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MentalDisabldLst
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I hope Garsh holds a few people in contempt and puts em in the clink for a week to give them time to think about why harassing jurors in a capital case might be a bad idea.
Aaron Hernandez Trial (Odin Lloyd)
- Thread starter Rovin Romine
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Is it illegal for the media to try to learn about jurors? I would think that sort of activity is protected by the first amendment. I would think the law prohibiting harassment -- which also has a pretty narrow definition of harassment -- would be unconstitutional if applied too restrictively. I know there are cases in which judges try to hold members of the press in contempt, but those usually go down in flames on appeal, except in rare cases in which the courtroom is partially sealed and the court makes the press members agree to certain conditions for limited access. You hope the press will act responsibly and will care about public backlash if they screw something up, but I'm not sure you can do much other than rant and rave.
smastroyin said:
It's a good question. We're not there yet. However, I believe, working through it backwards, that it would hypothetically work like this:
1) If there was a mistrial, the mistrial could happen after the court identified the reasons for it. In this hypo, the jury couldn't be fair and impartial because of their worries about harassment by the media. Either the prosecution or the defense could bring this motion, and as far as I can tell, it would result in a mistrial followed by a retrial of the case (since an outside actor caused the mistrial).
2) Once we're in that box, the court could have a contempt hearing or the state could press charges. Basically, they have the facts that show tampering by the media. There's probably a question of intent/willfulness to be determined though, apart from the effect of the actions (mistrial). For the crim proceeding, it would be the usual Beyond a Reasonable Doubt. For contempt, the same, but Judge Garsh would be the one making the findings (unless she was recused - there are many layers here.)
3) If found guilty of either, I believe (again, don't quote me), that MA allows for restitution/fines/penalties. So as a result of the direct violation, the court could order the offender to pay for the cost of the trial that they disrupted.
4) There may be precedence (caselaw dealing with similar situations) in MA which forbids or expressly allows this.
So, no need for a civil suit. However, offhand, I don't know of anything that would preclude one, but that's probably very state specific and well outside my usual thinking about legal matters. It *might* be desirable if the station dug in and fought on the contempt/crim charge. Suing the station for negligence would be a lower standard to prove.
Likely though, the threat of any of these might lead all parties to some kind of solution. Personally, I don't think it would be a bad precedent to hold the media financially accountable for a mis-trial.
I would argue that a FA restriction against the press is entirely appropriate to protect the more important government interest of conducting a fair trial.DennyDoyle'sBoil said:
DennyDoyle'sBoil said:
See my question above about MA law and juror identity protection. There's a good first amendment argument to be made, but there's a much stronger interest (I think) in protecting the identities of jurors, should they wish it. I believe protecting the identity of a sitting juror should absolutely trump first amendment rights.
We're in a gray area as to information gathering v. use of that information, but to even allow gathering information on a sitting juror might create undesirable pressures on those jurors. As we see here. Should jurors have to wear hoods and switch cars to safeguard themselves (and their families) from any inadvertent media leaks? How comfortable would a juror be, sitting on a mob/drug cartel hitman case, if they knew their IDs were in the hands of any sleazy reporter who'd care to stake them out? How would they ever know if that mysterious car following them was Joe Reporter or "someone's cousin's friend's buddy" who might like to knee-cap them? How would the court or the police investigate such, mid-trial?
If jurors are complaining about the tails, the threat of this will bring a common sense solution. Judges regard jurors like fathers their 13 year old daughters. Deliberations in a criminal cases are the holiest of holys. The last thing this judge wants to do is try this case again.MentalDisabldLst said:
So it's really pretty simple -- keep doing it, and I'll throw your ass in jail for contempt. And when your station hires Wilmer Hale or Foley to vindicate this supposed First Amendement right, I will schedule a hearing for late next week.
If you can't hold the press responsible for gathering and publishing national security secrets during war time, it's hard to see how you could burden their right to gather jury information unless they have specifically made themselves parties to the case. Judges try to hold non-parties in contemp and it usually doesn't work if they haven't appeared. Put in the overlay that there are two constitutional protections here -- freedom of the press and access to trials -- and I would think this is tough slogging. The more I think about the harassment statute the more I think it would be held unconstitutional as applied to the press except in really unusal circumstances like a member of the press saying, "vote for guilt and I will give you money." Ordinary newsgathering by the press in public places, no matter how repulsive, is not likely to be punishable.
MentalDisabldLst said:
I should be the last person quibbling about legal terminology, given my sometimes scattershot/first-draft approach to this thread. That said, this case isn't a 'capital case' - that term is used for cases where the death penalty is on the table.
My apologies for calling attention to this, but it's a term we all should use with more precision. I've seen other people generally use it to refer to a case wherein someone was killed (i.e., a 'capital case' is a case involving a murder). That can greatly fog the discussion at times.
It seems Sultan asked for another sidebar with the two jurors.
Since then, Garsh has come back, and is demanding someone from WHDH testify under oath about whether they were acting alone (she assumes they were not) and wants someone there by 1215 or she will bar them from the courtroom.
Also, there was another clarification on the weapons charges requested, about whether he had to have owned the ammo on the day the warrant was executed? Not sure I understand completely.
I kind of assume the media stalking distraction will delay a verdict by a day or more. Unless they are just dotting i's on all of the charges and waiting for this to get settled. Seems it is possible that the defense may ask to dismiss the two jurors as well? Not quite sure if everything is on hold now until after WHDH shows up to discuss with judge and both attorneys.
Since then, Garsh has come back, and is demanding someone from WHDH testify under oath about whether they were acting alone (she assumes they were not) and wants someone there by 1215 or she will bar them from the courtroom.
Also, there was another clarification on the weapons charges requested, about whether he had to have owned the ammo on the day the warrant was executed? Not sure I understand completely.
I kind of assume the media stalking distraction will delay a verdict by a day or more. Unless they are just dotting i's on all of the charges and waiting for this to get settled. Seems it is possible that the defense may ask to dismiss the two jurors as well? Not quite sure if everything is on hold now until after WHDH shows up to discuss with judge and both attorneys.
dcmissle said:
I agree with the first part. The station isn't going to want to be turned into a pariah and when the adults at the station hear what the guys on the ground were doing, common sense should govern and they likely will knock it off.
As for contempt, that's just not how it works. To hold someone in civil contempt you need jurisdiction over them, first of all. That's hard if they aren't a party. Second, you can only do it because you need to in order to get them to comply with a court order -- that is, to do or not do something. When that's applied to the press, it's almost always going to look like a "prior restraint," which is virtually per se unconstitutional. A good first amendment lawyer would have them out by lunch. I've had two cases like this -- different context but I know the law a bit. They involved trials in which trade secret information was being discussed, where there were protective orders sealing the court for the trade secret testimony but a local station did a bunch of weasel stuff (including stuff they told the court they wouldn't) to try to get around the restrictions. The matter went up and down to the court of appeals twice in less than a day, and the deck was very heavily stacked in favor of the press. Two contempt orders were vacated.
Is this an example where the 6th Amendment tops the 1st? I would imagine these restriction don't only apply to the media, but to everyone else (the camera carrying/social media active public) as well.
I only had to deal with covering trials as a student at UF, most were local in nature and quite easy, just don't make any noise and all was fine with the judge. The Danny Rolling trial was a completely different beast. It was a regional, almost national, clustertuck. Technology, not just from a media perspective, is so much different.
Just think about the ethical practice of not publishing the names of rape victims/accusers. Thanks to social media and alternative news-sites, keeping those names out of the public view has almost reached the point of being ineffective, yet still noble policy, unless unlikely occurs and the accusation is false.
I only had to deal with covering trials as a student at UF, most were local in nature and quite easy, just don't make any noise and all was fine with the judge. The Danny Rolling trial was a completely different beast. It was a regional, almost national, clustertuck. Technology, not just from a media perspective, is so much different.
Just think about the ethical practice of not publishing the names of rape victims/accusers. Thanks to social media and alternative news-sites, keeping those names out of the public view has almost reached the point of being ineffective, yet still noble policy, unless unlikely occurs and the accusation is false.
I would think my right to feel safe as a juror trumps the needs of a news station to make more money.DennyDoyle'sBoil said:
A separate FA contempt case/battle aside. Doesn't the judge have the authority to protect the integrity of this trial and reevaluate the current media access policy?
Would there be an added motivation in the future with such cases to take jury access out of the equation by sequestering them? That would seem like a more likely least restrictive solution, rather that banning all media from coverage.
Why wasn't this jury sequestered? It must have been on the table.
Would there be an added motivation in the future with such cases to take jury access out of the equation by sequestering them? That would seem like a more likely least restrictive solution, rather that banning all media from coverage.
Why wasn't this jury sequestered? It must have been on the table.
NortheasternPJ said:
I have a colleague who was an alternate juror for this case:
http://www.nytimes.com/2013/04/17/nyregion/mistrial-declared-in-murder-trial-of-david-tarloff.html?_r=0
It was a murder case about a guy who chopped up his former therapist with a meat cleaver. The trial lasted 6 weeks. The jury deliberated for more than a week and then it was a hung jury and a mistrial.
My friend was seriously frazzled by the whole experience. She had to sit through the entire awful process and then could not participate in the deliberation... which ended up with no consensus so the whole endeavor went into the toilet.
I don't think your point of view is unreasonable. I'd probably agree with it at that level of abstraction.DennyDoyle'sBoil said:
However, I think the distinction is that publishing a "national security secret" can always be justified (to some extent) in that the people of the US have the right to be informed of what their leaders are doing, so they can exercise their rights in the voting box. I believe in that 100% in the abstract, but would carve out the right of the government to protect troops/assets/etc. in ongoing operations.
On the other hand, there's no "good" that can come of the public knowing the identity of a sitting juror. (Without exaggeration, I honestly believe that the only possibilities are negative.) We have to remember the state knows the IDs of the sitting jurors, as does the Defense - so there's investigation as to the jury on both sides. So, if there's any kind of hanky-panky, the players who would address it are already in the loop. Additionally, trials are open, so the media can cover what actually happens at trial. They can even sit there and watch the jury. The defense (or state) can also always go to the media (post trial) with anything the public "needs to know." And, of course, the verdict isn't final (see upthread), especially if there's some kind of gross misconduct. So there's plenty of transparency.
As a practical matter, you may well be right on the viability of contempt charges if contested/appealed. It depends on the court's order, and the facts of what happened; there's a spectrum of "maybe followed us down the block in a newsvan" v. "took pictures of me" v. "trailed me to my house." What's "information gathering" and what's "harassment" or violation of a legitimate court order? (Also, keep in mind the basic rule that the way to contest an illegal court order is through an appeal to a higher authority, not to simply violate the order because you feel you're justified in doing so.) Regardless of the ultimate outcome, there's also the mere threat of contempt and the cost of the proceedings - who wants to go through that? And yes, maybe you win on appeal, but it's hard to imagine a less sympathetic media issue to put in front of a judge. Your direct competitors are covering it.
Just one other small tidbit, as this all plays out, that I learned only recently. Most smaller press outlets pay to belong to a group of First Amendment plumbers that will essentially parachute in, in a pinch. So, if you're some local reporter and a judge in the middle of the Everglades tells you to get your toothbrush because he's holding you in contempt for failing to reveal a source, they come flying in. This is unlikely to escalate, I wouldn't think, here, but I find these first amendment overlay issues to be fascinating, so it will be interesting to watch. I think the judge likely has jurisdiction here to bar the station from the courtroom or maybe even courthouse grounds, and while they could probably get that reversed eventually, since we're at a pretty critical time I doubt they'll want that right now, so likely they will comply unless they decide there's some crucial first amendment principle they need to fight for.
Isn't the real concern that this may have been occurring throughout in an attempt to locate jurors for post-trial actual harassment?
If I was on the jury, do members of the media know where I live, would be my concern.
If I was on the jury, do members of the media know where I live, would be my concern.
WWII Felger @WWIIFelger
Steve Burton followed some jurors home too but fortunately his name and address were on his collar. #whosagoodboy
Steve Burton followed some jurors home too but fortunately his name and address were on his collar. #whosagoodboy
As RR indicated, the station may have signed on to an agreement re press coverage. If so, you have the station by the throat.DennyDoyle said:
And where is the protected speech? As I understand things, they are just chasing jurors in a car. Even these reporters know damn well not to talk to jurors about the deliberations DURING the deliberations, which undoubtedly WOULD result in criminal charges under the statute I posted.
DennyDoyle'sBoil said:
I've handled both civil and criminal contempt cases, but none dealing with press/media issues. I believe we're most likely talking about indirect criminal contempt. (Perhaps unless there was some kind of court order the station agreed to be bound by in exchange for being able to televise the trial.)
For the curious, criminal contempt has more procedural protections and a higher standard of proof. It's more like a criminal charge one faces for disrespecting or interfering with the court's functions. Criminal contempt penalties are punitive; regardless of if the wrongdoer has changed their behavior, they're going to be punished. Civil contempt is much looser procedurally (although there are some protections). The penalties for civil contempt are coercive, which means they're designed to make someone follow an order. They can include fines and incarceration. When you read about someone being jailed *until* they do something, you're usually reading about civil contempt. (Civil contempt incarceration can theoretically be forever over a minor issue. It's really about following a valid court order or choosing to pay the piper until you do - the phrase often used is "the defendant holds the keys to their own release.")
Apparently the issue of Juror Identification has recently been decided by the MA Supreme Judicial Court. Globe Article: http://www.bostonglobe.com/metro/2015/01/27/sjc-names-jurors-are-public-records-and-must-included-criminal-case-files/SYF0LYvBjSQOVMiM24XAXK/story.html
Apparently the rule is the juror's names and addresses are publicly available following the trial. There's some disagreement as to how that ought to be handled procedurally. The article implies that the juror information can be withheld if the trial court makes a finding of good cause. (Basically that covers the hit-man situation.)
Here's the text of the opinion: https://www.socialaw.com/services/slip-opinions/slip-opinion-details/commonwealth-vs.-nathaniel-fujita
***
(Note: this does not go to following/photographing a sitting jury member.)
Apparently the rule is the juror's names and addresses are publicly available following the trial. There's some disagreement as to how that ought to be handled procedurally. The article implies that the juror information can be withheld if the trial court makes a finding of good cause. (Basically that covers the hit-man situation.)
Here's the text of the opinion: https://www.socialaw.com/services/slip-opinions/slip-opinion-details/commonwealth-vs.-nathaniel-fujita
***
(Note: this does not go to following/photographing a sitting jury member.)
I'm always wary of a sports reporter having more complete information than, say, AP, but there are some relevant quotes here
http://sports.yahoo.com/news/tv-crew-s-action-threatens-mistrial-in-aaron-hernandez-case-143822715.html
Edit: Here's one part
Garsh said it is a felony in Massachusetts to question or harass a juror at any time during the trial and reminded the assembled media of the policies.
"To all of you," Garsh said to the media, "you cannot approach, question, harass [or] follow any juror."
http://sports.yahoo.com/news/tv-crew-s-action-threatens-mistrial-in-aaron-hernandez-case-143822715.html
Edit: Here's one part
Garsh said it is a felony in Massachusetts to question or harass a juror at any time during the trial and reminded the assembled media of the policies.
"To all of you," Garsh said to the media, "you cannot approach, question, harass [or] follow any juror."
Here is a Colorado appellate decision affirming reporters being held in contempt for talking to jurors after proceedings had begun -- and the court affirmed monetary sanctions that reflected the cost of several additional trial days and the cost of preparing the contempt motion.smastroyin said:
http://www.leagle.com/decision/19852022703P2d1319_11979
WHDH granted a time extension so their counsel could be present, apparently.
They also issued a statement of no wrongdoing.
They also issued a statement of no wrongdoing.
"Garsh questioned WHDH reporter Bryon Barnett, who was in court Thursday morning but was not in the van at the time of the incident. She instructed him to find out what happened and explain it to her later. She threatened to ban WHDH from covering the trial going forward.Kenny F'ing Powers said:
"This is a very serious matter," Garsh said. "So Ill give you the opportunity to do some investigation."
Hernandez spun his chair around and watched intently as Barnett tried to give as much of an explanation as he could.
Garsh said it is a felony in Massachusetts to question or harass a juror at any time during the trial and reminded the assembled media of the policies.
"To all of you," Garsh said to the media, "you cannot approach, question, harass [or] follow any juror."'
smastroyin said:
This should be amusing, one way or the other. Is anyone streaming this? My usual link isn't working for me. I assume WHDH isn't going to. . .
(Also, driving to emergency hearings like this sucks. In the context of my practice, it's usually for an individual (or I'm the one calling the hearing.) I've never represented a large company in this situation, but the small ones tend to go into a dither when they're quickly pushed for information. I'm sorry I didn't return your call. Joe will talk to Bob and get back to you. What do you mean, "testify?" Me? I may have to be there? An affidavit? Uh. Herm. When I said I knew what happened, I meant that Ken told me something. But Joe's your guy. Unless Bob calls first. But Bob's at lunch. In Ecuador. Can't you tell the judge what happened? Can't you just get the judge to do this next week?)
Juror statement is out (6 parts):
https://twitter.com/NBC10_Adam/status/586212275964477440/photo/1
Jury is on lunch break, not sure if they are needed for this hearing. Return at 2 PM.
https://twitter.com/NBC10_Adam/status/586212275964477440/photo/1
Jury is on lunch break, not sure if they are needed for this hearing. Return at 2 PM.
Rovin Romine said:
Can see it live here.
http://www.myfoxboston.com/category/267951/aaron-hernandez-livestream
Wow if this is true, I will have to be more vigilant about getting out. (I'm one of those people they like having on juries)Rovin Romine said:
Driver was sworn in and on the stand. Questioned by WHDH lawyer then Judge Garsh.
Said he wasn't directly instructed but knew that channel 7 wanted to know where the bus the jurors were on went to, basically where they parked their cars. Said he never talked to them or had any interaction with them in anyway. He did not take down any of their licence plates or take any pictures. Just put their parking lot location into his gps.
After the gentleman left the stand the WHDH lawyer stated that the driver was trying to find where the jurors would be so that they could be first to contact the jurors once they come to a verdict and can be contacted by the media. He had no intent and made no effort to contact the jurors.
Said he wasn't directly instructed but knew that channel 7 wanted to know where the bus the jurors were on went to, basically where they parked their cars. Said he never talked to them or had any interaction with them in anyway. He did not take down any of their licence plates or take any pictures. Just put their parking lot location into his gps.
After the gentleman left the stand the WHDH lawyer stated that the driver was trying to find where the jurors would be so that they could be first to contact the jurors once they come to a verdict and can be contacted by the media. He had no intent and made no effort to contact the jurors.
I thought she handled that well, minus the constant "uhs". Got her point across without burning them down.
Well, that's not so bad. I had thought the driver actually followed the jurors and/or took photographs of them. The GPS explanation sounds plausible. Although it's a little weird the driver called attention to himself with his actions. If he just sat there or observed from a distance this probably wouldn't have come to a head.
I expect the media will be more careful now.
And we know that at least two members of the jury are observant/perceptive and pretty forthright. They also didn't use this as an excuse to bail on the process.
I expect the media will be more careful now.
And we know that at least two members of the jury are observant/perceptive and pretty forthright. They also didn't use this as an excuse to bail on the process.
It wouldn't surprise me if a dozen other news organizations already had that parking lot ID'd and stand ready to stake it out after a verdict is reached. This WHDH guy seems like a clod who just wasn't very circumspect.
Rovin Romine said:
He also stated that he put the courthouse location back into his GPS which caused him to circle around the parking lot and return the way he came. This is what seemed to call attention to the van.
Also, should one of our ap developers want to put this in play, I'd like to take this moment to note the world really needs something like a "Let's buy that guy/gal a beer/coffee ap." It would be a quick way to zip out a kudo to someone - not cash per se, but a voucher for a purely recreational reward.
If I had one on my phone I'd send one to Fraga. He's done a great job covering this. I know it's his job, but still. Oh - and if the ap happens, I want 5%. And a beer. Or a coffee.
If I had one on my phone I'd send one to Fraga. He's done a great job covering this. I know it's his job, but still. Oh - and if the ap happens, I want 5%. And a beer. Or a coffee.
Someone needs to suggest this to Peter King so he can take credit for it. It has everything he loves. Kudos, beer, and coffee.Rovin Romine said:
P.S. I think would all send you a kudoriffic beer or coffee for your input here RR.
Rovin Romine said:
At this point they probably want to see it through.
Out of curiosity, why do the press feel they have a right to contact with juries? If it's just for an interview after the trial can't they get that at the courthouse? I would be pretty upset if I were on the Hernandez trial and had people following me home to talk to me knowing that several of Hernandez's friends who participated in the killings were still out and about.
Because this is crack cocaine for news outlets, which would like an exclusive and barring that first dibs.moly99 said:
Had a high profile civil trial in another state a couple of years ago that had extensive coverage in that state. You should have seen the look on the reporters' faces when the judge told the jurors they had no obligation to speak to the press -- or the attorneys for that matter -- and that the courtroom deputy would squire them out a side door after the verdict had been read.
Nancy Grace nation we are.
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