Thursday, October 8, 2009

Today's Media Threatens Our Criminal Justice System

Am I the only one who wonders what has become of the media? Even the supposedly reputable news outlets have become glorified tabloids. As much as I dislike Glen Beck, Sean Hannity, and yes, even Keith Olbermann, there is one “newscaster” that I reserve the bulk of my anger for: Nancy Grace.

To put it simply, Nancy Grace is bad for America. CNN’s website describes the program as “television's only justice themed/interview/debate show, designed for those interested in the breaking crime news of the day.” I describe it as a threat to the integrity of our criminal justice system.

The recent coverage of the Annie Le murder at Yale is a prime example of what I am referring to. It was a heinous, truly sickening crime, and the culprit obviously deserves the harshest of punishments. However, the media in general, and especially Ms. Grace, often forget that defendants are presumed innocent until proven guilty. They overlook the Sixth Amendment guarantee to a fair trial (and, specifically, a trial “by an impartial jury”) and the due process guaranteed by the Fifth and Fourteenth Amendments.

The media began its assault on alleged murderer Raymond Clark III immediately upon his being named a person of interest. For starters, news quickly leaked that Mr. Clark had failed a lie detector test. Some news outlets even used the above picture of Mr. Clark dressed as a devil for Halloween. Many news shows then began hypothesizing what Mr. Clark’s motive was. I recall a guest psychologist stating that Mr. Clark was clearly a misogynist. Others claimed that he had an infatuation with Asians, as evidenced by his membership to the Asian Awareness Club in high school, or that he perhaps suffered from jealously due to the fact that he never attended any college (never mind a prestigious one such as Yale). Unfortunately, this speculative drivel was being fed to the potential juror pool.

Obviously the defendant’s constitutional rights must be balanced against the First Amendment guarantee to free speech and press. The trial judge does have an affirmative duty to limit prejudice, whether by delaying trial, changing venue, or conducting a searching voir dire. See Sheppard v. Maxwell, 384 U.S. 333, 362-63 (1966). If such a duty is not fulfilled, there is serious risk that a conviction will be reversed. Id. Justice Burger acknowledged that “[t]he extraordinary protections afforded by the First Amendment carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibility.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 560 (1976). He went on to explain that “[i]t is not asking too much to suggest that those who exercise First Amendment rights in newspapers or broadcasting enterprises direct some effort to protect the rights of an accused to a fair trial by unbiased jurors.” Id. Ultimately, however, Justice Burger held a gag order on the press unconstitutional, and it appears that Nancy Grace has a constitutional right to spew as much garbage as she would like. Id. at 568.

My question is this: Even though journalists such as Ms. Grace have a constitutional right to broadcast information that threatens a defendant’s right to a fair trial, do they not have a moral duty to avoid doing so? Go ahead and call me an idealistic law student, but I believe that just because you have a constitutional right to engage in certain types of action doesn’t necessarily mean that such action isn’t morally reprehensible. Whatever happened to journalistic integrity?


  1. The journalist perspective is different than yours. Rather, the goals diverge. A journalist wants to get information to the public at any cost regardless of the potential negative effects.(eg the pentagon papers). this question won't be resolved because it simply cant be

  2. I just hate Nancy grace for her insufferable voice

  3. All of the anchors on HNL are the same. They convict before they have all the facts. All of them are on air to promote their books. It is just sad that the general public believe every word because she was a "prosecutor"

  4. Read the 11th Circuit opinion in Stephens v. Hall. Here is a pdf version. Nancy Grace got out of the legal profession just before she was forced out. She has a long history of "playing fast and loose with ethics."

  5. The Pentagon Papers is a poor analogy with Nancy Grace. That the government understood the inevitable defeat in Vietnam and narrated a history that made that clear is something that the public should have known. Daniel Ellsberg felt that as a moral conviction; that is why he leaked the papers (at the time believing that he would go to prison for the rest of his life because of the leak).

    Nancy Grace, on the other hand, is the prime symptom of the declining quality of media generally and of the public discourse about criminal justice. Both have declined a long way; I worry about how much further they could go.

  6. Josh,

    I've read Blackbook Legal for several months now, and I just wanted to say that this is the best piece, of many, you've put together. You guys always do a fine job of addressing the issues in a thoughtful way, but this is particularly insightful and, unfortunately, astute.

  7. Here's my take on the meda coverage and the Anne Le case. The story grew as more details emerged and the world took notice. A news frenzy was almost inevitable. Annie's story was so heart breaking, and her loss so tragic, the details of the crime so sensationalistic, and the crime so senseless that it was bound to enrage and incite. As stated above, the media has different priorities then law enforcement and lawyers. I do find a certain irony in a lawyer lecturing the media on moral behavior. What frustrates the public about lawyers is their ability to remove all emotion, and often common sense, in a case and argue protocol, theory and legal minutia, in a way that often has a real impact on specific justice. Somehow in the mind of the lawyer, legal principles trump individual case justice every time. Ray Clark is guilty as sin, no, has has not been proven guilty in a court of law, but it's obvious he did commit the crimes against Annie Le. Whether he is convicted in court will not change that, or absolve him of that guilt. He will never be "innocent", but he could escape legal punishment if the system breaks down at some point on his way to a conviction. Personally I cant imagine defending him in a court of Law, and passionately trying to manipulate the system to his benefit at the expense of Annie Le and her family. It would sicken me. I'm not sure I could live with myself if I knew my actions earned him a not guilty verdict. I would not be able to justify my actions simply by telling myself I was strengthening the system by challenging it. To celebrate after work with a drink and a pat on the back while Ray Clark went free and resumed his life. Nothing will bring Annie back, her limitless potential both personal and professional is lost forever. I feel no moral pressure not to judge Ray Clark for what he has done and I'm glad the media allowed the world to hear Annie's story and take notice of what an amazing person she was. She is as deserving of the spotlight as Ray Clark is as deserving of the public scrutiny for the senseless evil he has committed. We have yet to see whether the legal system gets it right in this case, but the Media has done its job of bringing Annie's story to light, and making sure the world knew of this crime. That media pressure also kept law enforcement from phoning it in. The media also showed amazing restraint by not endlessly harassing the Le and Widansky families. Despite my arguments above, I also have no love in my heart for Nancy Grace who to me seems like an often socialpathic instigator and misery profiteer.

  8. I just hate Nancy grace for her insufferable voice

    October 8, 2009 6:45 PM

    Me too. I can never understand why any TV channle would let someone like Nancy Grace get on air. She is hideous--her voice, her mannerisms, the way she ALWAYS cuts off everyone else before they could finish, the way she twists others' arguments and puts words in their mouths. This woman is INSUFFERABLE. I turn off the TV whenever I see her face. Awful choice by CNN. I'm sure they've lost lots of viewers because of Nancy Grace.

  9. Nancy Grace is an alum of my law school. She's not perfect and has a lot of tendencies that I don't agree with, but maybe if you knew her backstory you'd understand why she's so zealous in her coverage of criminals. She decided to go into law when her fiance was brutally murdered in Atlanta. She was devastated. She then decided to go into law and dedicate herself to putting criminals behind bars. While in law school, she was solely focused on criminal law and knew that she wanted to prosecute. She's not acting as a lawyer, she's acting as a journalist now. Her journalism is both intended to spotlight horrible criminals and to get ratings. Give her a break.

  10. I have heard enough about her "back-story". Every time she is criticized for yet another ethical mishap she throws herself on his coffin. Enough. She actually cheapens his memory with her histrionics.

  11. "Anonymous said...
    I have heard enough about her "back-story". Every time she is criticized for yet another ethical mishap she throws herself on his coffin. Enough. She actually cheapens his memory with her histrionics."

    Exactly. As a former counselor for victims of violent crime -- including homicide survivors -- who is now a lawyer, I can assure you that PLENTY of people who lose loved ones to murder do not use that grief to justify spouting off BS at every turn, driving people to suicide, and treating the constitution as a doormat.

  12. Thanks for all the comments. I agree with anon @ 9:18 that the Pentagon Papers case is vastly different. The purpose of the First Amendment is to allow just that sort of information to enter the marketplace. The problem, though, is differentiating between that necessary material and the sensationalism that journalists such as Nancy Grace put out. Anytime you have censorship, you run the risk of keeping necessary information from the public. The First Amendment protects all types of speech, even Ms. Grace's, for exactly that reason. You have to accept the good with the bad. The issue I have is that the First Amendment provides so much protection/power to journalists that they have a moral (if not a fiduciary) duty to act responsibly. Ms. Grace not only violates this duty; she spits in its face.

    Daniel Robbins;

    Thanks for the kind words. It's always great to hear that our readers enjoy the material.

  13. i know this is a real old post, so my apologies for the necro, but i just wanted to say thanks for that opinion. It's real nice to have an actual court opinion to throw in somebody's face when they defend this woman, LOL. The only reason she is allowed to mischaracterize things so badly is because, for some reason, people like her are allowed to do it on air, and worse under the guise of being a competent lawyer.

    As a side note, i think it's typical of Americans that someone would say her job is to "spotlight horrible criminals" when our very justice system says they aren't criminals until after a trial and after they've been convicted. That is just completely backwards.

    Hopefully that anonymous person is not American and therefore doesn't know better.

    So if you happen to have any more opinion pages like that one about Nancy Grace, i would love that because then i would have more material to show people how much of a fraud she is.


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