9
Freedom of the Press
When I was a young lawyer, there were no cameras allowed in the courtrooms. Instead, reporters sat in, listened to testimonies and took notes. Interviews could be held outside the courthouse and were often conducted by conscientious and well-meaning professionals. In the early ’70s and into the ’80s there was a reporter in Orlando, Mr. Dick Burdette, who was notably methodical in his pursuit of accuracy. He would make appointments to meet with people and ask questions; he would attend hearings; he would research what he was talking about, and try to fully understand it; then he would write meaningful stories and undistorted articles presenting his findings to the public. I fear that his breed is all but gone today.
There are still some reporters that strive to report objectively in their broadcasts, but time crunches associated with competitive news deadlines and—more importantly—commercial sponsorship needs have changed everything about their job. Many of them are no longer journalists at all—for the most part, they are entertainers. Shortcuts take precedence in their industry over hard work and accuracy, and the law enforcement community and state prosecutors have learned how to turn this new and increasingly superficial news media to their advantage.
Law enforcement agencies now routinely have full-time spokespersons and publicists, who create news releases and press announcements to be distributed and made available to the distracted entertainers posing as journalists. Why inquire about the opinions of a lawyer on the other side of a favorite theory? Why waste time reading into a case’s history, or spending hours in court observing its slow-moving proceedings? All one needs to do nowadays is stop by the State Attorney’s office, pick up a copy of the press release of the day and concoct a story on that basis.
Ironically, these days the news media surrounding court cases are frequently of the opinion that their role is so important that they require special treatment, as though they were one of the parties to the lawsuit, and law enforcement agencies are all too happy to foster this misperception. As I mentioned before, in Florida, the Public Records Act is one of the chief sources of encouragement for this outrageous abuse of the First Amendment. Recall that under this series of laws, any person can write a letter of demand to a governmental agency—be it the prosecutors, the sheriff or the police—requesting access to all documents and records pertaining to a particular person or subject, and the law enforcement community decides what they will give up. If they don’t want to reveal something, they simply deny the request by saying the investigation is ongoing. However, if they want to poison the well of public opinion, they will parcel information out to the news media that serves their particular interests. Thus, under the aegis of transparency and public awareness, the truth is routinely distorted and manipulated in the public eye.
Similarly, I have heard people try to justify the presence of cameras in the courtroom with the argument that they’re used to educate the public and reveal the truth of what goes on there. This is a sensible enough notion of their use, but unfortunately, one somewhat at variance with reality. Nowadays cameras left in the courtroom will record a whole day’s occurrences, only five to seven seconds of which is presented to the public—typically as the setting for a reporter’s saying whatever he or she wants to say, in line with a predetermined agenda. Supporters of cameras in the courtroom, having recourse simply to the sacrosanctity of “First Amendment rights,” tend to ignore the increased artificiality that such excerpted footage makes possible.
I myself have participated in the trials of more than a dozen criminal cases that were televised from the courtroom; in every single one of these circumstances I have observed a change in demeanor of the judges when they were filmed. It is easy to forget that they are politicians who will eventually be running for reelection, and that, despite the serious nature of their jobs, they are in fact no different from any other politician in terms of their reliance upon public perception.
The lawyers in these cases, I have found, are often terrified of how they may be portrayed in the thirty-second news stories that follow their day in court and behave stiffly when the cameras are rolling. The wise ones, recognizing that what they say and do is going to be taken out of context anyway, try to ignore them altogether.
Witnesses, too, tend to behave differently when cameras are present. They dress up in their Sunday best; many go to the trouble of having their hair styled for the occasion. While it’s nice to see people treating what are indeed solemn proceedings with respect, it is often humorous, and sometimes a little off-putting, to see the theatrical attitudes they adopt and spread to one another under these circumstances. Nor are jurors immune to the same contagion, despite the fact that in many cases television cameras are not allowed to record them or broadcast their faces or voices. They still come to the courtroom prepared for possible coverage and exposure—and this kind of media influence may be the most alarming of all.
During this next phase of the “Case Against Casey,” the media was everywhere: inside and outside the courthouse, up and down the streets, hovering overhead in helicopters. They even followed the lawyers into restrooms.
I’m told different numbers by court administration authorities, but apparently in this case approximately six hundred media outlets sought and obtained credentials to be able to observe and report on the trial. Every hearing involved, no matter how trivial or innocuous, was attended by news agencies competing for the next scoop—or the next occasion to invent one. In their rush to be first to publish the latest on the case, these agencies often rang false alarms, and were taken in by some very strange deceptions.
One evening, I was called at home by Mr. Tony Pipitone, a news reporter from the CBS affiliate Channel 6. I had known him as a generally competent man, who at least attempted to be factually accurate in his reporting. Mr. Pip-itone wanted to know if there was any truth to the news that Casey Anthony had fired Jose Baez as her lawyer. Naturally, I was amazed and asked him where he had heard this story.
It turned out that a creative inmate serving a lengthy prison sentence in another state had filed a pleading in the Circuit Court to the effect that Casey had wanted to get rid of Mr. Baez for an assortment of reasons, including incompetency and inexperience. There was not an inkling of truth to this report; it was simply the fabrication of a guy doing time, with nothing better to occupy his mind. Mr. Pipitone had the sense to see through these sham claims and had called me to verify the story before he ran with it—but more than a few of his colleagues did not have his circumspection, and soon the rumor was on the TV news and even in the paper.
The disturbing thing about this whole situation from a legal perspective was that the author of the motion was not an attorney in any capacity, and thus could not have signed his name with an official Bar Association number, which is required to file such motions in court. I heard from a member of the clerk’s office that this was not the first time this ruse had been tried; yet how this one had gotten through is an unsettling mystery.
Soon the distorted stories being circulated, along with prosecutorial speculations leaked intentionally to the media, brought national attention to the case. In my opinion the single most dangerously vituperative personality present for it all was none other than Nancy Grace. By all accounts, the Casey Anthony trial really put Ms. Grace’s nationally broadcasted show on the map; and when it had ended, her popularity dropped noticeably. Every night this woman would rail vehemently and emotionally against any suggestion of Casey’s innocence and do everything in her power to increase the likelihood of a conviction. Ms. Grace claimed to have been a former prosecuting attorney herself, and, therefore, to know what she was talking about; but though she was indeed, for a short period of time, a prosecutor, her expertise in that capacity is open to considerable question.
Another news personality on the same network, Jane Velez-Mitchell, seemed a second Nancy Grace, and every night the two of them would headline the “Case Against Casey” in the most bald-facedly prejudicial fashion. Whenever either of them managed to get somebody on their show who wanted to speak reasonably and objectively about what was going on, as soon as that person expressed an opinion inconsistent with either of theirs, they were cut off.
Some of these “expert” guests were in fact experienced lawyers; though in the media’s frenzied pursuit of new material, it did get to the point where any lawyer self-aggrandizing enough to buy or rent space on billboards was in stantly recognized as a “prominent expert.” Local news agencies seeking ready sound bites from local lawyers cared only minimally about the qualifications of the people they were tapping for their interviews. It didn’t matter whether the alleged expert had ever tried a homicide case; nor whether they had ever attained or qualified to test for Board certification. All they needed was a law degree and a willingness to jump in front of the camera.
One of the most offensive and outrageous circumstances of this kind, in which professional obligation was sacrificed in the service of public notoriety, was the appearance of Florida Attorney General Pam Bondi on national television. The Attorney General of the State of Florida is a statewide-elected Cabinet position. The job is essentially to oversee, as the chief law enforcement officer of the state, all the prosecutions and appeals of criminal defendants on a statewide level, and in all death penalty cases.
The Attorney General, as a Cabinet member, is one of the people who might ultimately sit on a Clemency Board considering any person seeking pardons from past criminal prosecutions. As such, the person in this position is often called upon to render legal opinions on questions of law presented to them by law enforcement agencies and other governmental agencies. They hold one of the highest offices of power in the state, and are supposed to be educated, professional and restrained to the utmost degree.
Ms. Bondi apparently forgot these principles and the basis of her office and power when she appeared on national television. In her broadcast appearance, she stated her opinion that Casey Anthony was guilty, and that the evidence against her was overwhelming. The Attorney General had, of course, never met Casey, nor had she spoken with the defense team or even attended any court proceedings. She was totally uninvolved, except as holding the title of Attorney General. But that didn’t matter to her. As a politician—and a right-wing Tea Party one at that—she wanted to take advantage of the free publicity; and the fact that a woman’s life was at stake did not seem to occur to her.
Now, the Rules of Professional Conduct of the Florida Bar, as well as the Standards of the American Bar Association, prohibit lawyers from making comments about ongoing litigation that they reasonably believe will be disseminated to the public and may impact the outcome of the proceedings. This stricture applies to every lawyer. In 1991, the United States Supreme Court ruled in the case of Gentile v. State Bar of Nevada that the right of lawyers to exercise free speech under the First Amendment has to give way in these circumstances to the Sixth Amendment right of counsel and the concept of due process of law. Disgusted by what I saw and heard, I sent Ms. Bondi a letter reminding her of her responsibilities of professional conduct, and pointing out her outrageous misconduct in making such statements publicly. I reproduce the letter as follows.
One might think that a person holding such an esteemed political position would at least have the professional courtesy to respond to such a letter; as of this very day, even after Casey Anthony’s acquittal, Ms. Bondi has never had the integrity or professionalism to respond.
From the beginning of our case, news reporters had acted as prosecutors; but as it went on, the media’s efforts to make themselves an actual party to the litigation deepened. Their continued demand for documents and discovery often struck one as an effort of this kind. The information that they allegedly obtained by public record included a daily itinerary of who visited Casey, what she ate and what she bought from the commissary. If any of the defense team met with Casey, this was immediately reported to the media, and when we would arrange for a potential expert witness to meet with Casey, they would rush to publish the witness’s name and credentials, along with wild speculations as to what their participation might imply for the strategy of the defense.
Objections to these revelations, and to their intentional impact on the due-process rights of Casey Anthony, fell on deaf ears in the court. Judge Perry claimed that he didn’t have the authority to advise or restrict the conduct of the jail in any capacity because of the “Separation of Powers Doctrine.” This is a fairly weak argument, since judges order sheriffs to do or not to do things all the time; nevertheless, as usual, our objections failed.
When we would go to visit Casey in jail, we would have to wait for protective security to clear the room from any other visitors, inmates, lawyers or corrections people before Casey could be brought in. Ostensibly this was for her protection. She and we accepted that, and frankly appreciated that special efforts were being taken to protect her from the potential threat of other inmates. The problem, though, was that under these circumstances, we had to meet with her in a large room that was constantly monitored by videotape, which meant we had to be concerned about a new form of unlawful eavesdropping on our attorney-client confidences.
I had received a confidential tip to be concerned about lip-reading in visitations with Casey, because this was an unusual case. I would be glad I heeded it. I was later given reliable information from a major news network that indeed they had employed professional lip-readers to try to decipher what was being said in confidence. Every time we had to approach the bench for “sidebar conferences,” I was mindful of the cameras focused on me and kept a hand in front of my mouth as much as possible. On a few occasions I was reminded that the court reporter was unable to hear what I was saying. Often this advice came from Mr. Ashton; though I have no way of knowing whether the prosecution was aware of the presence of lip-readers in court, he usually kept his own back to all of the cameras, putting the focus of any such interlopers squarely on Mr. Baez and myself.
We filed several motions and had hearings with the court, attempting to rein in such media interference with the trial, but were denied on each front. An instance of this sort of over-involvement that many of my lawyer friends around the country simply had a hard time believing was the media’s spying on the defense proceedings.
Throughout the pretrial proceedings the media would be given priority seating in the courtroom audience, right behind the defense table, where they would do their best to eavesdrop on our conversations. The courtrooms were already wired with sensitive microphones, which were on all the time. Anything you said at the defense table was recorded and made available to the media, unless you remembered to push and hold the button down to disconnect the microphone. Yet this information was hardly enough for our media eavesdroppers. On one occasion I realized that a television camera positioned on a high tripod was able to look over my shoulder and view notes between Casey and me. On another, while I was at the counsel table studying a copy of an appellate court decision, a cameraman used a telephoto lens to zoom in on what I was reading and photograph it for publication.
When it came time to set the stage for the trial, I insisted on relocating the defense table over to the side of the courtroom where no media could be behind us, and all the telephoto lenses could see would be our faces or the backs of our computer screens. Judge Perry graciously accommodated us in this regard, and the reconfiguration of the courtroom was completed before we left to conduct our out-of-town jury selection.
Unfortunately, when we relocated to Clearwater for the selection process, we found that the courtroom there was configured differently. Again the news media were allowed to position themselves and their cameras so as to be able to eavesdrop in on our conversations and notes. We had to develop a coded system in order to make it impossible for them to get any real meaning out of what they saw.
Furthermore, the configuration of the trial courtroom, which we thought would give us an advantage against the media’s spying, proved to be a problem in a different and unpredicted way. By being placed where we were, we afforded the judge the opportunity to hear what we were saying during breaks and recesses. He would stand behind us by the doorway on some of the occasions during which Casey and I had private conversations at the counsel table, and was even able to overhear our voices from the holding cell when Casey conferred with the other lawyers and me. It had never occurred to us that he could or would listen in on us in such a way, or that, having once heard us, he would not simply block it out of his mind or warn us on subsequent occasions to keep our voices down. Yet as will be discussed toward the end of this book, the judge would have a few surprises in store for us in this regard.
