Are media bans at trials appropriate?

There is a great furor in the media about a sweeping publication ban arising from a court proceeding involving one of the two defendants charged with murdering five-year-old Victoria Tori Stafford last spring. The little girl went missing a year ago, outside of her school in Woodstock, Ontario. She was seen in the company of Terri-Lynne McClintic, then 19. In May 2009, she and Michael Rafferty, then 29, were charged with her murder and abduction.

On April 30, McClintic was scheduled to appear in Woodstock court. What happened in that courtroom is now the subject of gossip and rumour, but no facts, thanks to a broad publication ban. During the proceeding, Mr. Justice McDermid ordered a complete publication ban against anything that was said during the proceeding being disclosed by the media.

A court order handed down by Justice Dougald R. McDermid permits the publication of only this statement by the media: “As we previously reported, Terri-Lynne McClintic was scheduled to appear on April 30, 2010 in the Superior Court of Justice at Woodstock but because of a temporary publication ban, we are prohibited by court order from providing any further information until further order of the court.” The scope of the ban was such that media were not allowed to even report if McClintic appeared in court. That I find most puzzling considering the fact that the Stafford case has been on the public’s radar since Tori went missing, and much information about the case is already in the public domain.

The order may or may not later be completely amended or partly lifted. The judge did this for the same reason any other judge in Canada would do in any case being heard in his or her court in order to protect the fair trial rights of an accused, which is a central component of our justice system.

Bans are routine in preliminary hearings, with their lower threshold of evidentiary proof that a case should proceed to trial. The jury is not to know about a previous outcome and the media stops reporting it while the preliminary hearing is unfolding.
More narrow bans are common at trial when there is more than one accused and the defendants are prosecuted separately. This is done to protect the second defendant from having what was said at the first defendant’s trial being disclosed to the second defendant’s jury before evidence is heard at his trial.

Highly unusual is what happened when Justice Frank Kovacs imposed (later partly lifted) a total ban before the hearing wherein Karla Homolka pleaded guilty to two charges of manslaughter. (She was later convicted of three) The media, while allowed to report on any sentence or conditions imposed on Homolka, was instructed by the judge that the media could not reveal that she'd entered a guilty plea because, Kovacs reasoned, this would jeopardize Paul Bernardo's trial later on, even though Bernardo's lawyers objected to the ban.

Kovacs even took the stunning step of excluding the public from Homolka's hearing, lest anybody leak information to U.S. media organizations, which could not be compelled to obey the ban. Strangely enough, many of us learned what transpired at that hearing by simply reading it in American newspapers on the Internet.
Here's the crux of the issue. Courts in Canada generally assume, in a most patronizing fashion, that a jury pool would be tainted by having foreknowledge of events, especially how a case against a co-accused has turned out. The ‘deleterious’ effect of that knowledge trumps the public's right to know what has transpired in our allegedly open courtrooms. Yet prospective jurors have often been exposed to media coverage of a crime when it was committed or when arrests were made. Courts pretend that the passage of time, between arrest and trial, blunts that knowledge. Of course, the pretence is a farce. Most jurors, if not all of them, are well aware of the facts of the case based on what they have read in the newspapers or heard on the radio or seen on TV. To suggest that they enter the courtrooms completely oblivious as to the basic facts of the case they are to decide upon; is preposterous.

Courts have evolved at least by conceding that knowledge of the basic particulars of a crime at a minimum; isn't necessarily crippling and justifying pre-emptively excluding a jurist. For example, if a defence lawyer asks a prospective juror whether or not he or she has heard or ready anything relating to the crime and the person replies that he or she has, that prospective juror should not be excluded for sitting as a juror on the case on that fact alone.

However, both judges and the defence bar cling to the paternalistic belief that a jury of ordinary people can’t render a fair decision which would result in a fair trial not taking place if they are in possession of facts as to how earlier proceedings against a co-accused were resolved.

There is to some degree, merit in that fear. Suppose a police officer states in his testimony that the first accused admitted to them that both he and his co-accused committed the murder. If that information was made public, then a juror attending the trial of the second co-accused would have in the back of his mind that the previous co-accused admitted to the police that both accused committed the crime. That would be a real problem if in fact the second co-accused actually didn’t admit to having committing the crime.

This brings to mind what the famous American trial lawyer, Clarence Darrow did during the Leopold and Loeb case in Chicago during July 1924 when the trial judge kept telling the jury to disregard the previous statements uttered by a witness. Darrow withdrew a small pink cloth elephant from his briefcase and placed it near the jury where it remained until the end of the trial. When he was giving his summation, he reminded the jury that they had been starring at the pink elephant a great deal of the time and that they couldn’t get that image out of their minds anymore than they could get the evidence the judge told them to ignore out of their minds.

What I am trying to get across to my readers is that once information is recorded in our memories, it is pretty hard to erase it, especially if the information is interesting. If a prospective juror reads in the newspaper that a co-accused testified in court that both he and his partner planned the crime (when in fact that isn’t true) the juror hearing the evidence at the trial of the second accused is going to have what he read in the newspaper coming to the fore and interfering with his judgment.

This is why there is always a ban on preliminary hearings in Canada. The purpose of the hearing is for the prosecutor (crown attorney) to present all of the crown’s evidence before the judge and the defence so that the judge can determine if there is enough evidence that a jury would accept to convict the accused and also for the defence to hear in advance what evidence it will face at trial.

It would be unfair to the accused for a prospective juror to read about the evidence given in a preliminary hearing because the juror would only be hearing one side of the case as the defence doesn’t present its case at that hearing. Neither the court nor the defence would want a prospective juror’s mind tainted by reading only half the story.

Peter Kormos, an NDP justice critic in the Ontario legislature (and a politician I really respect) said that sweeping publication ban that prevents the Star from reporting what transpired at the court date of one of the accused in the Tori Stafford murder is unprecedented and must be resolved promptly. He added, “We identify secret trials with totalitarian states. He added, “Having a blackout on information heard by people at the Woodstock courthouse is an affront to the public’s interest in ensuring justice is done.” Kormos also that said publication bans have a place in ensuring a fair trial, but every ban should have a cogent explanation and as narrow scope as possible.

On that point, I agree. The ban appears to have precluded publication of the explanation, and we get placed into a very bizarre Catch-22 situation. All this does is to generate suspicion and cynicism in the general public’s mind.

The premier’s office was tight lipped on the matter and quite correctly so. His press secretary, Jane Almeida said, “Because the issue is before the courts, the only comment I can offer you on behalf of the premier's office is that our thoughts are with the family and friends of Tori Stafford.”

Kormos said misinformation, which is surely “more dangerous than facts” will be the order of the day until the ban is lifted. He said, “The matter has to be resolved promptly. Every day that a complete blackout prevails is another day of conjecture, speculation, and downright inaccurate information.”

According to Klaus Pohle, who teaches media law at Carleton University, “In effect, it is a gag order ” he added, “Since we have no idea whatsoever what this publication ban is all about and what it seeks to protect, it may lead to all kinds of speculation.”

I think that is hyperbole on the part of Komos and Pohle. There has been conjecture and speculation ever since the arrest of the two accused persons and the fact that nothing is being disclosed with respect to what went on in McClintic’s appearance in court may be puzzling but it won’t have a detrimental effect on the outcome of the trial.

Pohle points out that a similar ban was issued in the Karla Homolka case, which lasted for years. Homolka served a 12-year prison sentence for manslaughter after entering into a plea bargain with Ontario Crown officials in 1993 in exchange for testimony against ex-husband Paul Bernardo.

Typically, Pohle says publication bans generally allow the media to say whether the accused appeared in court, and what the appearance was for, with a ban on the proceedings themselves. That’s true and as I said earlier in this piece, I find it puzzling that the order even includes stating that McClintic even appeared in court.
It is convievible however that the shroud of secrecy that has blanketed the Stafford proceedings could lead some to suspect plea bargaining is underway, he said.

As Pohle correctly stated, “Unless you know what the reasons are you can't make a judgment, and therefore it sounds as if something nefarious is going on.” In addition, because the ban goes beyond traditional media and extends to anyone using print, broadcast and Internet channels to share information Pohle says speculation is bound to occur.

There's certainly going to be conspiracy theories, and speculation all over the blogosphere, because that's the nature of it,

The one sliver of redemption stemming from the volley of criticism spurred by the ban, is that it is temporary, media lawyer Iain MacKinnon pointed out. “Publication bans are never forever,” he said. "They always expire. It's just a matter of when."

I for one am not going to speculate as why the gag order is in place. I will wait until the court hearing the matter or a higher court hearing a motion to cancel the order gives its decision.