Judicial education

From the Fall 2006 issue of The News Media & The Law, page 1.

Nearly half of the telephone calls I take each week from reporters across the country involve complaints about access to the justice system.

The U.S. Supreme Court made it clear in the late 1970s and early 1980s that, absent extremely rare circumstances, proceedings in the criminal justice system must be conducted in public. This includes releasing court records.

Nevertheless, the Reporters Committee gets a steady stream of complaints about closed hearings, secret dockets, sealed documents, prior restraints, subpoenas and anonymous juries.

The other day, an exasperated reporter in Rhode Island called for comment on an increasingly common situation. After a recent criminal trial, a federal judge warned the jury to avoid talking to the media. He told them that they had a First Amendment right to speak to anyone they wished about the trial, but that he strongly recommended they avoid the despicable media. The judge did not violate the law. But his admonition to the jury is disturbing.

For the past six years, the Reporters Committee has been working with the National Center for Courts and the Media to improve the relationship between the courts and the media. That includes trying to blunt the hostile attitude many judges have toward reporters.

I serve on the advisory board for the center, which is located at the National Judicial College in Reno, Nev. A couple of times a year, I also help teach the center’s course for judges who want to learn how to manage high-profile cases.

One of the more surprising things I have learned by teaching judges is that First Amendment jurisprudence is not something they routinely run into. They’re familiar with the case law involving drugs, murders, DUIs, assaults and the like. But most judges can spend years on the bench without encountering a public access issue.Most of the calls I get are from disgruntled reporters who have a more thorough grasp of First Amendment jurisprudence than do the courts.

I always start my class with the basic Supreme Court cases governing fair trial/free press issues that judges need to master. Those cases, including Richmond Newspapers v. Virginia, Nebraska Press Association v. Stuart and Press Enterprise I and II, should be enough to keep most judges out the appellate courts when access issues come up.

From there, the faculty, which always includes a journalist, a public information officer and an experienced trial judge, moves to specific problems. We conduct mock television interviews with the judges and critique their performance. We make them cover a mock news conference and write newspaper stories and headlines about a hypothetical case. (A typical comment from a judge who has just written her first news story: “This is hard!”)

They watch television clips where judges did a great and not-so-great job of handling media attention. On the last day, we work with them on tips for handling O.J. Simpson-like mega-trials.

I’ve learned much from interacting with these trial judges. Their jobs are not for the faint of heart. Media attention to them and their families can be terrifying. Rookie reporters with no experience covering the courts can do great damage to a defendant’s right to a fair trial. And the recent Supreme Court decision governing what elected judges can say during the campaign season is clear as mud.

Over the past several years, hundreds of judges, dozens of court public information officers and a couple hundred journalists have participated in NCCM programs, largely funded by the Donald W. Reynolds Foundation. We’re also proud that the center uses many of the Reporters Committee’s publications in the curriculum.