Free Press Vs. Fair Trial p. 6

By: Stacy Jones THE UPROAR WAS immediate after the Dallas Morning News published an article on its Web site stating that Oklahoma bombing suspect Timothy McVeigh had, in confidential defense documents, confessed to the crime.
The memo was written by a member of McVeigh's defense team and quoted the defendant saying the purpose of the daytime attack was to ensure a high "body count."
The day the article was published on the Web, Friday, Feb. 28, was also the deadline for potential jurors in the bombing case to respond to court questionnaires. The Morning News ran the article as its lead story in the next day's edition.
McVeigh's lead attorney, Stephen Jones, at first denied the document existed, saying someone had pulled a hoax on the paper. Later, he admitted it did exist, but that it was not a confession by McVeigh.
The alleged confession was actually a fabrication by the defense to gain information from another source, said Jones later in an interview with the Washington Post.
On March 3, Jones accused the Morning News of stealing the files from the defense team's computer.
"If you break into my house or you break into my computer, it's still theft," Jones said at a press conference. "Unless the Dallas Morning News is prepared to present a release by me or Mr. McVeigh, they have very able lawyers, they know they didn't have any authority."
Debate over the case has filled newspapers, television screens and office watering holes. The question everyone asks: Was it fair?
While the Morning News has yet to explain how it latched on to the defense files, that is not the most pertinent issue ? unless someone from the Morning News did hack their way into the defense team's computer and steal the information.
Of that scenario, Morning News executive vice president and editor Ralph Langer said it "absolutely didn't happen."
The issue also isn't whether the Morning News had the right to print the information from documents that might have been stolen. In the shadow of the 26-year-old Pentagon Papers case, a newspaper's right to go to press with such documents has been upheld.
The less clear and more debatable issues are whether the story by the Morning News will impinge on McVeigh's right to a fair trial, the responsibilities of newspapers to society, and the apparent clash of the First and Sixth Amendments which guarantee a free press and the right to a fair trial, respectively.
While the intense media attention garnered by the McVeigh story caught the Morning News off guard, Langer doesn't regret running the story. The decision wasn't made instantly, as the paper's leaders discussed several ways of handling the story ? including possibly delaying publication.
"We were concerned about" a fair trial for McVeigh, said Langer, "but the story was so significant that people needed to know about it."
Postponing publication was eliminated as an option early on, said Langer. "A month from now you'd be in the middle of the trial. Do you wait until after the trial to publish?"
Defense lawyer and former federal prosecutor Neal Sonnett doesn't think the Morning News had to wait until the trial was over, but the paper could have waited "long enough for the furor to die down."
Calling himself a defender of the First Amendment, Sonnett said "the media has the obligation to look into this thing."
However, he said, "It would have helped to wait until jury selection.
"The press exercises discretion all the time" with information, such as naming rape victims or juveniles, he added.
Such an action would be unthinkable for any respectable newspaper, said lawyer, Floyd Abrams, of Cahill, Gordon and Reindel in New York.
"Once the paper had the information, it was appropriate to publish it," said Abrams, longtime legal counsel for the New York Times, who was involved in the Pentagon Papers court battle. "Newspapers at their best tell the truth about matters."
But what about a fair trial? Do the rights of a free press supersede the rights of an individual, even if that individual is the defendant in a high-profile criminal trial?
They don't have to, said Sonnett.
To alleviate the "clash" between the First and Sixth Amendment "a little sensitivity to the criminal justice system" by the press is necessary, he said, "so the First and Sixth don't have to collide."
In Sonnett's view, the damage to McVeigh's right to a fair trial is immense.
"It's not necessarily the pre-trial publicity, but the prejudicial pretrial publicity," he said. "Saying the defendant has confessed is about as prejudicial as you can get."
What potential juror "would forget the word 'body count,' " asked Sonnett, referring to a phrase allegedly used by McVeigh in the defense document while explaining his intent for the bombing.
On Court TV, prominent defense attorney Raymond Brown agreed, stating, "McVeigh has been harmed irreparably."
Another fair trial issue is the fact that the information obtained from the defense files would most likely have never been presented to jurors.
"Assuming attorney-client privilege," said Sonnett, "a statement made by McVeigh to his attorney" would never come to light in the courtroom.
"It's sacrosanct. That's the very core of the Sixth Amendment," added Sonnett.
Such fears, said Abrams, "tend to be exaggerated."
"It's highly likely to find people who never heard of the Dallas Morning News and have only the roughest of outlines on the document," he said.
"It will be difficult [for McVeigh] to get a fair trial . . . due to the publicity of his actions, said Abrams. "But not because of the story published by the Dallas Morning News."
Langer agrees, stating that a fair trial is still possible for McVeigh. As proof, he cited the O.J. Simpson trial and the wealth of "evidence and pseudo-evidence that was published contantly."
Said Langer, "You can say O.J. got at least one fair trial."

Why the Web?
On the fringe of the debate exist interesting managerial twists by the Morning News, one occurring before the story was published and the other in the onslaught of media criticism.
The first move took place on the afternoon of publication, Friday, Feb. 28.
With all the leg work completed and the story written, Morning News editors made a surprising choice: to run the article, that day, on their Web site rather than save it as the front-page lead for the next day's edition.
Dallas Morning News' publication of bombing suspect's 'confession' spurs debate
Langer denies the paper was trying to avoid any prior restraint attempts by McVeigh's attorney. "There was no threat of that."
The paper was simply trying to get what was "obviously going to be a blockbuster story" to the public as soon as possible, offered Langer.
"By mid-afternoon we had a completed story sooner than expected," he said.
And since Jones, government officials, federal prosecutors and others interviewed for the article knew a story would be published ? though they
didn't know when ? "there was the danger of word getting out," said Langer.
So instead of prepping the story for Saturday's paper, the Morning News "did what CNN does."
"When the story was finished, we went with it," he said.
The second move is the Morning News' decision not to use any of the remaining defense documents for future stories.
To get the point across, the Morning News filed a statement in the U.S. District Court in Denver promising not to do so.
The filing stated that the Morning News has placed all of the documents in the custody of its attorney where they will remain ? indefinitely.
"The intent was not to interfere . . . delay the trial," said Langer. The trial is scheduled to begin at the end of the month.
From the collection of documents, there was "one incredibly significant story," he said.
"Nothing of that significance [from the remaining files] would make the cut for publication."
Not merely putting the documents to rest for the duration of McVeigh's trial, Langer said the Morning News has no intention of ever using any of the information for subsequent articles.
"We have taken the documents and said 'we're through there,' " said Langer.
Not everyone agrees with that scenario, Sonnett included.
"It blew up in their faces, and at that point they decided to cover their losses," he said.
"They were getting beaten about the head and shoulders with this thing."
Somewhat annoyed and worn out from the endless rounds of speculation by outsiders, Langer and the Morning News are quietly trying to make their case.
Langer continues to give select interviews in hopes of clearing the air and getting the facts out about the paper's decision to run the story. And two weeks ago, the Morning News ran a story about the numerous excuses used by defense lawyer Jones to explain ? or explain away ? the findings of the paper.
"His story has changed, ours has not," declared Langer.
Defense lawyer Roy Black, who successfully defended William Kennedy Smith in a rape trial, agreed.
"He [Jones] keeps giving these statements that keep changing every day," Black said.
"He [Jones] keeps hurting his own credibility."
And defense attorney Raymond Brown warned, "Playing games with the media is dangerous."
Exactly, said Sonnett. "If you attack the Morning News, you create yet another story."
?(How the Dallas Morning News played the story) [Photo & Caption]
?(The Dallas Morning News was concerned about a fair trial for Timothy McVeigh, said executive vice president and editor Ralph Langer. "But the story was so significant that people needed to know about it. A month from now you'd be in the middle of the trial. Do you wait until after the trial to publish?) [Photo & Caption]
?("If you break into my house or you break into my computer, it's still theft. Unless the Dallas Morning News is prepared to present a release by me or Mr. McVeigh, they have very able lawyers, they know they didn't have any authority.") [Caption]
?(-Stephen Jones, attorney for Oklahoma bombing suspect Timothy McVeigh) [Photo & Caption]
?(Oklahoma bombing syspect Timothy Mcveigh flanked by his lawyers, Stephen Jones (right) and Rob Nigh, during a prison interview last summer) [Photo & Caption]