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Balancing Acts Need Not Tilt Toward Secrecy

From the Spring 2004 issue of The News Media & The Law, page 11.

From the Spring 2004 issue of The News Media & The Law, page 11.

Someday, in our lifetime I hope, we’re going to reminisce about the media coverage of many high-profile criminal trials and chuckle, as if looking back on the Mesozoic Era. “Can you believe we actually relied on chalk sketches of accused murderers and thieves, their lawyers and the judges,” we’ll recall with much head shaking, “and weren’t allowed to use a single moment of video or sound from a public courtroom? Unbelievable!”

Sadly, we are still firmly entrenched in that prehistoric age, where judges are allowed to ban cameras for any reason they choose. This occurred again recently in the trials of the two Washington, D.C.-area sniper suspects, John Allen Muhammad and Lee Boyd Malvo. The Virginia state judges in both cases prohibited video cameras and sound recording, though Muhammad’s judge did allow still photography. The judges cited a unique aspect of the sniper cases in banning cameras, thus attempting to limit media c overage: the suspects likely would face other trials for some of the shootings, and potential future jurors could be influenced unfairly.

But once they had rejected the media’s repeated entreaties for video access, the judges in both cases did a fine job of creating access to the court files and the courtroom itself. The judges knew that public interest, and media interest, would be very high. Rather than close proceedings or limit media presence, both judges seemed constantly mindful of the legitimate need for a public, open trial, and successfully walked the line between accommodating the media and conducting a fair trial.

Each judge appointed veteran private attorneys, rather than young public defenders, who were not only experienced capital murder litigators but also media-savvy and willing to answer our questions. I doubt that anyone who observed these trials from start to finish would say Muhammad or Malvo didn’t get a fair shake — both were found guilty of murder; Muhammad was sentenced to death, and Malvo life in prison. But the judges in each case also managed to grant us a very reasonable amount of access at the s ame time.

The judge in the Malvo case, Fairfax County Circuit Judge Jane Marum Roush, seemed to lead the way. Roush, a voracious reader of newspapers and the Internet, and Fairfax County quickly established a Web site that contained every motion and order filed in Malvo’s case, from pretrial through sentencing. This precluded a constant media demand for copies from the clerk’s office, and aided news organizations not located in Fairfax, a suburb about 20 miles west of Washington. Muhammad’s judge, Prince William County Circuit Judge LeRoy F. Millette Jr., followed suit during pretrial proceedings with a Web site of his own.

When it became clear to the judges that they were going to grant change of venue motions, Roush promptly started shopping for a suitable courthouse elsewhere in Virginia. Among her concerns, besides security, were a courtroom large enough to hold victims’ families, spectators and the media, and a facility that would enable a closed-circuit broadcast to an overflow room for reporters and other spectators who couldn’t fit into the courtroom. She found Chesapeake, Va., with a fairly new courthouse already fully wired for cameras and sound, and an adjacent community center for a closed-circuit feed and media headquarters.

Millette then began his search, and decided on Virginia Beach, Va. The courthouse there has much smaller courtrooms and had to be rewired for cameras, and the media center was five blocks away, but it basically fit our needs. In both media centers, reporters and producers were allowed to use wireless laptop computers to file continuous updates on the trials, and they could go in and out as they pleased; courtroom spectators were gadget-free and not allowed to return to their seats if they left during the trial.

In Malvo’s trial, Roush even took the extra step of posting trial exhibits on the Internet, including photos (except gory death shots), transcripts of tape recordings such as Malvo’s confession, and more than 100 of Malvo’s jailhouse drawings. Millette did not post exhibits online.

Both the Virginia Beach and Chesapeake public information offices worked closely with the judges to clear up any problems with the media, and there were few. Chesapeake PIOs used their facilities to print out and photocopy documents for reporters, and quickly relayed complaints about sound in the media center. Roush often reminded the lawyers to stay near the microphones so they could be heard on the closed-circuit feed, saying she wanted to “keep the media happy.”

Although some broadcast journalists bemoaned the lack of video to capture emotional moments, such as testimony from a victim’s daughter and Malvo’s reactions, the consensus is that Roush and Millette did keep the media happy.

“I think this was an example where it all worked,” said Laura Bernardini, a CNN producer who covered both trials. “While Roush would not allow cameras, she did the second-best thing, which was keep the flow of information going.”

Tom Jackman is a staff reporter for The Washington Post who has covered many high-profile cases, including the murder trial of Lee Boyd Malvo.