Ordered to leave a murder trial, WCCO’s Murphy fights back

A courtroom with 33 seats. Waiting outside, five journalists, 32 members of a murder victim’s family, and five people connected to the defendants.

Who should get in?

Despite being among the first people in the Hennepin County courtroom, two of the journalists, WCCO-TV’s Esme Murphy and Northwest Community Television’s Mike Johnson, were told to leave by the prosecutors’ victim’s advocate.  The journalists say the action — backed up by Judge Janet Poston — was unprecedented in their experience.

Esme Murphy
Esme Murphy

A furious Murphy — who later blogged about the dispute — risked a contempt citation by “inappropriately” complaining to the judge in open court, a court spokeswoman asserts. (As much fun as it is to imagine an “And Justice For All” moment, witnesses say Murphy’s request was diplomatic, if not exactly welcome.)

That the case attracted media attention should not have been a surprise: it is a nightmare. Jamis Marks was killed early New Year’s Day 2008 after two men allegedly invaded his Robbinsdale home and threatened to rape his wife Heather.

The media was not barred from the opening day arguments; reporters for Channel 5, Channel 9 and the Star Tribune stayed. However, Murphy argues that the public is best represented by more media voices.

“The public has an interest and believe me, the issues here are really exceptional,” she says. “There are questions about the key witnesses, for example. This case deserves all the scrutiny it can get.”

Interestingly, while Murphy contends the prosecutors’ representatives were the ones enforcing her exclusion, defense attorney Michael Colich argued in court for accommodating her and Johnson.

A temporary fix
By the trial’s second day, the situation had been remedied. The proceedings were moved to a bigger courtroom, and Murphy and her colleagues were all able to witness the goings-on. But journalists say the blowup, while exceptional, is not isolated.

“It’s an ongoing problem,” says the Star Tribune’s Rochelle Olson, who covered the first-day proceedings. “Some judges set aside seats for media, some don’t. In this case, [Judge Janet] Poston had set aside three sets. Well, this was a BIG case. BIG deal. Judge could have put in extra chairs as some judges do. But Poston just kicked them out. I do think in general, judges need to do a better job accommodating the media. The media is there as a proxy for the public, not just for kicks.”

Another reporter, who was not authorized by employers to talk, says there was a similar tussle during University of Minnesota football star Dominic Jones’ rape trial. “They moved it only after we raised a stink,” says the reporter, noting the media had to go over the trial judge’s head to the chief judge.

Why not accommodate?
Olson questions why Poston could not simply have brought in two folding chairs for Murphy and Johnson. Court spokeswoman Nancy Peters says that wasn’t possible “because of a safety issue — someone might try to bolt, or lunge. There are high emotions in the courtroom. Deputies stand in the aisle, and you have to have proper aisle space.”

Other remedies were not available, Peters says. The court has no video hookup to show proceedings in an overflow room, and a bigger courtroom was not available because prosecutors hadn’t told officials about their overflow contingent in time.

“Our courtrooms are not always huge and glamorous, like the federal courts,” Peters says. “We’re in the Government Center, and it’s 35 years old. There are only X numbers of large courtrooms. I’m not sure Esme is here often enough to know that.”

Murphy — who says she covers three to four trials in the building per year, plus a handful elsewhere — brushes off the ignorance charge.  On her blog, she said she was told she was excluded “because I had not made a ‘reservation’” — something she and other reporters say has never been a requirement.

Peters insists Murphy misunderstood. There’s no “reservation” system; rather, three media seats are always reserved: one for print, one for radio, one for TV. However, there’s good reason reporters are confused: Peters acknowledges the policy is unwritten.

Journalists versus victims?
In an era where fewer reporters cover everyday government work, the courts have an embarrassment of riches, at least for sensational trials. Given the pageview potential in the blogosphere, it’s not hard to envision the courts contending with even bigger journalist crowds down the line.

If it comes down to victims’ family (at least beyond a dozen or so family members) versus journalists, the media will probably lose. And of course, herd coverage of trials has not always produced more light, despite undeniable heat.

Still, one reporter reminded me that it’s the defendant’s trial — their Constitutional rights are at stake. Beyond the emotions, the public might regret having fewer watchdogs for the most questionable cases.

There is a time-honored way to accommodate a media overflow: pool coverage, where a few reporters share their work with many. Peters says she suggested to Murphy that reporters work out such an arrangement, and Murphy “rolled her eyes.”

Responds Murphy: “That’s because, in my experience, the people doing the excluding” — in other words, court officials — “need to establish the pool before the proceedings. They had only three seats allocated, but none of us had been notified.”

Of course, if the courts simply televised trials, we could all see what’s going on. Peters notes the Fourth Judicial Circuit (Hennepin County) is readying for a pilot program to test cameras’ influences on trials.

Anyone who knows Murphy knows she is nothing if not aggressive, and she is unbowed. “Limiting press access is a serious matter, but I wouldn’t hesitate to risk contempt again,” she insists. “If I had not made a huge stink, nothing would’ve changed.”

In a subsequent blog post, Murphy said she and WCCO news director Scott Libin had “very productive” discussions with Chief Judge James Swenson.

That will produce a written policy, though perhaps more journalists will find themselves outside the courtroom looking in. “News media are forewarned,” Murphy concluded. “Pool situations may be the norm in days to come. Stay tuned.”

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Comments (15)

  1. Submitted by John Olson on 09/03/2009 - 11:47 am.

    I’m with Ms. Murphy on this one. Two other TV stations are allowed in, but hers is not. If a reporter for the Pioneer Press showed up, would they have been denied access in favor of the Strib (which was there), or would one of the two TV stations have to surrender their seat?

    If Murphy had said she was doing it under the ‘CCO radio umbrella, would she have been given a seat?

    And I share your concern over the bloggers wanting access too. What precedents (if any) are there in other markets that might be viable?

  2. Submitted by esme murphy on 09/03/2009 - 12:54 pm.

    I think the real answer here is that is long past due for Minnesota courts to have cameras in their courtrooms. This would allow the public even greater access to court proceedings.

  3. Submitted by Amanda Ellerbusch on 09/03/2009 - 01:51 pm.

    Don’t you have a fact checker? Jamis Marks widow’s name is Heather, not Amy. Maybe that’s the whole problem right there. Obviously your focus is not on the victims or their families, its about getting a good story. Please, try to look at this through the perspective of the victim’s family.

  4. Submitted by David Brauer on 09/03/2009 - 02:04 pm.

    Amanda, we actually don’t have a fact-checker, so this one’s on me. It’s been fixed, and my apologies.

    As for your larger point, as I acknowledged, the media loses out any time they are put up against the victim’s families. That doesn’t mean I don’t sympathize, but I was trying to get people to look at this from a less-familiar perspective. There are other interests that must be balanced.

    By the way, some of the victim’s family was not allowed in (or they were forced to cycle in and out), so a bigger courtroom – or satellite accommodations — would have helped both the media AND the family.

  5. Submitted by Brenden Schaaf on 09/03/2009 - 03:06 pm.

    Agree that cameras should just be allowed in the courtrooms. Problem solved.

  6. Submitted by Jane Kirtley on 09/03/2009 - 04:52 pm.

    I have to disagree with one point made in this piece. It is NOT just “the defendant’s trial.” Yes, the defendant has a 6th Amendment right to a public trial. But as the US Supreme Court ruled in Richmond Newspapers v. Virginia in 1980, the public AND the press also have 1st Amendment rights of access to criminal trials. This isn’t an “absolute” right of access, but it a presumptive one, constitutionally-based, which means there has to be a very compelling reason to override it.
    The high court has made it very clear that closing a trial just because media or public presence might upset victims or witnesses, or even because the defendant wants it closed (which I recognize wasn’t the case here)is not sufficient to outweigh the presumption that criminal trials are to be open to the press and the public. The press is viewed as the surrogate for the public, and the idea is that the presence of one journalist is equivalent to many members of the public who otherwise couldn’t attend. Many courts around the country make the effort to accommodate the press in high-profile cases. Press pools are better than nothing, but they aren’t ideal.
    One other point: The proposed pilot project to experiment with cameras in the Minnesota trial courts will probably not be limited to Hennepin County. The pilot project is currently being designed under the supervision of an advisory committee of the state Supreme Court, and will most likely be launched in multiple jurisdictions within the state.

  7. Submitted by Bob Spaulding on 09/04/2009 - 07:39 am.

    I’ve got to disagree with the idea of cameras in local courtrooms. I’m glad to have some reporting in courts – and the story described here seems worth reporting on. But it’s a question of balancing reporting resources.

    Over the last two decades, as local ownership has faded, and the focus has turned to profits, Twin Cities TV stations have substituted an increased focus on crime and justice for a more balanced reflection of what happens in our communities. WCCO is among the less crime-obsessed, but has hardly been immune from changes in the larger media landscape.

    Seems to me the TV dial already provides ample evidence cameras will tend to amplify the sort of gawking sensationalism you see on Court TV, or in any of several overblown California-style trials covered nationally. That may be fine for other communities, but it will be at odds with values of Midwestern modesty and community-mindedness that average Minnesotans of all stripes hold.

    The impacts of cameras will be slow to come – likely measured in years and decades – in ways the current experiment won’t capture. Experience elsewhere suggests it is likely to change our media, and in turn our civic culture, and not for the better.

    I have a lot of respect for Esme Murphy – I always look forward to a thoughtful segment when she’s on (keep it up!). She’s right on the issue at the heart of this post, but I disagree when it comes to cameras in court. I personally hope the Court will listen to the many of us without a direct stake in the camera decision before making a final judgement.

    Anyhow, a side issue, but I thought it deserved a comment I hadn’t yet read. Thanks for a good discussion.

  8. Submitted by John O'Sullivan on 09/04/2009 - 09:17 am.

    Bob, I think you may be giving the proposed camera program too much credence. My assumption is that these cameras will hardly be the equivalent of CourtTV, they’ll likely just be a static camera pointed at the judge, perhaps remotely controlled, perhaps with an operator, but it will likely be about as compelling as a city council meeting broadcast on public access.

    It’s for that reason that I have trouble with the argument that TV cameras would solve all our problems. They still don’t replace the media’s physical presence in the room. What happens on those rare occasions when something unusual happens in the courtroom? A lawyer is assaulted, a witness leaves the courtroom, etc. These things might not be covered by a camera, or worse yet, the connection may be intentionally interrupted. Court cameras are a good idea, but not a replacement for journalists in the courtroom.

  9. Submitted by Paul Gustafson on 09/04/2009 - 09:55 am.

    I disclose upfront that I now work for the Ramsey County Attorney’s Office. But these opinions are my own, and come from covering courts at the Strib for 17 years. I left the paper in 2007.

    Small courtrooms being scheduled for high-profile criminal trials is a problem. I think that largely can be remedied with some foresight and communications between the courts and the media. News organizations can register their intent to cover a major trial ahead of time, and the courts, I would think, can schedule a larger courtroom in anticipation. Not a perfect solution, but nothing is.

    But another issue was raised here: cameras in the courtroom.

    I applaud experiments. Having said that – and I recognize that I am out of the mainstream of journalistic thinking here – I believe judges and the public have good reason to be concerned about video coverage of criminal trials.

    Remember the O.J. trial in California? Judges and lawyers do. A debacle. And I have to believe that TV coverage was part of the problem. In my opinion, the judge’s conduct in that trial was affected by the cameras.

    Potentially even worse, how does video coverage affect witnesses or jurors? I know there are strictures in some jurisdictions that allow cameras in courtrooms on showing some witnesses or jurors. But are they enforced, and even if they are, can we guarantee the mere presence of cameras does not have an adverse affect on the truth-seeking process that a trial is supposed to be?

    With video coverage, are some witnesses going to treat their time on the witness stand as a “Reality TV” moment – their one and only appearance on the Big Public Stage? Or will they fear that having their testimony broadcast to thousands of people could bring retribution from persons who might not like what they say?

    Would you want to take that chance if you were the defendant? Or the victim?

    I don’t think the public should take the chance that the justice system will be compromised by video coverage of trials when it does not have to. I believe the potential for harm outweighs the potential public benefit.

    I have no problem with a video feed to a separate room in a courthouse to accomodate overflow groups of reporters. In fact, that was done in the tobacco trial here in Minnesota, and it seemed to work well for everyone.

    Press access can be accomodated by ensuring that reporters can witness trials – in person preferably or by video feeds to a nearby room – without endangering the fair trial process by allowing video coverage.

  10. Submitted by Jane Kirtley on 09/04/2009 - 11:33 am.

    With all due respect, these are the same old tired arguments against cameras, and they are not supported by experience. The reality is that the vast majority of states allow cameras in the courtroom. Florida has allowed them for many, many years — in fact, there’s a presumption of access by cameras. The sky has not fallen.

    The US Supreme Court ruled that the presence of cameras does not, in itself, compromise a defendant’s 6th Amendment rights. In all jurisdictions that I’m aware of that permit cameras, judges still have discretion to exclude cameras from parts of trials, provided good cause is shown. But the difference is that the litigants or parties don’t have absolute veto power, as they do in Minnesota now.

    The OJ Simpson case was more than 10 years ago. Many of the complaints about the media coverage of that case stem from the media reports that were generated outside the courtroom, in part because California rules on attorney conduct, at the time, allowed lawyers much more leeway in conducting their extra-judicial courthouse steps posturing than is now the case (or is the case in Minnesota).

    I simply don’t understand why judges and lawyers, who supposedly try cases and issue rulings based on evidence, choose to ignore the evidence of how cameras in the courts have been utilized successfully for many years in other jurisdictions, and instead allow a parade of hypothetical and speculative “what-ifs” to control the discussion. That’s not rational.

    In any event, the Minnesota pilot project, which is still being designed, will, if it ever happens, include a mechanism for social scientists to measure the impact of cameras. There is a whole array of cases that will be excluded from the experiment, on a variety of grounds.

  11. Submitted by Bob Spaulding on 09/04/2009 - 01:33 pm.

    While I appreciate the discussion, here’s where I don’t follow the argument. If a reporter has compelling videotape from a trial instead of a sketch and a transcript, that reporter and that station is going to tend to dedicate more time, possibly a good deal more, to the personal details of a trial. This is, after all, TV news, where compelling videotape is key.

    Our local media dedicates hugely disproportionate attention to particular crimes and particular cases already – the most sensational cases with the best storylines. To some extent that’s natural for TV news. Already, we’ve heard a ton of information on trials for people like Dru Sjodin and Katie Poirer over the last ten years. I feel for the families of both victims. But I feel for lots of other people in society too, and covering those trials in such painstaking detail meant other news was not covered much or at all.

    Many people I know thought the Dru Sjodin trial was edging uncomfortably close to a local and national frenzy. Cameras were there for only initial court proceedings. Yes, Dru’s mother had a good experience, but that’s just one person. What if we could know the defendant in some future such case were truly not guilty? What would televising the courtroom drama do to that person’s life? Seems to me the cameras and media would risk inflicting great additional damage.

    We have a strong and unique civic culture in Minnesota. Allowing for regional policy differences rather than a homogeneity in policy and civic culture can often be a net positive for democracy.

    Anyhow, good discussion. Thanks, all.

  12. Submitted by Paul Gustafson on 09/05/2009 - 02:56 pm.

    A couple of thoughts about Professor Kirtley’s last comments here about cameras in the courtroom:

    She calls my concerns “old tired arguments.” But I believe those concerns are shared by many Minnesota judges. Were it not so, the rules in Minnesota courts concerning cameras in the courtroom would be different.

    The judges are the folks the media has to win over. With all due respect, dismissive rhetoric will not do it.

    The fact that many other states have broader camera court access rules should make us consider and examine why they do so. But that fact alone does not make those rules right, or prudent.

    Also, the fact that the U.S. Supreme Court said the presence of cameras in courtrooms alone doesn’t compromise a defendant’s 6th Amendment rights does not control what Minnesota deems to be right or prudent in its’ state courts.

    It’s because the Minnesota Constitution and some other state constitutions bestow broader rights than are guaranteed by the U.S. Constitution as interpreted by the U.S. Supreme Court – the court that said for decades that Separate But Equal was the law.

    The Minnesota Supreme Court has shown in its rulings that it does find broader protections of rights in this state’s constitution than those found by the U.S. Supreme Court in the U.S. Constitution.

    The quality of justice accorded by the court systems of the different states varies widely. The press has documented that. And Minnesota’s court system has received high marks. So, we should ask, why is Minnesota is so concerned about cameras in the courts? Could it be that we are more serious about fair trials than other states?

    The burden of proof really is on the media to show that cameras in the courtroom do not adversely affect the fairness of a criminal trial. And I think the standard of proof should be what a criminal defendant faces: beyond a reasonable doubt.

  13. Submitted by Paul Gustafson on 09/07/2009 - 01:13 pm.

    The Wisconsin Courts have rules of media access that I think are sensible.

    They are a bit broader than in Minnesota in that they do not give a veto to the parties. But they give the judge the right to determine what is allowable.

    Here are Wisconsin’s core access rules:

    SCR 61.11 Prohibition of photographing at request of participant.

    (1) A trial judge may for cause prohibit the audio recording and the photographing of a participant with a film, videotape or still camera on the judge’s own motion or on the request of a participant in a court proceeding. In cases involving the victims of crimes, including sex crimes, police informants, undercover agents, relocated witnesses and juveniles, and in evidentiary suppression hearings, divorce proceedings and cases involving trade secrets, a presumption of validity attends the requests; the trial judge shall exercise a broad discretion in deciding whether there is cause for prohibition. This list of requests which enjoy the presumption is not exclusive; the judge may in his or her discretion find cause in comparable situations.

    (2) Individual jurors shall not be photographed, except in instances in which a juror or jurors consent. In courtrooms where photography is impossible without including the jury as part of the unavoidable background, the photography is permitted, but close-ups which clearly identify individual jurors are prohibited. Trial judges shall enforce this subsection for the purpose of providing maximum protection for jury anonymity.

    A last note:

    We are not talking about the press being excluded from general court proceedings. Glitches? Yes. And I absolutely agree with Esme on the right of reporters to be in a courtroom absent some extraordinary circumstance. A small courtroom does not quality as that. Shame on the courts when that happens.

    But the issue of cameras in the courts implicates competing constitutional rights. The First Amendment is not only one.

    And let’s be clear. 99.99% of the time, reporters can go into a criminal trial and report what they see and hear. Not exactly suppression of the truth, is it?

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