Carrying
Water to an Undying Blaze
by
Robert M. Henderson, APR
The
Liaison Committee shall exist to
provide assistance in the resolution
of disputes which may, in the course
of a legal proceeding, arise from
conflicts between a litigant's right
to a fair trial and the news media's
right to observe and report that
proceeding. It shall be commonly
known as the "Fire Brigade." [By-laws
of the Bench-Bar-Press Committee
of Washington]
It
is said that media types were behind
the bench-bar-press "movement of the
early 1960's. Never a wholly popular
institution in the United States,
The Fourth Estate had, by post-WW
II days, pretty much worn out its
welcome in American halls of justice.
Media behavior in major, high profile
cases such as Sacco and Vanzetti,
the Tennessee Scopes "Monkey" Trial,
and the infamous Lindbergh baby murder,
had led many to seriously question
the right of news organizations to
cover court proceedings.
Anti-media
sentiment was building. New technology
did not help. There was an electronic
marvel called "radio" with its attendant
wires, microphones and amplifiers.
TV cameras began to come on the scene.
Print photographers carried large,
heavy still cameras with dishpan-sized
flash reflectors that shot flashbulbs
the size of pullet eggs. After the
Lindbergh case, it would be 50 years
before New York's total stricture
on cameras in courts would be relaxed.
Then
came the Sheppard case. A focal point
of local, Cleveland society, Dr. Samuel
Sheppard - "Dr. Sam" to the press
- was young, good-looking and accused
of murdering his wife. Convicted by
an Ohio trial court, his case worked
its way to the U.S. Supreme Court
during the early 60's until, in 1966,
the high court overturned the conviction,
calling news coverage of the original
proceeding a major threat to the doctor's
right to a fair trial. "Legal rights,"
the court said in Shepppard v. Maxwell,
"are not like elections, to be won
through the use of the meeting hall,
the radio and the newspaper."
In
January of 1964, two years before
the final word on Sheppard, a couple
of carloads of Seattle-area judges,
lawyers and news media people made
a Saturday trip to Portland. Their
purpose: To witness a meeting of Oregon's
"bench-bar-press" committee.
Oregon
was one of a number of states to organize
groups of attorneys, judges, editors
and reporters to work out First versus
Sixth Amendment problems during the
late 1950's and early 60's. Some feel
much of the impetus for these committees
came from media leaders who, in the
wake of Sheppard and other "circus"
cases, feared the legal establishment
would shut news organizations out
of the courtrooms, thus denying them
a major source of grist for their
editorial mills.
In
Washington's case, there seems to
have been no single event or case
that led to the organization of the
Bench-Bar-Press Committee of Washington.
Early committee minutes credit the
state "Judicial Conference" (probably
the group that is known today as the
Washington State Judicial Council)
as urging then-Chief Justice Richard
Ott (who probably chaired the committee)
to develop a bench-bar-press group
in 1964.
At
the time, "Those...who have the privilege
of representing the daily newspapers
approach the work of this committee
with enthusiasm," apparently had no
negative briefs to file regarding
relations with the bench and bar.
At the start of a long career as Executive
Director of the Allied Daily Newspaper
Association, newsman/lawyer Paul Conrad
noted in the same February '64 statement,
"From the viewpoint of our Association
and its member newspapers, our relations
with Washington's courts and with
the legal profession in general have
been excellent. We take some pride,
and hope our friends on the bench
and within the bar do too, in the
atmosphere of mutual respect that
sustains this relationship."
Its
first secretary-treasurer, Conrad's
minutes of the organization's annual
Fall meetings detail the progress
of the completely unofficial, ad hoc,
parlor discussion group: development
of bylaws, including Rotarian-like
criteria for membership (anybody can
show up and be heard, but only a specified
number from each of the organization's
19 member groups can vote) and, in
1966, promulgation of "guidelines"
for press behavior during trials.
A
decade-and-a-half later, those guidelines
threatened the very existence of the
committee after a trial court judge
attempted to use them as a contract
with news reporters who were covering
a high-visibility trial in his court.
In an appeal by a reporter's newspaper,
the judge's position was affirmed
5-4 by the Washington Supreme Court.
Later, the U.S. Supreme Court refused
to hear the case.
At
an unprecedented two meetings in one
year, Robert F. Brachtenbach, committee
chair and then-Chief Justice, hoped
the case wouldn't "rent the fabric"
of the organization. It was reported
that similar committees in other states
had disbanded in protest of the Washington
situation. But judicial calm prevailed.
Under Brachtenbach's leadership, the
committee rewrote its guidelines,
tabbing them "principles and considerations."
Now with decades of history behind
it, Washington's bench-bar-press committee
-- probably the nation's oldest --
lives on.
Sometime
in the 1970's, Conrad's carefully
typed minutes began to mention something
called a "fire brigade."
Annual,
state-level ventings of frustrations
about fair trial/free press problems
apparently were not getting the job
done at the local level. Committee
members decided local fair trial/free
press disputes should be resolved
as each arose, before they had a chance
to burgeon, delay proceedings, and
become a "trial within a trial."
After
some discussion, but without formal
vote, the committee of the whole appears
to have blessed the creation of a
volunteer "Liaison Committee." Its
job: to assist in the resolution (but
only if asked) of conflicts between
a defendant's Sixth Amendment right
to a fair trial and the press' First
Amendment right to unfettered reporting.
Composed
more or less equally of representatives
of bench, bar and press, the half-dozen
member committee began to take requests
for help. If a reporter got shut out
of a pretrial hearing, the group got
a call. A judge who was worried that
media reportage would poison his jury
pool might also call for advice. Because
it usually responded to last-minute,
emergency pleas for help, the group
was quickly nicknamed, "The Fire Brigade."
For
many years, that term was synonymous
with the name of the late Frank Roberts,
a long-time judge of the King County
Superior Court. In annual, verbal
reports delivered to the parent committee,
the judge would describe the half-dozen
or more incidents handled during the
year.
A
few years ago, the Fire Brigade was
given a more official status, and
a stated purpose, when it was included
in the by-laws of the parent committee.
Liaison Committee assistance may
be provided to any lawyer, judge or
media professional requesting it.
Assistance shall be limited to those
involved in disputes resulting from
conflicts between rights of fair trial
and free press. Assistance may consist
of consultation, mediation and/or
the provision of information to requesting
parties. [ART. IV, Sec. 3, of
the Bylaws of the Bench-Bar-Press
Committee of Washington]
For
several years, the Liaison Committee
was chaired by the Honorable Gerry
Alexander, then a Judge of the Washington
State Court of Appeals, Division Two.
Using a somewhat different style than
his predecessor, Judge Alexander polled
his small delegation by phone or held
committee brainstorm sessions via
conference calls when asked to consult
on a problem.
The
latter method was employed when the
judge in the trial of accused child
molester and murderer Westley Allan
Dodd, saw a potential free press/fair
trial problem. The judge had learned
that Dodd had volunteered to meet
in his cell with a reporter and give
her his own special, artistic creation:
a "coloring book" designed to warn
kids away from child molesters, like
himself. Worried that this apparent
public admission of guilt would taint
the jury pool, the trial judge contacted
Judge Alexander for advice.
By
conference call, Alexander called
a meeting of most of his eight brigadiers,
tracking down at least one participant
at an out-of-state location. Together,
group members came up with options
that could be presented to the newspaper
editor, options that would give the
defendant the fair trial he was due,
while maintaining the paper's right
to publish the material it had received
from Dodd.
None
of the Fire Brigade's options were
accepted by the editor and the story
ran, with illustrations from Dodd's
coloring book, as scheduled. But in
an interesting acquiescence to accountability,
the editor took space in his own column
to tell readers his reasons for running
the piece, the options offered to
him by the Fire Brigade, and his reasons
for not accepting them. Later, Quill,
the journal of the Society of Professional
Journalists, also printed a commentary
on the situation.
In
the years since its first informal
start, the Fire Brigade has never
been asked to handle a great number
of problems, a half-dozen a year at
most. But there will probably always
be a need for its help. The constitutionally
built-in friction between the rights
of a free press and a litigant's right
to a fair trial will, at least occasionally,
kindle a blaze that requires the volunteer
services of the "Fire Brigade."
[Bob
Henderson retired in 2000 as the public
information officer for the state
Office of the Administrator for the
Courts. An accredited public relations
professional, he served as the secretary-treasurer
of the Bench-Bar-Press Committee of
Washington for many years.]
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| Broadcast
Journalist Contact on Fire Brigade |
Liason
Committee ("Fire Brigade")
KIRO-TV
reporter Deborah Horne is the representative
of broadcast journalists on the
Bench Bar Press Committee "Fire
Brigade." Contact Deborah if you
have a problem with courtroom access
that you cannot resolve with the
judge or the judge's staff. Deborah
will, in turn, contact the chair
of the Fire Brigade, Judge William
Downing of the King County Superior
Court who will conduct the Fire
Brigade's informal mediation of
the situation. If you cannot get
in touch with Deborah and the situation
requires immediate action, you may
feel free to contact Judge Downing
directly at (206) 296-9362. The
Fire Brigade handles inquiries from
all areas of Washington state.
Journalist
Representing Broadcasters on Fire
Brigade:
Deborah
Horne
KIRO-TV 2807
Third Avenue
Seattle, WA 98121
Phone: (206) 728-7777
Fax: (206) 441-4840
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| Broadcast
Journalists on Committee |
| Broadcast
Members |
| WSAB
(Member of BBP Steering Committee) |
Mark
Allen, President & CEO
Washington State Association of Broadcasters
724 Columbia Street N. W., Suite 310
Olympia, WA 98501
Phone: (360) 705-0774
Fax: (360) 705-0873 |
| Television |
Deborah
Horne
KIRO-TV
2807 Third Avenue
Seattle, WA 98121
Phone: (206) 728-7777
Fax: (206) 441-4840 |
Ed
White
KING-TV
333 Dexter Avenue N.
Seattle, WA 98101
Phone: (206) 448-5555
Fax: (206) 448-4525 |
| Radio |
Ursula
Reutin
KIRO Radio
1820 Eastlake Ave. E.
Seattle, WA 98102
Phone: (206) 726-5457
Fax: (206) 726-5446 |
Darren
Reynolds
KOMO Radio
140 Fourth Avenue North, Suite 340
Seattle, WA 98100
Phone: (206) 404-4000
Fax: (206) |
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Bench
Bar Press Statement of Principles |
The Bench-Bar-Press Committee of Washington
Statement of Principles & Considerations
PREAMBLE
The Bench, Bar and Press
(comprising all media of mass communication)
of Washington:
(a) Recognize
that the reporting by the news media
of governmental action, including
the administration of justice, is
vital to our form of government
and protected by the Constitutions
of the United States and the State
of Washington.
(b) Seek
to preserve the constitutionally
protected presumption of innocence
for those accused of a crime until
there has been a finding of guilt
in the appropriate court of justice.
(c) Believe
both constitutional rights can be
accommodated without conflict by
careful judicial craftsmanship and
careful exercise of discretion by
the bench, the bar and the news
media.
PRINCIPLES
To promote a better working relationship
between the bench, bar and news
media of Washington, particularly
in their efforts to protect both
the constitutional guarantees of
freedom of the press and of the
right to a fair and impartial trial,
the following statement of principles
is suggested for voluntary consideration
to all members of these professions
in Washington. Any attempt to impose
these Principles and Considerations
as mandatory is contrary to the
intent of the Bench-Bar-Press Committee
and contrary to the stated goals
of these Principles and Considerations.
1) Accurate and responsible
reporting of the news media about
crime, law enforcement, and the
criminal justice system enhances
the administration of justice.
Members of the bench and bar should
make available information concerning
that process to the fullest extent
possible under their codes of conduct
and professional responsibility.
2) Parties to litigation have
the right to have their causes tried
by an impartial tribunal. Defendants
in criminal cases are guaranteed
this right by the Constitutions
of the United States and the State
of Washington.
3) Lawyers and journalists should
fulfill their functions in such
a manner that cases are tried on
the merits, free from undue influence
by the pressures of news media reports.
To that end, the timing and nature
of media news reports should be
carefully considered. It is recognized
that the existence of news coverage
cannot be equated with prejudice
to a fair trial.
4) The news media recognize
the responsibility of the judge
to preserve courtroom decorum and
to seek to ensure both the open
administration of justice and a
fair trial through careful management.
5) A free press requires that
journalists decide the content of
news. Journalists in the exercise
of their discretion should remember
that readers, listeners and viewers
are potential jurors.
6) The public is entitled to
know how justice is being administered.
However, lawyers should be aware
that the timing and nature of publicity
they create may affect the right
to a fair trial. The public prosecutor
should avoid taking unfair advantage
of his position as an important
source of news, even though he should
release information about the administration
of justice at the earliest appropriate
times.
7) Proper judicial, journalistic
and legal training should include
instruction in the meaning of constitutional
rights to a fair trial, open justice
and freedom of the press, and the
role of judge, journalist and lawyer
in guarding these rights. The bench,
the bar and the press will endeavor
to provide for continuing education
to members of each respective profession
concerning these rights.
8) Open and timely communications
can help avoid confrontations.
Toward that end all parties are
urged to employ the Bench-Bar-Press
Committee’s Liaison Subcommittee
when conflicts or potential conflicts
arise.
CONSIDERATIONS
IN THE REPORTING OF CRIMINAL PROCEEDINGS
The
Bench-Bar-Press Committee offers
the following recommendations for
voluntary consideration of all parties.
They may be of assistance in educating
law enforcement, the press, bar
and bench concerning the exercise
of rights, duties and obligations
outlined in the Statement of Principles.
The
bench, bar, press and law enforcement
officials share in the responsibility
for the administration of an open
and fair system of justice. Each
has a special role which the others
should respect and none should try
to regulate the judgment of the
others.
Public interest in the administration
of justice may be particularly great
at times prior to trial. Pretrial
proceedings often are as important
to the open administration of justice
as the actual trial. The bench
should help ensure both openness
and fairness through commonly accepted
judicial procedures consistent with
these Principles. The bar should
carefully consider the timing and
nature of the publicity it creates.
The media should contribute to openness
and fairness by careful evaluation
of information that may be kept
from the jury at trial and by exercise
of restraint in reporting that information.
All parties should be aware that
the jury system has the capacity
to provide unprejudiced panels even
in cases of great public interest
and substantial media coverage.
1) It is appropriate to make
public the following information
concerning the defendant:
a) The defendant’s name, age,
residence, employment, marital status,
and similar background information.
There should be no restraint on
biological facts other than accuracy,
good taste, and judgment.
b) The substance or text of
the charge, such as complaint, indictment,
information and where appropriate,
the identity of the complaining
party.
c) The identity of the investigating
and arresting agency and the length
of the investigation.
d) The circumstances immediately
surrounding an arrest, including
the time and place of arrest, resistance,
pursuit, possession and use of weapons,
and a description of items seized
at the time of arrest.
2) The release of certain types
of information by law enforcement
personnel, the bench and the bar
and the publication thereof by news
media generally tends to create
dangers of prejudice without serving
a significant law enforcement or
public interest function. Therefore,
all concerned should be aware of
the dangers of prejudice in making
pretrial disclosures of the following:
a) Opinions about a defendant’s
character, his guilt or innocence.
b) Admissions,
confessions or the contents of a
statement or alibis attributable
to a defendant.
c) References
to the results of investigative
procedures, such as fingerprints,
polygraph examinations, ballistic
tests or laboratory tests..
d) Statements concerning the
credibility or anticipated testimony
of prospective witnesses.
e)
Opinions concerning evidence or
arguments in the case, whether or
not it is anticipated that such
evidence or argument will be used
at trial.
Exceptions
may be in order if information to
the public is essential to the apprehension
of a suspect or where other public
interests will be served.
3) Prior criminal convictions
are matters of public record and
are available to the news media
through police agencies or court
clerks; law enforcement agencies
should, if requested make such information
available to the news media. The
public disclosure of this information
by the news media may be highly
prejudicial without any significant
addition to the public’s need to
be informed. The publication of
such information should be carefully
considered.
4) Law enforcement and court
personnel should not prevent the
photographing of defendants when
they are in public places outside
the courtroom. They should not
encourage pictures or televising,
nor should they pose the defendant. The
media should recognize that broadcasting,
televising, recording and taking
photographs in the courtroom is
governed by GR 16.
Artist’s
renditions sketched in the courtroom
are not covered by GR 16 and
should not be curtailed unless such
actions distract participants or
impair the dignity of the proceedings.
5) Photographs
of a suspect may be released by
law enforcement personnel provided
a valid law enforcement function
is served thereby. It is proper
to disclose such information as
may be necessary to enlist public
assistance in apprehending fugitives
from justice.
6) The media are free to report
what occurs in the course of judicial
proceedings. All participants in
the administration of justice should
work to keep the entire course of
judicial proceedings, including
pretrial hearings, open to public
scrutiny. The bench should consider
using all means available to ensure
protection of a defendant’s constitutional
rights without interference with
the public’s scrutiny of the criminal
justice system. The closure of
a judicial proceeding should be
used only as a last resort.
7) The bar and law enforcement
officials should expect that their
statements about a case will be
reported in the media. Such statements
should be made in a time and manner
contributing to public understanding
of law enforcement and the criminal
justice system, rather than influencing
the outcome of a criminal trial. |
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