Many reporters flee for the bathroom when the assignment editor starts looking for someone to cover courts. The reporters’ reluctance — or fear — about walking into a courtroom is based partly on their assumption that they will be tied down for hours or days while the justice system moves at its glacial pace. But the bigger reason is their misconception that nobody but a lawyer would ever understand what was going on. In Chapter 10, when the assignment was to cover a meeting of your local government, you learned to focus your story mostly on the simple things governments do rather than the complex ways in which they do them. Follow the same advice in covering our judicial system: Learn and understand the complexity, but translate it simply.
Lawyers and judges are always careful to tell potential jurors that what goes on in the courtroom is nothing like what they see on TV. Actually, often it’s a great deal like it is on TV. What’s different is what goes on before cases come to trial. For nine cases out of 10, civil or criminal, that’s where a resolution will be made, so pre-trial activity is critically important.
It is also critically important to know where you are in the judicial system, so you can make sure your audience understands the context for what is going on. Again, once you know a few basics, it’s not hard to keep yourself and your audience oriented. The simplest way to look at how courts are organized is as a series of bifurcations.
In the United States all courts fall broadly under either the federal court system or a state court system. Each of those systems has two types of courts: courts of original jurisdiction — courts that try cases — and appellate courts — courts that hear appeals of rulings and verdicts made by lower courts. Within the courts of original jurisdiction there are two types of cases: civil, involving disputes between private individuals or companies, and criminal, in which the state or federal government, in effect, charges an individual or individuals with endangering or harming others and violating the peace and security of all members of society. (See Box 14.1)
Box 14.1 How Courts Are Organized
1. Both the federal government and each state government maintain a system of courts.
2. Each system has courts of original jurisdiction (trial courts) and appeals (or appellate) courts.
3. Courts of original jurisdiction include civil and criminal courts.
4. Many jurisdictions also have separate family courts (including divorce cases), probate courts (which adjudicate wills, for example), juvenile courts and traffic courts.
5. Most systems have a lower trial court that hears relatively minor matters — civil small claims and criminal misdemeanors.
6. A second, upper-level trial court hears civil cases where large amounts of money are at stake and serious criminal cases, called felonies.
Let’s look at a couple of examples. If your doctor determines you have gangrene in your leg but accidentally amputates the wrong leg, you may sue your doctor in civil court for harming you, but in most circumstances the doctor’s behavior would not result in criminal charges. But if somebody robs a gas station, charges are brought in criminal court, because theft and threatening someone’s life are looked on not as a financial transaction between private parties but as offenses against all of society. Whether you are in civil or criminal, state or federal courts, most court proceedings, and nearly all trials, are open to the public. The principal exception, as you learned in Chapter 12, is criminal cases involving juvenile defendants and, in some states, civil matters of family law, including divorce, child custody and adoption and settling a will. (But when I worked for The Miami Herald in Florida, covering courts in Palm Beach County, divorce cases were public. You can imagine the media coverage some of the high-profile breakups among the super-rich in Palm Beach attracted.)
In most jurisdictions, for both criminal and civil cases, there are two levels of courts of original jurisdiction. The lower civil court handles small claims cases (the kinds of things you see on The People’s Court on TV). The upper civil court handles lawsuits in which much more money is at stake. (The names of the courts or divisions differ from state to state. In Virginia, where Tori Baxter works and where our fictional community is located, lower courts, both civil and criminal, are called General District Courts. The upper courts are called Circuit Courts.) The lower court for criminal cases handles misdemeanors — things like public drunkenness or simple vandalism — as well as most traffic cases. Misdemeanors are punishable by less than a year in a local jail, a fine, or both. The upper court, the felony division, handles more serious crimes, called felonies — armed robbery or murder, for example. A felony is a crime that can result in a sentence of more than a year in a state prison.
Sometimes, a single incident will give rise to actions in both civil and criminal court, and the outcome of each can be substantially different. An excellent example is the O.J. Simpson case. Simpson, a former pro football star, was charged with murder in the brutal killings of his ex-wife and her male friend. His was perhaps the most celebrated criminal case of the 20th century in the United States. In an eight-month trial televised gavel-to-gavel in 1995 he was found not guilty of murder. But in a separate civil lawsuit later he was held responsible for both deaths and was ordered to pay substantial damages to the families of both victims.
How did that happen? How, given the same facts, could two juries arrive at different verdicts? It’s important to remember that civil courts apply a less stringent standard of proof than do criminal courts. In civil court, the person bringing the suit, or plaintiff, must prove his or her case by the greater weight of the evidence. In criminal court, the prosecution must prove the defendant guilty beyond a reasonable doubt.
The O.J. Simpson cases were atypical in that both civil and criminal cases were taken to trial. Again, about 90 percent of both civil and criminal cases are resolved by some sort of pretrial settlement. In civil cases, the parties often compromise, and such settlements are often allowed to be kept secret. In criminal cases, defendants often plea bargain, agreeing to plead guilty to a lesser charge to avoid a trial and the possibility of a longer sentence for conviction on a more serious charge. Unlike civil settlements, criminal plea agreements usually must be public unless the defendant is a juvenile.
Within broad limits, a civil case can be brought by anyone who thinks another person is responsible for causing him harm – usually financial harm or damage to reputation. And that plaintiff can ask for any amount in damages. For those reasons, it’s often advisable to de-emphasize the amount that a lawsuit asks for unless a solid foundation for it can be established.
While most court proceedings are public, there are still restrictions governing photography and video cameras in courtrooms. Most states now allow cameras at all public proceedings, but the federal court system does not. In the state courts, judges still have a lot of latitude in deciding how many cameras to allow and where they may be located. In cases that attract a lot of interest, photographers and videographers might have to agree to a pool arrangement that allows just one of each in the courtroom at a time. The tape and photos must be shared with other interested newspapers, television stations and online news outlets. It is always a good idea to let the judge or bailiff know in advance that you plan to have a photographer or videographer in the courtroom.
The charging process in criminal cases can be complicated. It is designed to ensure that the rights of the accused are preserved and that people are not unjustly accused of crimes. We need to distinguish the charging process and pretrial procedures from the process of a trial. Covering a trial is beyond the scope of this book. Remember, though, that about 90 percent of cases will be resolved sometime during the pre-trial process.
Because Exercise 14a deals with an indictment, we will go into some detail about the charging process here. The process differs somewhat from state to state, but what follows is fairly typical:
When police believe a crime has been committed, they may arrest and charge the person they believe committed it. In most jurisdictions, within 24-48 hours of the person’s arrest, he or she must appear before a judge or magistrate, a court official with limited judicial powers. The judge or magistrate reviews what is called a probable cause affidavit to determine preliminarily whether there is enough evidence to justify the arrest. The judge or magistrate then either sets a bond or denies bond, depending on the seriousness of the crime, how dangerous the defendant is seen to be and the likelihood that he or she will flee. The bond amount is not a reflection of whether the judge or magistrate thinks the accused is guilty. The accused is also told that he or she has the right to a lawyer, and a preliminary hearing date is set. If the defendant cannot afford a lawyer, the judge may appoint one.
Later – sometimes several weeks later — at the preliminary hearing, the prosecution presents portions of its case before a judge, who decides whether there is enough evidence to send the case to a grand jury. A defendant is never determined to be guilty or not guilty at a preliminary hearing, unless he or she decides at that point to plead guilty. The preliminary hearing is also a chance for the defense to see the prosecution’s case, and see what they’re up against. The defense can but usually doesn’t present any evidence. (In some states, some criminal cases do not have to be reviewed by a grand jury. A prosecutor can review the case prepared by police and file charges with the court by information, a formal charging document.)
If the judge determines after the preliminary hearing that there is enough evidence to take the case to a grand jury, the grand jury is convened. A grand jury is a body of 18 citizens brought together in a secret meeting to hear evidence against someone. This meeting is not a trial, and usually only the prosecutor’s evidence is heard. (In different jurisdictions, prosecutors are variously called state attorneys, district attorneys or, in Virginia, commonwealth’s attorneys. They represent the people in criminal cases.) If a grand jury decides there is enough evidence to charge the accused, it will issue an indictment. The indictment is a formal charge, not a finding of guilt, and your story should make that clear.
Once an indictment has been returned, a series of court proceedings and pre-trial hearings will usually ensue. Most of these proceedings are public, and you can usually find out much about the case by attending them. The nature and outcome of these proceedings often shows you whether the case is likely to go to trial.
To use the O.J. Simpson criminal case again as an example, early pre-trial motions filed by Simpson’s attorneys indicated to veteran court reporters that the defense would focus on how evidence was gathered and on the behavior of police officers in conducting the investigation. Sure enough, at trial, much of Simpson’s defense focused on allegations that evidence had been poorly gathered or maintained, and that at least one of the key officers in the investigation was racist.
As with crime reporting, the impact in court stories is often emotional. As part of our obligation to monitor institutions of power, news organizations should keep up with how well our judicial system works and trends in the justice system. Those stories may carry rational impact. But when you are reporting on individual cases, most of the impact is emotional. Look for the elements that give you that impact. Just because a story originates in court, it does not have to be laden with jargon, nor should it emphasize the process at the expense of the result. In explaining the case and its outcome to your audience, speak plain English, not legalese. And remember that sometimes the bringing of a lawsuit or a criminal case is not the real impact we are looking for; it tips us to that impact.
Make your words serve the facts
Remember also that, as we said in Chapter 12 about reporting arrests, you must be careful with the words you use to report legal matters. Guilt is for a court to determine, so avoid saying “Hunter was arrested for possessing cocaine.” Similarly, we should say “indicted on a charge of” instead of “indicted for” or “indicted with.” Don’t say “charges” unless there is more than one charge. In criminal cases, a defendant is found guilty or not guilty. There is no such thing as finding the defendant innocent. That’s because the defendant does not have to prove his or her innocence; the prosecution must prove beyond a reasonable doubt that the defendant is guilty.
When a defendant is found not guilty, it means only that there was not enough evidence to meet the prosecution’s burden of guilt. Many people who are found not guilty are not necessarily innocent of the offense. Because our legal system is structured to protect the rights of the accused, that’s not necessarily a miscarriage of justice. We are willing to put up with letting people “get away” with wrongdoing occasionally for the sake of protecting other defendants from being wrongly convicted.
Write right about rights
Occasionally charges are dismissed against a criminal defendant because police did not tell him of his right to remain silent and to talk to a lawyer, or because police used improper questioning or search methods. Defendants also occasionally go free because of mistakes made at their trials. In such cases we sometimes see or read in news stories that a judge released the defendant “on a technicality.” Defense lawyers point out that that language is true only if you consider fair-trial guarantees in the United States Constitution “technicalities.” “Released on a technicality” might also imply that the defendant was guilty, and that any ruling that afforded him or her the same rights as other citizens is a miscarriage of justice. You should avoid loaded language in your story, and remember your obligation to your audience to put facts in context.
Is the plea a bargain?
Public officials will often decry the practice of plea bargaining, particularly when they are running for office. Allowing a defendant to plead guilty in return for a lighter sentence is frequently portrayed as being soft on criminals and cheating society out of justice. In some cases, that happens, but as a reporter you need to remember that a defendant who is willing to plead guilty before trial could also be found not guilty at trial. Even with a guilty verdict at trial on a more serious charge, judges and lawyers know that sentencing guidelines in many states would not permit a substantially longer sentence than a defendant might accept in a plea bargain. And without plea bargaining nearly every criminal case would have to go to trial, causing an enormous backlog of cases in most jurisdictions. As a reporter, you should explain the reasons for the plea bargain to your audience. Avoid writing about plea bargaining in a way that implies that the defendant “got off easy,” unless you have evidence that that was the case. That evidence is nearly impossible to nail down when you consider that a jury trial could have resulted in a not guilty verdict.
As with reporting requested damages in civil cases, it is often misleading to report the maximum sentence for the crime with which a person has been charged. You learned that in Chapter 12. Even if there is a conviction, defendants are seldom sentenced to the most the law allows. If you do report the maximum sentence, you should also report the most common or most likely sentence for the crime. In many states, including Virginia, these are fairly easy to determine, because the states have set sentencing guidelines for judges to follow. The guidelines take into consideration not only the crime itself but the defendant’s prior criminal record.
Remember, finally, that in civil cases there is no prosecutor, just the plaintiff’s attorney and the defendant’s attorney, and no charges, just a suit or complaint. Prosecutors represent the people only in criminal cases.
Most court proceedings and the related records are open to the news media and the public so that we may preserve constitutional guarantees. Giving citizens the ability to monitor their justice system helps prevent miscarriages of justice, abuse of people accused of crimes, and power grabs by ambitious public officials. England’s infamous and highly secret Court of the Star Chamber was much on the minds of the framers of the United States Constitution in the 18th century.
But for journalists, having access to all manner of court proceedings and records does not mean we must report everything we see and hear. As with much of journalism ethics, can does not necessarily equal must or should. The most frequently cited example of journalistic restraint is the policy of most news organizations of not naming rape victims in stories without the victim’s consent. Similarly, when a rape victim testifies at a trial her identity is almost always kept from our audiences. While journalists routinely name the victims of other crimes, the argument is that rape carries a stigma for the victim that other crimes don’t. In other words, even though journalists could provide the information to an audience, they make a reasoned decision not to.
Even where there are legal restrictions on disclosing information, it’s important to remember that those legal constraints might not offer much guidance for journalists who have to make ethical decisions. For example, as you learned in Chapter 12, most jurisdictions prohibit court officials and police from releasing the names of juvenile defendants. The idea is to give youngsters a chance to mend their ways without having to endure a public stigma. The law sometimes carries criminal penalties for people who release the names of juvenile offenders. But there are no legal prohibitions against journalists publishing the information if they manage to obtain it. For journalists, then, it becomes a matter for ethical reasoning: Does the need of my audience to know the identity of a juvenile charged with a crime override our reluctance to make public the names of youngsters in trouble?
Box 14.2 Strategies for Writing about Courts
1. Understand your state’s judicial system. Talk to an expert, such as a law professor, or obtain the primer for journalists published by your state’s bar.
2. Remember that about 90 percent of both civil and criminal cases are resolved without a trial. Stay on top of pre-trial proceedings.
3. Explain to your audience where the case is in the judicial system – civil case, or criminal? At a procedural stage, or substantive?
4. Find out whether cameras — still or video — are allowed in courtrooms in your judicial system.
5. If you don’t understand the proceeding you are covering, find a friendly lawyer to explain it to you. Then explain it to your audience.
6. Use plain English in your story, not legalese or jargon. Stay away from loaded language like “he was released on a technicality.” Show what happened.
7. Write about likely sentences rather than maximum sentences. Similarly, don’t dwell on the amount a civil suit asks for. Wait until a judge or jury decides.
8. Remember that the impact of most court cases on a mass audience will be emotional. Make your story reflect that.
If legal proceedings are public because we as a society want to make sure that they are properly monitored, our professional responsibility as journalists includes not just publicizing those proceedings but also explaining them. The way you learned that in earlier chapters and other contexts was to show, not tell. An audience that doesn’t understand what it reads or watches cannot evaluate the justice of our system. (See Box 14.2)
1. Before you are sent to cover a trial or a pre-trial proceeding, make sure you understand the judicial system in your state. Get an expert to explain it to you. Many state bars – the licensing authority for lawyers – also publish guides or primers for journalists. The primer often includes a glossary of legal terms translated into audience-friendly language.
2. Remember the importance of pre-trial proceedings, from arrest to trial. They can provide you with a preview of how the case will unfold. More importantly, about 90 percent of both civil and criminal cases are resolved without a trial. So if you ignore the pre-trial activity in a case, the odds are nine in 10 that you will miss the resolution of the case.
3. Make sure you understand – and explain to your audience – where a case is in the judicial system. Is it a criminal or civil case? Is it being reviewed by a grand jury, or about to go to trial?
4. Are still or video cameras allowed in courtrooms in your judicial system? If they are, let a judge or bailiff know that you are planning to shoot a court proceeding.
5. Understand the purpose of the proceeding you are covering, and make sure your audience understands as well. Is a defendant being formally charged, or is he pleading guilty? Are lawyers and court officials simply deciding on a timetable for the rest of the case?
6. Translate legalese and jargon into plain English, and avoid loaded language.
7. Usually, avoid dwelling in criminal cases on the maximum sentence, or, in civil cases, on the amount that a lawsuit demands. Most often those figures are meaningless. Sentencing is up to a judge; damage awards are up to a jury.
8. Focus on impact for your audience. Most often in court cases the impact for a mass audience will be emotional. Frequently that emotional impact depends not on the filing of criminal charges or a lawsuit but on what underlies that filing.
In the following exercises, keep in mind where in the court system each case originated, and look for the real impact of each. In each, you will need to use earlier exercises for background.
Write a 30-second RDR and a Web blurb.
Background: Police read the indictment to Hunter this morning at 9:45 at the Blue Ridge Regional Jail, where he has been jailed since the accident, unable to make a preliminary bail of $25,000. His new bail has been set at $250,000. He is scheduled for arraignment tomorrow at 9 a.m. in Blue Ridge Circuit Court.
Virginia: In the Circuit Court for the County of Blue Ridge
Commonwealth of Virginia
Meriwether Chase Hunter
Grand Jury Indictment
Reckless Driving, Negligent Homicide, Vehicular Manslaughter
The Grand Jurors of the Commonwealth of Virginia, in and for the City of Valleydale and the County of Blue Ridge, upon their oaths, present that, in the City of Valleydale, Virginia, the accused,
MERIWETHER CHASE HUNTER
On or about the 15th day of December, in the City of Valleydale, then and there being the driver of a motor vehicle westbound on Trafalgar Street, a public thoroughfare in the City of Valleydale, did then and there willfully and unlawfully drive said motor vehicle carelessly and heedlessly in reckless disregard of the rights and safety of others in a grossly negligent and criminal manner, in support of which we allege, to wit:
1. That defendant failed to keep a proper lookout for other traffic upon or crossing a public highway;
2. That defendant illegally and recklessly crossed into the left traffic lane in a no passing zone;
3. That defendant did fail to obey the legal and duly posted speed limit;
4. That defendant did drive his motor vehicle at a speed greater than reasonable and prudent under conditions then and there existing, and in violation of existing laws;
5. That defendant drove said motor vehicle while in a state of intoxication, in violation of state law.
As a direct and proximate result of the defendant’s driving said motor vehicle in the manner and under the conditions aforesaid, defendant HUNTER did thereby then and there lose control of his motor vehicle, damaging the private property of citizens, to wit, HOWARD and DORCAS DOBBINS and VIRGINIA PRESBYTERIAN UNIVERSITY, and causing to be inflicted grievous bodily injuries on the person of RANDY BOWERS, who as a result of said injuries did die on the 15th day of December, contrary to statute and against the peace and dignity of the Commonwealth of Virginia.
GRAND JURY WITNESSES
Alan W. Grant, Valleydale Police Department
Timmy Healey, Valleydale Police Department
Howard F. Dobbins
Meagan Lucille LeBlanc
Courtney Ann Topping
( x ) A TRUE BILL
( ) NOT A TRUE BILL
FOREMAN OF THE GRAND JURY
Write a story for The Jeffersonville Herald.
Background: Assume it is now three months after the accident. At a pre-trial hearing a month ago, a judge dismissed the criminal charges against Hunter because Officers Grant and Healey forgot to read Hunter his Miranda rights when they questioned him after the accident. He has been living in Blue Ridge County since he was released from jail. He no longer lives with nor is dating Courtney Topping. On the advice of her lawyer, LeBlanc will not talk about the lawsuit.
In the Circuit Court of the Commonwealth of Virginia for the Blue Ridge Circuit
MEAGAN LUCILLE LeBLANC
MERIWETHER CHASE HUNTER,
Comes now the Plaintiff, by and through her undersigned attorney, and alleges:
For the purposes of the above-styled action and at all times material hereto Plaintiff was a resident of the Commonwealth of Virginia by dint of her attendance as a full-time student at Virginia Presbyterian University in the City of Valleydale, Virginia.
Plaintiff brings this action as an adult under the provisions of the laws of the Commonwealth of Virginia.
At all times material hereto Trafalgar Street was a paved, two-lane, two-way street upon which traffic moves in an easterly-westerly direction, within the duly and legally constituted boundaries of the City of Valleydale.
On or about December 15th, Plaintiff was riding as a passenger in a Ford Explorer sport-utility vehicle then operated by Defendant and traveling west on Trafalgar Street. At the time and place aforementioned Defendant was negligent in one or more of the following particulars:
1. In driving in excess of the legally posted speed limit.
2. In driving in the left, eastbound lane of Trafalgar Street in a clearly marked no passing zone, in violation of the traffic laws of the Commonwealth of Virginia.
3. In driving with a blood-alcohol level of .25, more than three times the legal limit under the laws of the Commonwealth of Virginia.
4. In failing to keep and maintain an adequate lookout for the other traffic upon and entering into Trafalgar Street.
5. In failing to keep the Ford Explorer vehicle under adequate control.
Because of the manner of the Defendant’s willful and negligent operation of said motor vehicle, Defendant did then and there cause said vehicle to strike another vehicle, being operated by Howard F. Dobbins in a safe and legal manner.
As a result of said collision, Defendant lost control of his vehicle and did cause it to crash into a concrete bridge abutment owned by Virginia Presbyterian University.
By reason of the negligence of the Defendant in one or more of the particulars alleged herein, the collision occurred and Plaintiff was caused to suffer serious and extensive bodily injuries, including an injury to the head with concussion of the brain and injury to the central nervous system, lacerations of the face and head, injury to the left leg with multiple fractures to bones of said leg, injury to the right arm with a compound fracture of the upper, or humerus, bone; and multiple bruises and abrasions about the head, body, and limbs, and was caused to suffer physical and emotional shock. Said injuries were permanent in nature, and by reason of the injuries, Plaintiff has and will continue to suffer pain, discomfort, inconvenience, disfigurement, disability and mental anguish.
By reason of the injuries, Plaintiff has been required to have an ambulance, to be hospitalized, and to have the services of physicians, nurses, technicians and the use of special medical and physical therapeutic equipment, medicines and supplies, all at the reasonable expense of $227,894.14, and claims compensatory damages in that sum. Plaintiff will by reason of her injuries continue to require medical and dental care for an indefinite period of time in the future, including costly and painful reconstructive surgery about her face and mouth. The total of her future medical expenses is unknown at this time. This Complaint will be amended when the full amount of her compensatory damages is known.
By reason of the injuries, Plaintiff has been and will continue to be unable to participate in intercollegiate athletics.
As a direct and proximate result of the Defendant’s negligence as alleged elsewhere herein, Defendant did cause the death of Randy Bowers, a passenger in the same vehicle driven by Defendant and in which Plaintiff was also a passenger. Plaintiff and deceased Bowers had been engaged and had made plans to be married upon Plaintiff’s graduation from Virginia Presbyterian University. As a result of Defendant’s negligence in causing the death of Bowers, Plaintiff has suffered egregious emotional distress and mental harm and anguish, as well as loss of consortium and companionship.
Prior to the accident, Defendant had been living in the same domicile as Plaintiff by dint of being in a relationship with one of Plaintiff’s housemates. By engaging in illegal activities, Defendant did cause his own arrest on drug charges and the arrest of several innocent parties in the house, including Plaintiff. As a result of Defendant’s illegal behavior which led to the arrests, Plaintiff suffered public humiliation, embarrassment and damage to reputation, and was forced to withdraw as a candidate for Valleydale City Council.
WHEREFORE, Plaintiff prays this honorable court for judgment against the Defendant for compensatory and punitive damages in excess of $2 million, for costs and disbursements incurred as a result of this action, and for such other and further relief as to the court may seem proper.
Teresita L. Sanchez-Rodriguez
Attorney for Plaintiff