Saturation TV imperils the right to a fair trial
Television exposure of the total pretrial proceedings in the O.J. Simpson case is destructive of the delicate balance that is necessary to a fair trial. Weeks of coverage in all major networks has allowed both defense and prosecution to try their case to the public, rather than to an impartial jury. The current "knock-knock" joke that is more sad than amusing ends with ''O.J. Who?" followed by the punch line, "You're on the jury!"
Cable television has shown gavel-to-gavel coverage of a few notorious cases, but those programs covered the trial itself after the jury was seated. In those cases the judge could by various measures insulate the jury from the publicity, perhaps by sequestering the jury for the duration. In the Simpson case the public and potential jurors have seen many hours of evidence and arguments that will undoubtedly be ruled blatantly irrelevant and inadmissible at the trial.
The sorriest aspect of all is that this television show was unnecessary. Most court proceedings must be public, and the right of the news media to be present has been specially recognized. But there is no constitutional provision that any court proceedings be televised. Indeed, the federal courts preclude all television. Almost all state courts recognize that the administration of justice is generally well served by television proceedings, but only under monitoring that promotes fair trials. In good sense, the judges of California should have precluded all or most of the pretrial courtroom televising in the Simpson case.
Ego must almost surely intrude in some decisions as to televising. Probably most lawyers and judges, like almost everyone else, enjoy the prospect of appearing on the screen. Every competent judge appreciates the necessity to suppress the ego of judge and lawyer to the greater cause of fairness and due process.
Although a fair trial of the O.J. Simpson case is probably impossible after the long-running television show from the courtroom, one good result may come
from the whole misguided affair. Many people may come to better understand the political and arbitrary nature of the death penalty in this country, because the news media have emphasized over and over that the district attorney of Los Angeles County has sole and unfettered discretion whether to "seek" the death penalty.
The decision of a district attorney in such cases may be grounded in reasoning that has little to do with evenhanded administration of justice. There is no intention here to question the good will of the Los Angeles prosecutor, who has decided not to seek the death penalty. The fact is that the prosecutors in all states are elected officials. The decision whether or not to seek the death penalty may be impelled by reelection considerations. Indeed the prosecutor's decision may come long before the trial, when he or she advises the grand jury or enters into a plea bargain for an offense less than first-degree murder.
Even though all murders are abhorrent, only a small percentage of all murderers are sentenced to death; few are executed. The Supreme Court of the United States in the 1970s decided that the death penalty decisions in the various states were unconstitutionally arbitrary and capricious. It was ruled that the death penalty statutes must set out specific aggravating and mitigating factors that the jury must consider.
Subsequently, in 1980, the Supreme Judicial Court of Massachusetts, acting under the state constitution, observed that capriciousness and arbitrariness still remained in the decisions as to who should live or die because of the total and unfettered discretion exerted by prosecutors. The law does not compel the prosecutor to balance the aggravating and mitigating factors found in the death penalty statute. In our system of criminal justice, great discretion in all criminal cases must of necessity reside in the prosecutor, but the system is flawed in capital cases because it leaves to the official the awesome questions of life and death.
It is small comfort that millions of people have learned from the Simpson television production something about pretrial proceedings and the death penalty. There is a danger that high-profile cases in the future may go the way of the Simpson case. It is absolutely essential that the public be informed about what goes on in our courts, but the pervasive and indiscriminate use of courtroom television can destroy the delicate balance between fair trial and free press. If that delicate balance is not preserved, the principal onus lies on the lawyers, and most especially upon the judges.
Edward F. Hennessey is the retired chief justice of the Supreme Judicial Court of Massachusetts. 