When Ontario judge Francis Kovacs issued a press ban in the highly publicized Canadian murder case of Paul Bernardo, United States journalists self-righteously (and from a position of safety) criticized his decision and broke the ban. Now, an increasingly dysfunctional US media corps is courting a similar order in the trial of Orenthal James Simpson of Los Angeles, California.
Mr. Bernardo’s ex-wife and co-defendant, Karla Homolka, has been convicted of manslaughter, but Mr. Bernardo will stand trial for murder in the sex-slayings of Kristen French and Leslie Maheffey, as well as manslaughter in the death of Ms. Homolka’s younger sister, Tammy.
Lawyers – who try their cases in the courts of law, as opposed to the courts of public opinion – often worry about the intrusion of the mass media into the jury’s deliberations. In the United States, the right to trial by jury is twice guaranteed by the Constitution – in the Bill of Rights and in Article 3; this is thought to reflect the colonists’ concerns with government oppression. It is interesting that the American press failed to grasp the concern of Judge Kovacs (and many Canadians) that there be no mistrial in the case of Paul Bernardo.
Judge Kovacs ordered that:
- the Canadian news media, on proof of accreditation to the Court Services Manager, be admitted to the trial;
- the public be excluded from the court room, with certain exceptions;
- the foreign media be excluded from the courtroom; and
- there may be no publication of the circumstances of the deaths of any persons referred to during the trial, but certain procedural matters may be published.
This order is now on appeal.
Zone Of Privacy
Has excessive and inaccurate coverage by the media violated the zone of privacy needed by a jury?
In the Simpson case, two major press stories based on “reliable anonymous sources” have been proved false. Shortly after Simpson’s arrest, a Los Angeles television station reported that prosecutor Marcia Clark had commenced a search prior to the issuance of a warrant. The report was later retracted: the clock on the station’s video camera had been set incorrectly! Another Los Angeles TV station falsely stated that DNA tests performed on a bloody sock recovered from Simpson’s house matched Nicole Simpson’s blood. The station later retracted the report. Judge Lance Ito has thus far declined to issue a press ban or to probe the false news leaks in the Simpson case. But his struggle with the blow-by-blow media coverage is apparent in his conduct of the trial and questioning or “voir dire examination” of potential jurors.
The Canadian and US legal systems are as different as the two countries’ cultures and histories. Would an American judge have powers similar to Judge Kovacs’? With the exception of the ban on publication, it would appear that an American judge could legally issue similar orders.
The American public has no right to attend pre-trial hearings (See San Jose Mercury-News v Municipal Court  30 Cal 3d 498, 506; Gannett Co. v DePasquale  443 US 368; California Penal Code section 868 [preliminary hearings]). If the the Kovacs ruling is a a pre-trial (as opposed to trial) order, the analysis is simple. A Kovacs-type ban would apply in the States.
However, if the Kovacs order was in the nature of a “trial” order, the comparison is complex. It is unclear whether an American judge could: (1) exclude foreign media; (2) admit national media under a gag order; (3) exclude the public except for family, officers of the court and others with a special interest; and (4) ban “publication” of all substantive and some procedural facts.
Exclusion Of Foreign Media
Judge Ito, in the Simpson case, could exclude foreign media. Although the “media” has a qualified first amendment right of access to criminal hearings, “media representatives have no rights beyond those of the public generally.” (California Continuing Education of the Bar, California Criminal Law Practice and Procedure  at p 247). After all, the Sixth Amendment right to a public trial belongs to the accused and not to the public or the press. (Ibid, but see Proposition 115 which added California Constitution article I, section 29 to provide a right to public trial for the People of the State of California, or the prosecution).
American journalists stand in the shoes of the public – the foreign press does not represent the American public and can be excluded.
Conditional Admission Of National Press
In Canada, the gag order was issued in the case of Karla Homolka, the ex-wife of Paul Bernardo. She apparantly did not object to the closed hearing. Paul Bernardo, who will be tried separately, initially agreed to the publication ban, but later changed his position. Judge Kovacs has noted that Bernardo can move for an open hearing of his own trial.
Under American law, a criminal defendant can move to exclude the public (and the media) from the trial. The public’s (and media’s) right to attend a trial must be balanced against the defendant’s right to a fair trial. (See Kirstowsky v Superior Court  143 Cal App 2d 745; Press-Enterprise Co. v Superior Court  478 US 1; Norris v Risley [9th Cir. 1989] 878 F2d 1178, 1182.) There is also precedent for limiting or “gagging” trial attendees from publishing (which includes oral publication) facts learned during the trial.
Restraint Against “Publication” Of Substantive Facts
In the US, pre-trial publicity orders that directly restrain the media are thought to unduly limit the freedom of speech. (This is what comes from throwing the tea into Boston harbor!) (See e.g. Hunt v NBC [9th Cir 1989] 872 F2d 289 [defense petition to enjoin “Billionaire Boys Club” docudrama failed]; CBS v U.S.Dist.Court [9th Cir. 1983] 729 F2d 1174, 1183 [injunction against airing of De Lorean tapes reversed.])
However, American judges can restrict media access to the courtroom and issue gag orders limiting what the lawyers, witnesses and court staff may say to the news media. (Sheppard v Maxwell  384 US 333.)
What is unusual about the Homolka case is that all parties initially supported the ban. (After his initial agreement, Bernardo entered his objection.) There is no equivalent American case law where the prosecutor, the defense and the judge all agreed that the accused’s right of fair trial required pre-trial publicity orders. But such a ruling would be theoretically possible, particularly in a rural area, because the legal standard requires a case-by-case determination based on the balancing of competing interests.
America’s First Amendment was drafted for pragmatic and political reasons, just as Canadian law reflects that nation’s greater faith in government and its institutions. It is not surprising that segments of the Canadian public cry out for a free (or free-er) press, while Americans are yelling “Enough!”
Perhaps the Homolka/Simpson tsunamis are the inevitable death rattle of the Old Media, which nervously looks about the roadside as it huffs and puffs up the Information Superhill, unable to match the pace of the frontrunner: a sophisticated public hungry for high energy and accurate trial coverage. There, in the gutters of the I-way, past the bloated carcasses of discarded stories and yesterday’s event-scenes, are clues to what every trial is about from the very beginning: a search for the truth.