April 1, 1989 Kirk Makin

The Long Arm of the Media: A Critical Cause and Effect

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The clincher was the suicide of a St. Catharines, Ontario man who was arrested for gross indecency in January 1985. A 42-year-old sales manager, he was videotaped engaging in homosexual acts in a public washroom. When his victimless crime was publicly unmasked by the press, the man drove down a country road and doused himself with gasoline. Then he flicked his lighter and ended the humiliation. Perhaps he would still be alive had he been allowed the months leading up to his trial to anonymously regroup and talk with his family. God knows, perhaps he would even have been acquitted.

Among all the predictable ooze and gore of my profession, particular inci~ dents occasionally spark jolting revelations. For me, this tragic incident was one of them.

Before that day, I had sporadically entertained a nagging feeling that somehow there might be something wrong with this pretrial publication of names. At such times, I would feel a g vague sense of disloyalty, of having gone unaccountably soft on crime. But the lonely self-immolation of that pitiful creature screamed out some important questions about the way we cover ~ criminal justice. In particular, had some social imperative truly been served by publishing that name? What was the hurry? Could it not have waited a few months until his trial?

The usual response to this sort of liberal bleating (sticking up for the rights of the accused is no picnic these days) is that the press has a right perhaps an obligation-to publish. So we do. This invariably means producing stories filled with absurd slavish references to a man or a suspect -right up to the last paragraph. Then we coyly serve up the name, as if it had no connection to the foregoing prejudicial information. The accused-and, perhaps more importantly, their families-have meanwhile had no time to psychologically prepare for the onslaught of publicity. As the news spreads, they are subject to anything from catcalls to death threats. All of this because one or two police officers thought they had sufficient evidence to warrant a criminal charge.

It is beyond dispute that the police must maintain a public record of any criminal charge laid against a citizen. But of all the arguments to justify publication of those names in the press, only one ever struck me as rising above a superficial allure. It is the argument that friends and neighbors have a right to know when a potentially dangerous person is going to dwell in their midst prior to his or her trial.

The first answer to this argument is bail. Bail is partly designed to keep the truly dangerous people out of the community until their trial. And if a portion of those who get bail do nonetheless present a genuine threat, surely there is a less destructive solution than publishing names. Why not, for example, amend the law to let judges allow the publication of a name if it can be shown that publication would truly serve a community interest? Developing criteria would pose problems, but certainly not insurmountable ones. The right to publish every bit of evidence at the trial would remain intact. And the trial is, after all, the first and only point at which guilt or innocence is established.

No, the only people who really benefit from the media’s rush to publish names are the police. Once the police make the arrest, they have done their job. All they want at that point is credit (their version of a byline, I suppose) and a conviction. If it were otherwise, why would they willingly provide the media with details about the alleged crime and criminal? By publishing names and evidence, we play right into their hands.

This issue of pretrial publicity is, unfortunately, just one symptom of a more ominous theme that raises other nagging questions. Canadians and their media are currently hell-bent on demystifying their court system. It is a laudable goal-up to a point. It makes sense, for example, to know who judges really are. It makes sense to recognize they are more likely to be failed local political candidates than deities. It also makes sense for the media to convey to the public that its courts have become little more than plea-bargain bazaars in which trials are seen as a luxury that clutters up the efficient disposition of cases. But uncontrolled “demystification” has its own dangers, which are exemplified by the inexorable move to permit television cameras in the courts.

Under the guise of press freedom and the public’s right to know, the cameras are creeping steadily closer.

Television journalists do have the same right as print or radio reporters to be in a courtroom taking note of every word and nuance. That is obviously as it should be. True, the fact that cameras cannot intrude makes life very arduous for television reporters. All too often, lineup editors think their stories lack visual oomph without in-court shots.

But with all due respect and empathy for my television brethren, letting cameras into court is not the answer.. The shortcoming here is not with the justice system but with the demands of contemporary television news.

There is a valid argument to be made that the braying cut-and-thrust of televised policy debate may be educative as well as entertaining-an argument that was used to get cameras into Parliament back in 1977. But law courts are not legislatures.

One need simply apply logic to the realities of human nature. A terrified witness or victim is obviously less likely to testify to an embarrassing fact if he or she knows a camera is waiting for just that right clip-whether or not the camera is discreetly hidden in a courtroom wall. Prosecutors and defence counsel will turn into strutting movie stars. Make no mistake about it-so will some judges.

Both sides of this debate have their pet research studies. These have been trotted out many times to prove that television will, or will not, disturb the solemnity of the courtroom and transform testimony and legal argument into stilted performances.

A favorite tack of the pro-camera faction is that real-life court scenes would be instructive for the public. And in theory, the transmission of entire trials or significant segments might, indeed, be enlightening. But in reality, what are we going to see? It will not be the eloquent give-and-take of a legally important appeal that will make the nightly news. It will be the 30-second clip of a defence lawyer howling an allegation at a frightened witness. It will be the red faced prosecutor dramatically wagging his finger. Is there really something educational about seeing the only Perry Mason-like scene of an average day in court?

Measure this against the possible impact on testimony. In court, not to be too grand about it, lives hang very much in the balance. It ain’t Question Period.