NEWS ANALYSIS : Attorneys Turn Surrogate Mother Case Into Trial by Media

It was once a golden rule for lawyers: Do not try your case in the press.

That tarnished code has been blackened by attorneys on both sides of the Anna L. Johnson surrogate mother case. Indeed, the media--often accused of exploiting courtroom drama to sell newspapers or boost ratings--have been drawn intimately into this legal battle.

Lawyers contacted the press before the first court document was filed by Johnson, who seeks to keep the baby she was hired to bear for his genetic parents, Mark and Crispina Calvert. Attorneys have given dueling interviews to waiting TV cameras almost daily--while each side accuses the other of publicity-mongering. One lawyer accompanied Johnson onto the Phil Donahue talk show.

Inside the courtroom, Johnson has been grilled about what she told Donahue and what happened to the money she was paid to appear on the show. Judge Richard N. Parslow Jr. has chided the lawyers for grandstanding, and has asked his wife and clerk to monitor media coverage.

Last week, the Calverts’ lawyers forced The Times reporter covering the case to testify--and Johnson’s attorneys then sought to bar the reporter from the courtroom on the grounds that she was a witness.

Several legal experts interviewed last week suggested that when the judge issues his decision, expected today, only the lawyers will win.

Lawyers and judges in other highly publicized court cases declined to comment publicly on the media habits of their brethren in the Johnson case.

“Whether you win the big case or lose the big case, what people remember is that you were big enough to be in the big case,” said a legal veteran, whose career skyrocketed even though he lost a star-studded trial.

“It’s the old Hollywood line: ‘Say anything you want about me, as long as you spell my name right,’ ” he said.

Advocates for the baby boy are not so sure. They fear that the exposure may traumatize the month-old child, whom Johnson calls Matthew and the Calverts call Christopher Michael.

“The child’s right to privacy has been compromised by this three-ring circus,” said William G. Steiner, the guardian appointed by the court to represent the baby, on the day that three-dozen reporters, photographers and producers showed up in Orange County Superior Court to find out which “parents” would be allowed to take the baby home from the hospital.

“When you have lawyers more interested in publicity than in this child, it’s absolutely unforgivable,” said the baby’s attorney, Harold LaFlamme. “The one thing that surprises me right now is that they haven’t sold tickets.”

Fearing such exploitation, Parslow ordered the parties not to release photos of the child or take him places where he could be photographed. The order did not bar the media from scrambling to get a picture if they could. And the media did just that, with a mob of photographers ambushing the infant as he left the hospital. The Times put a picture of the newborn bundle arriving at the Calverts’ home on Page One, further inflaming the coverage war.

Attorneys for the Orange County Register and The Times objected to the judge’s order limiting access to the baby. They argued that the beleaguered Calverts might be forced to put blankets over their windows, creating an “unnatural situation.”

“What might possibly be unnatural is not leaving people alone in certain situations,” Parslow said. “Maybe people could back off just a little bit.”

The judge ultimately allowed a single photographer to take the baby’s picture and distribute it to other media, and the newborn was splashed across television screens and newspapers, including The Times, which ran the picture on the first page of its Orange County Metro section.

Johnson’s case is considered precedent setting because she is the first surrogate mother to seek parental rights to a baby to whom she is not genetically linked.

The boy was conceived in a petri dish from the Calverts’ egg and sperm, then implanted in Johnson’s womb. Mark Calvert testified that Johnson had promised to be an “incubator” for $10,000. Johnson, backed by “Baby M” surrogate mother Mary Beth Whitehead-Gould and other opponents of surrogate contracts, said she grew attached to the fetus as she carried him.

Lawyers for both sides maintain that the media--and hence the public--should be informed about the psychological, ethical and legal questions raised by this new biotechnological feat.

“We need to know everything we can about it so we can stop it,” said Johnson’s attorney, Richard C. Gilbert of Gilbert & Marlowe in Santa Ana.

“We would have much preferred to have privacy and anonymity,” said the Calverts’ attorney, Christian R. Van Deusen, of Van Deusen, Youmans and Walmsley of Santa Ana. “One of the reasons my clients felt that they had to speak out was because of the outrageous accusations made against them. If you don’t say ‘Wait a minute, that’s not true,’ it amounts to a tacit admission, so you have to speak out.”

In interviews last week, Gilbert said he and his client have been misquoted and had their remarks distorted by the press. But both he and Johnson stand by their decision to take their case to the national media.

“The media have been very helpful to me,” Johnson testified last week. “If it wasn’t for them, I wouldn’t have gotten world-renowned witnesses” to testify.

Gilbert said Johnson turned to the media in desperation, hoping that at least the publicity would allow the child to track her down later if he so desired.

“We had a mother who was going to lose her child and have her child taken away from her forever,” Gilbert said. “So she laid bread crumbs in the park so that the baby could eventually find his way back to his mother, Anna Johnson. And those bread crumbs are now laid coast to coast, continent to continent and around the world.”

Attorneys for the Calverts have attempted to imply that Johnson’s willingness to use the media to publicize her case demonstrates that she is an unfit mother. They subpoenaed Johnson’s former roommate, who testified that Johnson’s quest to keep the baby was motivated by a desire for money and publicity.

Both Gilbert and Van Deusen said their careers are sufficiently established not to require further promotion.

Meanwhile, Catherine Gewertz, a reporter for The Times, was forced to testify about damaging statements published after an August interview with Johnson. Gewertz had quoted Johnson as saying that she was not bonded to the baby, and Johnson later denied having made the remark.

The Calverts’ lawyers called Gewertz to the witness stand, and the reporter confirmed the remark. Gilbert tried unsuccessfully to have Gewertz barred from the courtroom because she was a witness in the case.

Gilbert said Friday that The Times should have assigned another reporter to the case as soon as Gewertz was subpoenaed.

“How can Gewertz or any journalist continue to maintain their objectivity when they know that they are going to be testifying and their credibility will be challenged?” Gilbert said.

“That sounds to me from afar like a lawyer grandstanding,” said Tom Goldstein, dean of UC Berkeley’s graduate school of journalism. “If what (Gilbert) said was the case, then you could basically shut down courtrooms to reporters by having them subpoenaed.”

Other attorneys called for comments on media coverage of the case said the problem with coverage of “big” court cases such as Johnson’s is the tendency of reporters to rely on material gathered on courthouse steps instead of inside the courtroom.

“When somebody goes out on the courthouse steps, what they’re giving you is not a fact, it’s their own opinion . . . and you guys should really be reporting the facts,” said Robert J. Perry, who prosecuted former auto maker John Z. DeLorean on cocaine charges and is now a partner at Epstein Becker Mulkeen & Green in Los Angeles.

The DeLorean case was considered a milestone in media coverage of trials because DeLorean’s defense attorney, Howard L. Weitzman, gave press conferences on the courthouse steps while prosecutors refrained from comment. DeLorean was acquitted, and Perry says the prosecution erred in believing that the jury would not be influenced by the publicity--though the government might have lost anyway.

“I do think it’s inappropriate to get personal with the other side, and I do think it’s inappropriate to try one’s case in the media,” Weitzman said, defining the latter as presenting facts to the press before they are introduced in court.