Too often public is injured in collision of rights

Monday, November 1, 1999

The judicial system always seems to want something from the press and the press something from the judicial system. Seldom is either satisfied.

The latest headlines in this age-old and continuing clash between the First Amendment guarantee of a free press and the Sixth Amendment guarantee of a fair trial involve two different trials, one in Maine and the other in Texas.

In Maine, “Dateline NBC” has asked an Oxford County Superior Court judge to order the release of a 911 tape from June 19 when novelist Stephen King was seriously injured by a van that struck him while he was walking along a country road. The van driver faces criminal charges of aggravated assault and driving to endanger. The newsmagazine’s producers want the tape for a story airing on Nov. 4.

In Texas, prosecutors in the trial of Shawn Allen Berry, one of three men charged in the dragging death of James Byrd Jr., want the transcript and unedited videotape of an interview by CBS News anchor Dan Rather with Berry that appeared on “60 Minutes II” on Sept. 28. In a separate action, the prosecution wants a New York court to order Rather to testify about the interview.

Last week Texas Judge Joe Bob Golden ordered the CBS producer for the interview, Mary Mapes of Dallas, to surrender the transcript by 3 p.m. on Oct. 29 or go to jail. Just minutes after that Friday deadline, however, the 9th Court of Appeals in Beaumont granted a temporary delay and set up a hearing for Nov 4.

In Maine, the prosecutors maintain that releasing the 911 tapes might compromise a fair trial. The driver’s attorney already has asked for a change of venue, claiming that extensive news coverage precludes a fair trial. In Texas, the CBS News lawyers maintain that the interests of a free press would be compromised if the network had to turn over the transcript and tape or if Rather were forced to testify.

Whose rights should prevail in such collisions?

The answer to that question would be a lot easier if the contending sides didn’t assume there was an irresolvable conflict between the First and Sixth amendments. In fact, it is a rare situation where the interests of a free press and a fair trial can’t be accommodated simultaneously.

But we have to get past the idea of deciding whether the interests of criminal defendants, police, prosecutors and judges should trump the interests of the press. Reconciling the conflicting concerns becomes a lot simpler when we keep in mind that the interest that should come first is that of the public and its oversight of the law-enforcement and judicial functions.

When that interest is put first, the others tend to fall into place.

Should the press be hauled into court to produce raw tape and testimony from an anchor?

Certainly, says Jasper County District Attorney Guy James Gray. He concedes that he is not sure whether the tape or testimony would show inconsistencies in Berry’s statements to them. He also concedes that the tape and testimony are not crucial to the state’s case. But he’s willing to send lawyers to court and a producer to jail to make a point.

For their part, journalists become strangely inarticulate when trying to explain their position. “We are pursuing the legal means at our disposal to protect our constitutional rights and not turn over what we consider private, confidential journalistic material,” said CBC New President Andrew Heyward. A segment on last week’s newscast only brushed up against the real arguments for resisting the prosecution’s subpoenas.

To do their jobs of tracking down and charging criminals, police and prosecutors have a variety of tools and the force of law. They can detain for questioning, arrest, issue subpoenas and warrants, and compel testimony, to name a few.

To do their jobs of serving as the public’s watchdog, journalists have only their ability to find and interview sources and to grant them confidentiality. That ability is severely if not irreparably compromised if the courts honor the attempts of prosecuting and defense attorneys to make the press a part of the law-enforcement and judicial process rather than a reporter of the process.

Too often, however, judges accept the claims of police and prosecutors that they can’t nail a suspect or a defendant without compromising the press.

Police and prosecutors would serve the public better if they spent less time trying add the press to their team. Instead, they should recognize the vital role the press plays in helping them do their jobs with independent reporting that turns up information they may not have discovered otherwise.

For its part, the press would serve the public better if it did a better job of explaining the established and cogent reasons for the courts to uphold its right to fully and freely report on the actions of the law-enforcement and judicial systems.

Finally, there are a number of protections for the defendant’s right to a fair trial: questioning of prospective jurors, motions for change of venue, the judge’s control of proceedings, instructions to the jury, and appeal of adverse verdicts.

So there are remedies for a trial that goes awry. There are no remedies for prior restraint, censorship or the compromise of the press’s ability to do its job independent of government entanglement.

The search for justice on the one hand and the search for truth on the other must not become competing exercises.

Paul McMasters may be contacted at