Late in the afternoon of Friday, March 4, 1988, in a non-descript Toronto courtroom, a 25-year-old Greek immigrant was convicted of sexual assault and sentenced to 30 days in prison, to be served on weekends. Given the rather commonplace nature of the crime, in a city of over two million, that should have been the end of the case.
Readers of The Toronto Star’s Saturday edition-and there are close to 800,000-awoke the next morning to an account of the trial in which District Court Judge Ted Matlow’s partial comments, to the effect that the victim of the assault “should have known better than to get involved in this situation” and that the circumstances “were about as marginal as can be,” were highlighted. Also included were the angry statements of a women’s group representative and a female member of the Metro Police Commission.
The brouhaha created by this front-page account lasted nearly a month. It was the subject of at least II articles and two editorials in three Toronto dailies -six of them in The Star- and it culminated in the mock trial, by outraged women’s groups, of Judge Matlow and five other judges on the steps of a downtown Toronto courtroom. All six were found guilty of sexism.
Rarely do newspaper accounts of judicial proceedings incite such a furore. But when they do, they raise the question of just what the record of the press is on criminal trials. To many members of the legal profession, that record is less than sterling. Often sensationalist, often distorted, press coverage of criminal cases is, they charge, irresponsible and ultimately unreliable.
Two weeks after the “trial,” The Star ran a more detailed analysis of the case. The account revealed that the victim, while hitchhiking, had accepted a ride from the accused and his friends; had agreed to kissing one of them; was not forcibly restrained; was never threatened; was not injured; did not once tell the men to stop and did not try to get out of their vehicle. Besides acknowledging that “Critics, some of whom were contacted by The Star before they had read the transcript and become familiar with the details of the case” (emphasis added), the article devoted six full paragraphs to the judge’s deliberations.
Suddenly, with his comments put into context, Judge Matlow’s attitude began to seem less cavalier. The same, says Toronto criminal lawyer Bridget Lynett, cannot be said of the journalists.
“They had no difficulty running off and seeking that kind of response knowing full well the women’s groups weren’t [in the courtroom], and I think that was inesponsible,” says Lynett, who acted for the convicted man. “They were out for a reaction: they got it. They didn’t care they were getting it from an ill-informed source.”
Examples substantiating this charge are not hard to find. Some are the result of what Lynett calls “gross sloppiness,” as in the two front-page accounts of the conviction of an Owen Sound man for murder which appeared in The Globe and The Star on October 21,.1989. Ac cording to The Globe, “A jury of ten men and two women deliberated eight hours before returning the verdict that lawyer Michael McLachlan said later his client had been expecting.” Conversely, The Star’s version read: “His lawyer, Mike McLachlan, said later his client ‘never expected the verdict he got,’ the Canadian Press reports.”
According to both lawyers and journalists, problems in the reporting of criminal trials often arise because of the manner in which the trials are covered. Reporters who must attend more than one court in a day find it impossible to watch a trial from beginning to end, so the public may be reading chunks of testimony taken out of context..
“The problem is that they [reporters] haven’t heard what’s gone on before and they haven’t heard what’s gone on afterwards,” says Earl Levy, former president of the Criminal Lawyers Association. “A witness may give evidence through questioning by the Crown prosecutor that can sound very damaging. The cross examination, however, could blunt the inflammatory evidence that came out earlier, but the newspaper reader may never read that. “The result,” he says, is “a distorted view of what actually happened in the trial.”
Kirk Makin, a former court reporter who now writes on legal affairs for The Globe and Mail, agrees that the “chopped-up” nature of a trial, in which the prosecution often testifies one day, the defence the next, can hamper the writing of a balanced report. But the newspaper reader might also remember that reporters choose which facts are to be included according to their own sense-and that of their newspapers-of what is important. Makin believes reporters at times approach court reporting in the vein they approach sports reporting, “where it’s sort of this game that’s being played for you and, in a very impersonal way, you choose the most colorful part of the game and build your angle around that.”
Editing may also distort the truth by altering the reporter’s intent. Lawyer Brian Greenspan, president of the Criminal Lawyers Association, says one of the “greatest flaws” in court reporting is the reporter’s lack of control over the headline. Editors, Greenspan says, tend to “sensationalize the story and sensationalize the headline.” Last summer, Greenspan says, a police investigation in Nova Scotia into a series of rapes had led to the arrest of a male suspect. Before the suspect came to trial, Greenspan says, a local paper had emblazoned across its front page the headline “Dartmouth rapist caught.”
Similarly, this past January, The Toronto Sun ran a full-length, front-page photograph of a man suspected in a series of crimes across southern Ontario including murder, assault and rape. Beneath the photo, in two-inch red letters, ran the headline, “The beast kills again.” The suspect had not yet been captured. The Sun’s managing editor, Mike Strobel, stands by the headline: “It’s a situation where we have the mug shot, he’s wanted by the police, [so] you have more latitude in that case than in most criminal cases.” He adds that other media and the police were also referring to the suspect as the “beast.”
Contempt of court laws, which stipulate that a newspaper must not, through its coverage, influence the proceedings of a trial, ensure that such blatant violation does not occur on a regular basis. However, the boundaries of good taste are often straddled, as in this Montreal Gazette headline from September 21, 1988: ” ‘Sick’ and ‘twisted’ wife-beater Inwood gets month in jail.” At other times, the boundaries are crossed altogether: “A woman’s nightmare ride to hell: how Rhea Brochu went from pleasant caring daughter to tortured corpse” (Montreal Gazette, November 18, 1989).
The Star’s Harold Levy, a former criminal lawyer who currently sits on The Star’s editorial board, says big headlines do not sell papers: “I don’t think there’s an economic interest in devastating somebody’s reputation. I don’t think you’ll sell 10,000 more copies.” Makin says that headlines can misinterpret a story’s meaning, depending on how much or how little care went into their construction. “But,” he says, “anyone who only reads headlines shouldn’t be reading a newspaper.”
Headlines, however, play only a part in the process of sensationalizing. The angle a story emphasizes, the actual words used and even the play it receives in the paper all contribute to the process. Sooner or later nearly every news~ paper is guilty of it.
The degree of sensationalism is ultimately determined by the editorial policy of the paper, but some lawyers believe sensationalism plays a deliberate part in every newspaper account of a criminal trial. “The bottom line is, they have to sell their newspapers,” says Bridget Lynett.
While factual errors or errors of distortion do little to enhance the credibility of an individual newspaper, in the end it is the reputation of the press as a whole, and not of the individuals involved in the trial, which suffers most. More disturbing is the power with which, some lawyers maintain, the press interferes with the very process of justice.
“We often go on the supposition that newspaper reports affect the justice in the court,” says Harold Levy. “But I have never seen that demonstrated empirically.”
Others say they have.
In October 1988, two weeks after Kirby Inwood received a 30-day sentence for assault, the Crown appealed his sentence. When the appeal came before the bench, there were five judges appointed to it, two more than usual. It was a circumstance that, according to Greenspan, was as bizarre as it was “unbelievable.”
In 16 years of practising criminal law, Greenspan has handled roughly 600 appeals, and he has appeared before a five-man appeal panel only once, in 1988. That case, he says, involved a re-evaluation of a point of law concerning assault. “Generally they only sit five on major constitutional issues or when they want to re-evaluate one of their own decisions. There was absolutely no reason as a matter of law [to do so in this case ]… there was no important issue or principle. All there was was media attention and media pressure.” Greenspan believes the Crown was influenced to appeal as a result of public pressure, which in turn “was precipitated by the perception that the press provided of that case.” It was an instance, he says, where “the press even affected the court’s perception of what was happening.”
Lynett agrees. She says the decision to sit a five-man appeal bench was “ludicrous if [the case] had not received that kind of publicity it would have been just another ‘who cares?’ case. There was nothing extraordinary of interest, legal or otherwise, in this case.”
Not all members of the legal community agree. Says Earl Levy, “I don’t know why it would be outlandish to have five people sit on a court it maybe that they wanted to make a statement about domestic assault.”
Whatever one thinks of the Inwood case, however, other cases attest that the press can and does influence judicial proceedings.
In November 1988, District Court Judge Edward Wren declared a mistrial ten days into the trial of four businessmen charged with running an illegal gambling house in Toronto’s Chinatown. The judge ruled that a Globe and Mail account of a voir dire-proceedings that take place while the jury is excluded-had led to the “appearance of justice being compromised.”
(Canada’s Criminal Code states that “no information regarding any portion of the trial at which the jury is not present shall be published…before the jury retires to consider its verdict.”) The judge criticized the paper for publishing information which he said he had no intention of communicating to the jury, and said that because of the mistrial, the prior court proceedings amounted to a “two-week waste” of taxpayers’ money. As Lynett points out, such disruptions also cost the accused, who must meet the expense of legal fees which increase the longer the trial continues.
But perhaps no concern over newspaper coverage of criminal trials bears greater consideration than that of the individual charged with a crime, who comes up against what Greenspan calls the “unfettered power” of the press. “The terrible thing about the way the press operates,” he says, “is the allegation is page one [and] the acquittal, if it’s published at all, is page 30.”
The question of whether a newspaper should be allowed to publish the name of a person accused of a crime before that person comes to trial raises a stormy response among members of the legal community and the press alike. Earl Levy calls it “one of the thorniest issues that affects the fairness of trials,” and it brings to the fore the long-standing conflict between the public’s right to know and the right of the accused to be presumed innocent. Many lawyers feel that to publish a person’s name in connection with a criminal offence, before that person comes to trial, at best stigmatizes the individual in the eyes of the community; at worst, establishes guilt in the eyes of the jurors.
To do so seriously endangers a fundamental tenet of our court justice system: that a person is innocent until proven guilty. It’s called “trial by headline,” and one of the most conspicuous examples occurred nine years ago in the matter of the infant deaths at Toronto’s Hospital for Sick Children.
Susan Nelles, a registered nurse in the hospital’s cardiac unit, was charged with the murders of four infants in March 1981. The charges were dismissed at a preliminary hearing in May 1982, but by that time Nelles had already been branded in the press.
“We overdid it. It was awful. Absolutely. It was terrible,” is how Harold Levy describes The Star’s coverage of the murder investigation. A 1987 report looked at the Grange Inquiry into the deaths [covered in the 1985 Review]. The document, published by the Registered Nurses’ Association of
Ontario, concluded that “it would be naive to believe the media were merely impartial reporters. Indeed, their assumptions often reflected and reinforced public bias.”
Indeed, so extreme was the treatment meted out to Nelles in the press-front page stories with pictures; interviews in both The Star and The Globe with friends and relatives expressing shock and disbelief-that she has come to stand as a symbol for many who believe that bans forbidding publication of the accused’s names should be mandatory.
The concern that publication bans and similar restrictions will lead to what Harold Levy in a 1987 article called “pockets of secrecy” in the justice system is contrasted with that of the legal profession, which maintains that a person’s life can be shattered by the publicity surrounding a charge.
“I don’t see what public interest is served [by publishing names],” says Lynett. “It can do incredible damage to an individual and he’ll never be vindicated.” She adds that people are often “overcharged,” in the sense that they are convicted on a much lesser crime than that with which they were originally charged. “But what’s left in the mind of the public is the name and the fact that they’ve been charged.” Others maintain that the right of the press to report the names of the accused is vital to its role of watchdog. Any attempt to curtail that right “deprives the public of an important vehicle for holding the administration of justice to account,” says Alan Borovoy, a lawyer with the Canadian Civil Liberties Association.
Although the argument may never be settled, some think a possible solution lies in the voluntary adoption by the press of rules of conduct that would make “equal play”-equal prominence for both the acquittals/dismissals and charges-a given. “If we’re going to permit the press to publish the names when they get charged, then we should insist on the balance of equal prominence to an acquittal,” says Greenspan.
Paul Palango, former national editor at The Globe, says the paper’s long standing policy is not to print the name of the accused unless they are “fairly certain” they will cover the trial as well. The Star’s policy regarding coverage is similar: “If you’re going to run a story about somebody being charged with something, you’re also going to make sure you publish the results of his or her hearing,” says Star ombudsman and senior editor Rod Goodman. The Toronto Sun’s Anita Elash says her paper’s policy is “to try to give the criminal trial as much playas the arrest would have received.”
None of the three, however, is willing to guarantee equal play.
A court reporter since 1988, Elash says it would be “impossible” to ensure that the charge, the verdict and/or acquittal receives identical coverage: “Quite often [play in the paper] depends on how it stacks up against other stories that come in that day.”
The same holds true for The Globe and The Star. Verdicts or acquittals jostle with all the other stories competing for space on a page, and newsworthiness, such as an unusual sentence or quote from a judge, must be considered. “Then,” says Goodman, “it’s up to a news editor to place [the story]. But he doesn’t automatically guarantee-and no paper can, really-equal play.”
Palango says it is unlikely The Globe would playa charge across the top of page one; any charge that warranted such attention would be likely to have the verdict treated with equal prominence. But neither can he guarantee equal coverage. The Globe strives for fairness, he says, “but circumstances change, staff changes on a given day-you just try to stay on top of it.”
Makin believes such guidelines will evolve natulrally as an outgrowth of the Ontario Press Council, which monitors complaints about the newspaper industry.
Meanwhile, sloppiness, bias, distortion and sensationalism are factors worth considering in any examination of the record of the press. Until newspapers treat court proceedings as accurately-and trial participants as sensitively-as if they themselves were on trial, the charge of unreliability will stick.
Lynett says that her experience of press coverage of criminal trials has made her skeptical of any newspaper account she reads. At all times, she says, “a grain of salt is required.”
And that doubt in her mind-and perhaps in the minds of thousands of readers-is the most telling indictment of newspaper trial reporting.