Guilty Parties
Both judges and journalists are to blame for lousy court coverage

By Al Diamon

Police arrest a suspect in a high-profile criminal case. He’s hauled into court, before a haughty judge and a contingent of mostly clueless reporters. And right about then, the misunderstandings begin.

Why didn’t the guy enter a plea? Most journalists don’t know that unless the defendant is waiving his right to a trial and pleading guilty, he doesn’t have to enter one until he’s indicted.

How could the judge let this creep out on bail? Few reporters realize that those accused of all but the most serious crimes have a right to bail, unless there’s strong evidence they’re a flight risk or a threat to commit another offense.

When it comes time for jury selection, the judge and attorneys huddle together and do their questioning of potential members out of earshot of the press. This happens frequently, but the practice might not be legal in light of a recent ruling from the Maine Supreme Judicial Court in the Kennebunk prostitution case.

Does any reporter have the balls to confront the judge and demand the proceedings be opened up?

The court system is complicated. Lots of lawyers don’t understand it. And sometimes, even judges get lost in the maze of rules. Small wonder, then, that reporters, most of them with no legal training beyond watching re-runs of Law & Order, often stumble badly when attempting to explain what went on.

“I’ve been in trials where, when I read the coverage, I wouldn’t have recognized it as my case if I hadn’t been there,” said Auburn attorney Leonard Sharon.

A judge, who asked not to be identified for reasons I’ll explain below, had this take: “Most of the coverage of the courts comes in the few high profile criminal cases that happen every year. Those cases are not typical. It would be useful if there was more regular coverage of what happens in the courts on a daily basis. There could be lots of interesting stories that would educate readers on what is the largely invisible third branch of government.”

There are a few Maine journalists who have the background to accurately report on legal proceedings. Judy Harrison of the Bangor Daily News spends a lot of her time in court and knows the players. Likewise, reporters on local beats, such as the Bangor Daily’s Stephen Betts in Rockland, often discover solid stories that haven’t attracted the attention of television because these cases lack the requisite links to sex and/or violence. Betts even covers the occasional civil case, something the rest of the media do only when it might result in a large financial settlement. But big money isn’t always the factor that decides what’s newsworthy. Last year, the BDN’s Andrew Neff did a fine job explaining the intricacies of small-claims court.

Television coverage is a different matter. “Court coverage [on TV] is often ill-informed and goes for the sensational jugular,” said another anonymous judge.

Even when broadcast journalists do report on a trial, they most often do so by ambushing the lawyers involved outside the courthouse. Whatever spin those attorneys put on events that took place inside (often when the TV crew wasn’t around) is the way the story will get played. That approach can result in confusion when the trial’s outcome isn’t consistent with what the news coverage has been portraying.

“You can tell when a reporter gets it and when they’re just skimming it off the top,” said another judge who asked not to be named. “You cannot convey the reality of a complex trial in a sound bite.”

Not every judge has a negative impression of court coverage. Robert Crowley served on the District and Superior Court benches for 22 years before retiring in 2010. Crowley said that in general the reporting on cases he oversaw was accurate, although it sometimes focused on points that weren’t particularly central to the case. “In the Zumba case, the testimony about the guy delivering [food to a woman who was naked] wasn’t terribly relevant,” he said, “but you can’t say that’s wrong. … I appreciate the different perspective. It’s interesting to see how somebody who’s not in the system views it.”

Interesting, perhaps, but not always informative.

It would be easy to blame inadequate court coverage on journalistic ignorance and indifference. And that would be at least partly correct. But there’s a lot more to it.

In a 1992 presentation, Donald Alexander — then a Superior Court justice, now a member of the Maine Supreme Judicial Court — wrote, “The reporting of courts and consequent public understanding of court proceedings less and less appears to reflect the reality of the way we work.”

But Alexander didn’t place all the responsibility for that sloppy work on the news media.

“If journalists won’t take the initiative to come and learn about specific cases and court processes in general, then we must take the initiative to speak [to] and educate journalists,” he said. “To journalistic critics who charge we are too ‘remote’ — I agree. We must be more approachable.”

As a result of Alexander’s efforts, the courts set up a group called the Media and Courts Advisory Committee. Apparently, it’s been meeting a couple of times a year ever since, but its efforts don’t seem to have been of much consequence.

When I asked Mary Ann Lynch, the spokeswoman for the court system, to arrange interviews with some judges for this story, she said I could talk to Leigh Saufley, the chief justice of the state supreme court, as well as the chief judges of the District and Superior courts — but only after my deadline for this issue. When I asked to speak to other judges, instead, Lynch said no. When I contacted judges directly, Lynch had a court official send a memo to all of them saying that she would be “coordinating the communication” with me and to refer any calls from me to her, a not-so-subtle warning not to talk.

Her edict was less successful than she might have wished, and several members of the judiciary agreed to be interviewed, although all insisted on anonymity. “The current court system is all about forms, procedure and orthodoxy,” one judge said. Another added, “There are plenty of judges who’d like to explain procedures to reporters, but they worry about punishment if they spoke out of school.”

It wasn’t always that way. Until the 1980s, it was common for trusted reporters to be invited to join judges and attorneys for conferences in chambers, so that they’d be able to understand what was about to happen in open session. According to Daniel Wathen, a former chief justice of the supreme court, these journalists agreed not to report what went on behind closed doors in return for complete access. “It was such an intimate relationship,” Wathen said. “They were part and parcel of the process.”

But as fewer news outlets maintained full-time court reporters, the close ties between reporters and judges frayed, and the quality of the coverage declined. By the mid-1980s, Wathen was so frustrated with erroneous reporting on supreme court cases that he and several other justices seriously considered producing special dumbed-down versions of their decisions in hopes reporters could better understand them.

That never happened. And neither did a recommendation from a national judicial group Wathen served on that judges hold sessions with reporters at the end of each trial day to explain procedures, schedules and issues that might arise, with all that information being strictly for background. But Wathen thinks such an idea might not be as dead as it looks.

“If the media approaches the courts, I think they’ll find the courts are responsive to discussing issues in non-case-specific ways,” he said. “It may be that [the court system isn’t] focusing on that, and it is something we should be focusing on.”

If anyone’s interested in finding out if that will work, court spokeswoman Mary Ann Lynch can be reached at 592-5940 or mary.ann.lynch@courts.maine.gov.

Tell her I said hello.

Al Diamon can be emailed at aldiamon@herniahill.net.