The working relationship between judges and the news media

by James McLaughlin

From O.J. Simpson to Martha Stewart, courtroom dramas have emerged as a staple of modern news coverage. And with a fresh wave of high-profile trials dominating the headlines in 2004 — Michael Jackson, Kobe Bryant and Scott Peterson, to name a few — the trend is unlikely to die anytime soon.

While lawyers, litigants, analysts and even witnesses provide a running commentary in the news media, the voice of the most authoritative participant — the judge — is usually silent, except for written opinions and the occasional ruling from the bench. Many judges simply choose to avoid talking to the press.

But is that the way it has to be?

Not necessarily, according to some judges and reporters. Robert Pirraglia, a judge in Providence, R.I., for 20 years, argues that a more candid judiciary could improve news coverage and ultimately benefit the public.

“There needs to be more contact between judges and reporters, more exchange of information,” says Pirraglia, who is retiring from the Rhode Island District Court this spring. “The ground rules have to be clear, but if there’s no communication, the chasm between the media and the judiciary will continue.”

More judges are coming around to that point of view, says Gary Hengstler, director of the Donald W. Reynolds National Center for Courts and the Media, located in Reno, Nev. “The old rule of flatly refusing to talk to the press is breaking down.”

Others suggest that judges who talk to reporters do more harm than good.

Says Ron Rotunda, a law professor at George Mason University who has written about ethical restrictions on judges’ speech, “I don’t see why judges ever have to talk privately with reporters when they are free to address any topic they want in their opinions.”

A Tradition of Silence

For the most part, judges and journalists have kept their distance from each other, a separation embodied in the culture and symbolism of the courts themselves.

Dick Carelli, a spokesperson for the Administrative Office of U.S. Courts, frequently participates in seminars and roundtable discussions about the news media’s coverage of the courts. At one such event, he says, a reporter pointed out that “the physical architecture of the courtroom, the fact that the judge is sitting on high, the black robes — it all reinforces the divide between the judge and everyone else,” says Carelli, who covered the Supreme Court for The Associated Press for 24 years.

“It can be daunting” for a reporter to approach a judge, Carelli says.

That reticence works both ways. Hiller Zobel, a retired Massachusetts Superior Court judge who presided over the infamous 1997 trial of British nanny Louise Woodward, says that some judges view talking to reporters as asking for trouble.

“The attitude of some judges is like that of [former Ohio State football] coach Woody Hayes, who said about the forward pass that three things can happen, and two of them are bad,” Zobel says.

It doesn’t help that when judges do grant interviews, they have frequently been second-guessed or embarrassed. In perhaps the worst-case scenario, U.S. District Court Judge Thomas Penfield Jackson was removed from the biggest case of his career — the government’s antitrust suit against Microsoft — for comments he made to journalists.

In a series of “embargoed” interviews with reporters for The New York Times, The Wall Street Journal and others, Jackson candidly revealed his impressions of what was happening in his courtroom, while proceedings were still pending. Among other things, he called Bill Gates a “smart-mouthed kid,” compared imposing a judicial remedy to smacking a mule with a two-by-four, and likened Microsoft executives to a gang of drug dealers. (See sidebar on page 4)

Although the U.S. Court of Appeals in Washington, D.C., stopped short of finding that Jackson was actually biased against Microsoft, it found that he had to be removed because his comments “created an appearance that he was not acting impartially.”