McCafferty Trial Raises Interesting Media Issues

The Enquirer describes an ongoing dispute between the local media and the Campbell County (Ky) Circuit Court over whether and to what extent the media should be permitted to broadcast the trial of Cheryl McCafferty, who is accused of murdering her husband.

Based on the Enquirer's reporting, it appears that the following happened: Judge Julie Reinhardt Ward initially agreed to permit Dateline NBC to tape the entire trial, and then to broadcast it (in all likelihood, condensed to run in an hour) at some later time. Dateline set up its cameras and subsequently agreed to act as something of a pool photographer, with their video being fed live to a television set up in a media room in the courthouse.

Apparently, the local media then announced its intention to pick up the pool feed and either broadcast it or "stream" it (broadcast it on the internet) live. It seems others intended to blog the trial, perhaps even from the courtroom. Judge Ward determined that live coverage was not in the interest of justice (the Enquirer doesn't tell us why), and pulled the plug on everything, ordering Dateline out of the courtroom and banning all electronic devices.

The situation raises interesting questions about what the right to a public trial really means. (Remember, the public trial right is not just--or even primarily--about the press's right to cover a trial, but is instead about the defendant's Sixth Amendment right to be publicly tried). I have little doubt that Judge Ward can do exactly what she's done: ban all recording devices from her courtroom. Assuming that Kentucky law doesn't provide otherwise, the federal courts have declined to recognize a right (either for a criminal defendant under the Sixth Amendment or the media under the First) to have a publicly broadcast trial. That's why federal courts remain off-limits to televised trials. Whether such blanket prohibitions are a good idea is a question I leave unanswered at this time.

I'm also fairly certain that Judge Ward could impose limits on the methods of "broadcasting" a trial. I would expect a judge to seriously consider banning live-blogging a trial from a courtroom. This isn't because "bloggers" or journalists who blog are somehow less important, but instead because of the disruptive effect people typing on their cellphones or laptops could have during trial. The jury could be distracted by this, and could also start to believe that when it sees a member of the media typing away, something important may have just happened. It's not clear, however, why the judge would ban live-blogging the video feed from the media room, where the court would not be disturbed.

I'm not sure, however, that Judge Ward can do what I think she might like to: permit Dateline NBC to record the proceedings but prohibit live broadcasts. This is far from my area of expertise, but it seems that once the court opens the proceedings to cameras, it has to permit the media to do as it wishes with the video. If that means live TV coverage or live streaming on the web, then so be it. Moreover, it's not clear what the fear is: that the jury would be tainted when it goes home at night? Jurors are supposed to avoid contact with those who would try to discuss the trial with them, and the law presumes that jurors follow their instructions. And if that's really a fear, then the jury should be sequestered: nothing the judge can do will prevent the local media from reporting on what happens (and in some cases, likely mis-reporting what happens) each day.

Of course, that's just my tentative take and I haven't taken the time to research the issue. But it's an interesting conundrum the court and the media have created, nonetheless. And one has to feel bad for the jurors, who were in court for all of ten minutes today. Hope they brought their Sudoku.