Media on trial

This article was originally published in The Signet magazine (Issue 2, January 2012).

As the Leveson Inquiry continues into the methods of the UK press, high profile expatriate cases like Amanda Knox’s in Perugia add a cross-jurisdictional dimension to the tension between the legal process and reporting in the popular media. The cultural conflicts multiply exponentially as the legal and mass media “narratives” play out. But scandalous headlines that sell newspapers do not always aid the cause of justice.

As the Leveson Inquiry continues into the methods of the UK press, high profile expatriate cases like Amanda Knox’s in Perugia add a cross-jurisdictional dimension to the tension between the legal process and reporting in the popular media. The cultural conflicts multiply exponentially as the legal and mass media “narratives” play out. But scandalous headlines that sell newspapers do not always aid the cause of justice.

Both lawyers and the public at large tend to think of legal proceedings as walled off from everyday discourse because of things like their formal trappings and rules of evidence and procedure. And the fact that many items in a trial record are intended for and perhaps intelligible only to lawyers (pleadings, objections, motions, and the like) heightens the sense of distance between the legal and the lay. As a consequence, although these materials can be assembled in a narrative fashion (in, for instance, the written opinion of an appellate court), the result will constitute a purely legal narrative.

 Randy Gordon in his office in Dallas.

Randy Gordon in his office in Dallas.

But what happens in the courtroom is not always frozen within that space because legal narratives can escape their containers and assume a non-legal shape. One way of thinking about this phenomenon is by recalling Robert Ferguson’s concept of a “continuum of publication” – i.e., that although a criminal case may begin with an indictment, it may end with any manner of publication, things like newspaper reports, historical accounts or even fictionalizations.

These extra-judicial publications show how different groups interpret legal narratives (whether to make sense of them or to create scandalous headlines). In contrast to the past, though, subsequent publication is increasingly given over to simultaneous publication in “media” trials – trials that are particularly salacious, involve attractive or famous figures, and – most important – are relatively long.

The Casey Anthony and Amanda Knox trials provide casebook studies: young, attractive defendants accused of murder in highly suspicious (yet nonetheless ambiguous) circumstances, circumstances infused with all the sex, drugs and wild parties that any voyeur could hope for. Interestingly, each was convicted by the media, yet ultimately released by the courts. None of this is to suggest that media trials are without precedent (think of the Dreyfus affair), but there is something about the immediacy of reporting and commentary that is new to our age.

EVERY TRIAL INVOLVES A NARRATIVE RECONSTRUCTION OF THE PAST: EVERYBODY HAS A STORY TO TELL.

At first, both Knox and Anthony were reviled in the press, each likened to a child of Satan, vampire, or somesuch. Knox was accused of participating in the grisly murder of her British room-mate in Italy, ostensibly as part of a sex game. Anthony, by contrast, was a single mother and was charged with killing her two year-old daughter so that she could spend more time out on the town. But the true common thread here was the bizarre behaviour that each of the young women exhibited after the incident in question: for example, Anthony didn’t report her daughter’s disappearance when it happened and participated in a “hot body” contest only days after; Knox turned cartwheels in the police station and wore John Lennon t-shirts at trial.

Ultimately, an Italian appellate court reversed Knox’s conviction, and a Florida jury acquitted Anthony. But the public reactions (at least in the US) to the two verdicts were quite different: relief and elation in the case of Knox, bitter recriminations and death threats in the case of Anthony.

There are myriad possible reasons for this disparity, but – as some commentators have concluded – Knox benefited from the general American suspicion of criminal proceedings brought against expats in foreign jurisdictions, and Anthony suffered under the visceral presumption that the death of a child is the result of actual (or something tantamount to) infanticide. But all this is at the end of the day beyond our ken.

What we can know, however, is how legions of media pundits tried these cases on tracks parallel to the actual proceedings. Nancy Grace, a former prosecutor and present CNN commentator and novelist, is representative of this trend, although she has been described as particularly “rabid” in advancing her opinions. In any event, Grace is “credited” with advancing the Anthony case (the “Tot Mom” case in her lingo) from a garden-variety homicide case into a national media circus. In reaction to the notguilty verdict, she opined that “Tot Mom’s lies seem to have worked. The devil is dancing tonight”. In a similar vein, she labeled Knox’s release a “huge miscarriage of justice” (reported in USA Today) and offered her own narration of what really happened: “I believe that while Amanda Knox did not wield the knife herself, I think that she was there, with her boyfriend, and that he did the deed, and that she egged him on”.

The point here is that every trial involves a narrative reconstruction of the past: everybody has a story to tell. The prosecution offers a narrative of guilt, the defence one of non-guilt. And the jury has to fashion one of its own – one that, to itself at least – justifies whatever decision it reaches. Most certainly, juries sometimes get these things wrong. But is the legal system better off with (largely) uninformed pundits passing judgment before, during, and after a trial? I do not think so, and in saying this I do not mean to imply that the Fourth Estate does not serve a valuable public service in criticising lawyers, judges, and juries when we err.

But we are diminished when accused criminals are tried in the media just because they showed socially inappropriate behaviour before or after an otherwise unexplained death. After all, sometimes – as it was for Camus’ Meursault in The Outsider - trial based on antisocial behaviour can have grave consequences.

Randy Gordon has been an associate member of the WS Society for several years. He is the founding shareholder and managing director of the Dallas office of Crowe & Dunlevy, where he focuses on antitrust, RICO, class-action, and university-related matters. His professional activities include service as past Chair of the State Bar of Texas Antitrust Section, a member of the Competition Torts Committee of the Antitrust Section of the ABA, and an elected member of the American Law Institute. Randy is Executive Professor of Law and History at Texas A&M University. A frequent lecturer and writer, he is the author of Rehumanizing Law: A Theory of Law and Democracy (University of Toronto Press, 2011).