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Robin L. Barton

To Tweet or Not to Tweet

March 1, 2011 12:57:30 am

By Robin L. Barton

The Fugitive (both the TV show and movie) is said to be loosely based on the real life case of Dr. Sam Sheppard, who was convicted of murdering his wife in 1954. Both fictional versions focused on the convicted doctor as he went on the lam in pursuit of the real killer. But in the actual case, Sheppard’s attorneys were able to get his conviction overturned by the U.S. Supreme Court by arguing that the carnival atmosphere at the trial created by the news media interfered with the defendant’s right to a fair trial.

The Supreme Court’s decision noted that the courtroom in the original case was jam-packed with reporters, whose movements in and out often caused so much confusion that it was hard to hear witnesses and counsel. In addition, the trial judge didn’t take precautions to insulate the jurors from the publicity as well as from reporters and photographers. The Court concluded that, “Given the pervasiveness of modern communications…trial courts must take strong measures to ensure that the balance is never weighed against the accused.”

A similar argument is being made once again—and this time the focus is on the use of “new media” to cover trials. On Oct. 5, 2010, Steven Hayes was convicted in Connecticut of the murders of Jennifer Hawke-Petit and her two daughters and was sentenced to death. His attorneys are appealing the conviction. One of their main arguments: the intense reporting of the trial, especially journalists’ extensive use of Twitter, created a circus-like atmosphere that deprived Hayes of his right to a fair trial.

According to the New York Times, the defense claims that more than 140,000 Twitter messages were sent by reporters during the trial.This “widespread, instant saturation,” in the defense team’s words, of inflammatory details caused the jury to be improperly swayed by public passions.

The trial judge, who rejected the argument presented by Hayes’ attorneys. He ruled that the news media was “carefully controlled” and that there was no evidence the jury was driven by passion.

Jury selection in the trial of Hayes’ codefendant, Joshua Komisarjevsky, is scheduled to begin March 14. However, his lawyers have filed a motion asking for a change in venue in part due to pre-trial coverage of the case.

Mixed Results on Tweeting of Trials

The Hayes trial isn’t the first time that the use of new media to cover trials has been questioned. The courts have taken various positions on this issue.

For example, a reporter for the Columbus Ledger-Enquirer who was covering a criminal case in the Middle District of Georgia asked the court for permission to use a handheld electronic device to Tweet the trial. In denying this request, the court relied on Federal Rule of Criminal Procedure 53, which bars the “broadcasting” of criminal cases in all federal district courts. The court ruled that “the contemporaneous transmission of electronic messages from the courtroom describing the trial proceedings, and the dissemination of those messages in a manner such that they are widely and instantaneously accessible to the general public” fell within the definition of “broadcasting.”

In contrast, reporters were permitted to live blog during the Scooter Libby trial in federal court, albeit from an overflow courtroom where they could view a live broadcast of the proceedings. And according to the Citizen Media Law Project, judges in state courts in California, Colorado and Michigan, and in federal courts in Florida, Iowa, Kansas, Massachusetts, Pennsylvania and Washington, DC have allowed live blogging in their courtrooms.

The Pros and Cons

The arguments in favor of allowing live blogging and Tweeting from courtrooms generally stress the importance of making the judicial system more transparent and accessible to the general public. Even the Supreme Court in the Sheppard case acknowledged the importance of media coverage of trials, saying, “The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and the judicial process to extensive public scrutiny and criticism.”

Opponents of the use of new media to cover court cases argue that real-time posting of detailed information about a trial can influence witnesses’ testimony and impact the jury. In addition, they claim, the clickety-clack of reporters typing away on their iPhones, Blackberries and other electronic devices in the courtroom may be distracting and disrupt the proceedings.

Live Blogging Guidelines

The Citizen Media Law Project has developed guidelines for journalists on the use of new media in the courtroom. The two key recommendations: (1) Find out the court’s rules on the use of computers and other electronic devices in the courtroom and in the courthouse in general; and (2) ask for permission before live blogging or Tweeting in the courtroom. The guidelines advise reporters that they may have more success in getting permission if they:

*  Focus on the nature and public benefit of blogging or tweeting;

*  Stress the public’s interest in the case;

*  Note their professional experience or credentials;

* Explain how the technology works.

Bottom line: New media isn’t going away. The manner in which the public gets—and expects to get—information about trials and other news has changed. Waiting until the next day to read in the newspaper what happened in court today is no longer acceptable.

People essentially expect this information instantaneously. The judicial system is going to have to come to terms with this new reality and adjust accordingly by setting appropriate rules for the use of new media.  Those rules must balance the rights of the press and the public with the rights of the accused. To take a lesson from Darwin, the courts must adapt or die.

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office. She worked in the trial division, Serious Offender Unit in the Office of Special Narcotics and Rackets Bureau, where she developed and supervised investigations that targeted high-level narcotics trafficking, gambling and racketeering in the construction industry and related labor unions.

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