she is not convinced of a reporter’s experience or trustworthiness.

“When I first came on the bench 38 years ago, courthouse reporters, you saw them all the time,” 11th U.S. Circuit Court of Appeals Judge Gerald Tjoflat said. “If they didn’t understand something, you’d explain it — you’re not changing your opinion or anything, you’re just filling in the blanks.”

The difference between the courtroom-beat reporters of old and those of today is in the judges’ ability to trust the new reporters — many of whom are new to the job, Tjoflat said. Corporate consolidation of newspapers may be a reason for the rapid turnover of courtroom reporters, he said.

In a session moderated by District Judge D. Brock Hornby, District Judge Aleta Trauger said she thought newsroom budget concerns had led to the reshuffling of journalists.

“I’ve had the impression over the years that local newspapers have just cut the budget so much that they can’t cover the court adequately,” Trauger said.

She said she had seen a trend over several years in which reporters would cover courts for about six months before moving on. The result is not only more inexperienced journalists who require “long orientations” from judges, Trauger said, but also a decreased willingness on the part of the jurists to speak to reporters.

“You don’t have time to develop trust with a newspaper or a reporter when there’s no consistency and there is no level of communication,” Trauger said. “I would never have a conversation with a reporter I didn’t know, but I feel very, very comfortable giving background information to a reporter that I knew well and knew I could trust.”

Tom Chester, deputy managing editor of the Knoxville (Tenn.) News-Sentinel, agreed, saying that trust formed the basis for interactions with judges as well as all unidentified and off-the-record sources.

And loss of confidence in journalists can taint all future interactions between a source and the news media.

“Trust is such an important thing — once lost, never retrieved,” said District Court Judge James Whittemore. “I can tell you from personal experience … it doesn’t take much. Whereas I used to welcome reporters and deal with them on an information basis, and I still look out for someone I know … when I get a call from CNN, I don’t talk to them.”

Journalists and judges alike said it was not a judge’s responsibility to make sure a journalist is right in what he or she reports, but they can provide assistance.

While a court story in the print media can run without the reporter’s talking to a judge, comments from a judge can be the story for the televised media.

“A judge is the only one who can prevent me from doing my job,” said Rick Willis, news director of News 14 in North Carolina.

One problem many of the jurists identified was an overall lack of press coverage, the exception being when a case before the courts on any level becomes an issue of nationwide interest, such as murder trials involving famous defendants.

District Judge Robert Echols said he’d found that print-media stories about the courts tended to appear several days after a courtroom development when space permitted, although he admitted the daily work of the judiciary was “pretty boring.”

No matter the relationship between individual jurists and reporters, 6th U.S. Circuit Court of Appeals Judge Gilbert Merritt said there was a “reciprocal relationship” between the judiciary and the press.

“The press is dependant on the judiciary, on the courts, on the Supreme Court in particular for interpretations of the First Amendment,” Merritt said.

“The [Founding Fathers] wanted a strong, independent judiciary,” he said, “and it seems to me that the press doesn’t have a duty, but it has a self-interest in protecting the effectiveness of the federal judiciary just because it protects their speech rights and if that reciprocity didn’t exist, we would have a much weaker system.”

“There is no way to preserve the independence of the judiciary without the support of the free press,” Merritt said.

Bloggers and technology
Technological innovation in recent years has raised many concerns for journalists and jurists, although in different ways.

The recent rise in popularity of blogging presents a unique challenge to both groups by its very nature. Blogs — short for weblogs — are personal Web sites, updated frequently, that give the “blogger” or the person who is posting information the chance to write and be read publicly. The nascent, lightning-fast “blogosphere” is fed through wireless Internet access, Blackberry mobile devices, and even cell phones with Internet capability.

Bloggers’ uninhibited ability to make information available to the world raises some issues. One is that the information is not subject to any editing or regulation before it shows up online.

Robert Cox, president of the Media Bloggers Association, said that because a blogger is his or her own editor, if what is posted is erroneous or libelous, it is the blogger’s responsibility to correct or withdraw it.

“If a blogger refuses to [make a correction], there is no direct recourse,” Cox said. “You can’t go to their publisher because they are their own editor.”

For courts, the developments in technology can threaten the impartiality of juries, said Judge Hornby.

“There will be defendants out there who will be trying to impact the juries,” he said.

Information about trials placed on the Internet can be sent to jurors second- or third-hand via e-mail Merritt said.

Cox said he had not heard of any “live bloggers” watching trials and updating their blogs from the courtroom. “You’re more likely to see a blogger who is ‘live blogging’ by watching a trial on TV,” he said.

Regardless of how and where a blogger updates his or her Web site, the threat of blogs to unbiased juries and fair trials is serious enough that District Judge Andre Davis said he specifically admonishes jurors against viewing blogs, posting information about the trial on the Internet, or even using Google to search for trial details not provided in the courtroom.

For members of the press, the rapid spread of information over the Internet is problematic. Once the main source of news, the news media now have to race to keep up with bloggers, who are assuming a role as breakers of stories.

Policinski said that whereas news was once conveyed on a 24-hour cycle with the publication of the daily paper, in today’s world, news has become 24/7 and must be constantly updated.

As a result, journalists may write stories dozens of times for the newspaper’s online edition before the article actually is printed.

“I just sat in court and dictated a story to my Web page from the courtroom,” Chester said. “Before we ever printed in our newspaper our first story on this [case], we had 31 updates on our Web site.”

Dean Charles Bierbauer of the University of South Carolina’s College of Mass Communications and Information Studies said he worried that the newest and fastest technology may replace the news itself.

“It used to be that the medium was the message; that of course was long before the Web,” Bierbauer said. “The message is still the message and the medium is just the vehicle, but you do have to worry about when the medium takes over and becomes the dominating factor.”

“What worries me is the drive to be the first is replacing the need to be thoughtful,” said Paul Pinkham, a writer for The Florida Times-Union in Jacksonville.

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