Restraining the media....What gives?

AUGUST 25, 2003
by Debra Opri - Attorney and Legal Analyst

First, the judge rules there will be no cameras in the courtroom in the Scott Peterson case. Now Judge Gannett says no to the media's request for the release of detailed court records in the Kobe Bryant case, agreeing only to release the arrest warrant and related materials. What gives? What happened to the consistent and blatant liberal interpretation of the media's First Amendment rights? Since when has the "substantial probability" of prejudice to a defendant's right to a fair trial held any weight against First Amendment rights? Hasn't the media always gotten its' way?

I don't know. I may be reading too much into this sudden "pattern" of privacy, but something is amiss.

On Thursday, August 21, 2003, Judge Gannett ruled on the media's request for the release of sealed court records of the high profile sexual assault case involving Kobe Bryant. His "right to a fair trial" was held up as the rationale of the court's refusal to release what would have been, in other times and other high profile cases, fair game for the media and equally so, the public. Judge Gannett offered little in his explanation to the media when he boldly stated that there was a "substantial probability" of prejudice to Bryant while alluding to numerous factual statements contained in documents he would not release. As a lawyer, I think there should have been more substance behind the judge's reasoning and less conclusory statements.

Something is brewing. There is a distinctive rationale lately that "at all costs, keep it from the media." Could it be the Peterson and Bryant cases, each involving small town policy mandates, are trying to teach the "big city folks" [i.e., the media and press] a thing or two about who calls the shots? Or could it be that these real life "host" judges [not to be confused with Judge Judy] really do want to send a message to the media that First Amendment abuses will no longer be tolerated?

Interesting question for all of us: Who really gets to determine when the media has gone too far?

Since the media's constraints are self-possessed [this means non-existent to most reporters], and because First Amendment rights are so duly protected [this means the media is consistently going to court when someone says no, so the media can force the court to say yes, based upon "First Amendment" arguments], and because there really are no boundaries in which to say no, other than to argue that there would be prejudice to the defendant's right to a fair trial, it would be well advised for all of us to start looking at just what it is about the release of these documents in the Kobe Bryant case, and the exclusion of cameras in the courtroom in the Scott Peterson case, which would interfere with a claim of "possible" prejudice to a fair trial.

In the Scott Peterson case, the rationale behind exclusion of the cameras was to protect the privacy of witnesses and others who were dragged into this matter, albeit unwillingly. With Kobe Bryant, there are statements and graphic descriptions of the alleged sexual encounter, inclusive of testimonial and documentary evidence, again with underlying privacy issues.

In the balancing of the public's "right to know" versus privacy issues of all concerned in both cases, particular emphasis should be placed on exactly what it is that would interfere with a fair trial. In terms of disclosure, we, the public [with the media's assistance], have already learned how to read between the lines. A good example is the recent autopsy of Laci Peterson by the defense counsel's team of doctors. No direct disclosures there, in that there is a gag order in place. What conclusion does the public draw, however, when it is recently released to the press that the defense team for Scott Peterson is interviewing new doctors? My conclusion is that the first team of doctors isn't telling the defendant's attorney, Mark Gerragos, what he needs to hear to present a compelling defense. Public conclusions based upon minimal disseminated information. Still enough to taint a jury pool, folks.

In the Kobe Bryant sexual assault case, it's worse. Someone in a position of authority in Eagle Rock County, Colorado, and with knowledge of the intimate details of the case, has been talking. My guess is that a lot of people with firsthand knowledge have been talking. So much for the court's gag order in this case.

The simple premise is: people talk. And no gag order is going to stop the behind-the-scenes juicy gossip. And it finds its way into the media. And then another future jury is tainted.

The point here is that First Amendment rights, no matter how broad and misused, cannot be hindered. The facts will get out and the public will hear about them. And the public is the jury -- just twelve at a time. So if the public is going to hear about it, let it be the actual and true facts that are released. There is no reason to hide the documents, or keep the cameras out of the courtroom. There is more than adequate reason to conclude that to disclose these facts is to ensure a fair trial for both Scott Peterson and Kobe Bryant.