Trying Criminal Cases in the Court of Public Opinion

A lot of concern is being expressed about the impact of pretrial publicity on the O.J. Simpson murder case.

On Friday, Superior Court Judge Cecil J. Mills, saying grand jurors had been exposed to such pretrial publicity, halted their work while they were considering an indictment of Simpson.

Just one day earlier, our top law enforcement officials took a vow of silence after Los Angeles City Atty. James Hahn released the now-famous 911 tapes to news organizations that had requested them under the California Public Records Act.

It was a little late. By the time prosecutors took the pledge, potential jurors all over the county had heard or read the taped dialogue between a frightened Nicole Brown Simpson, the 911 operator and a man, identified as O.J. Simpson, cursing and screaming in the background.

You may wonder why the tapes were released at all. Or why they were broadcast or printed. Or why prosecutors, cops and the defense have furnished so much information to the news media since before Simpson’s arrest.

The reason is simple. This is the way the criminal justice system works. Even before presenting the case in the official court, each side battles in the court of public opinion. This is done to create a favorable atmosphere in the community and to influence potential jurors.

Both the prosecutors and the defense use the news media to reach this unofficial but important court. In addition, the press acts as a watchdog, on the lookout for bungling or corrupt cops, attorneys and judges. For better or for worse, we in the news business are part of the process.

This is not new. It’s been going on since the modern newspaper came into existence in the late 19th Century. The process has been magnified and intensified by the immediacy and power of television.

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I’m an expert on pretrial publicity because that’s what I used to do for a living.

I started out in the Wild West newspaper world of the 1950s, working for the Oakland Tribune across the bay from San Francisco. The Tribune and the four San Francisco dailies fiercely competed on every big crime story. My paper had at least six editions a day, and when there was a hot murder, the editors wanted a new headline for each of them.

The competition was especially rough when 14-year-old Stephanie Bryan vanished on her way home from junior high school in Berkeley. Suspicion quickly turned to Burton Abbott, a 28-year-old University of California accounting major whose wife found Stephanie’s wallet and purse in their basement.

As a copy messenger, I watched from the sidelines as our star reporters battled their rivals on the other papers in a search for Stephanie. Her body was found by a reporter, Ed Montgomery of the San Francisco Examiner. He traveled to the far Northern California mountains where the Abbotts had a summer cabin. He and a local rancher’s team of dogs found the body buried about 100 yards from the cabin, a discovery that eventually sent Abbott to the gas chamber.

The story taught me about competition, a lesson I took with me when I was promoted to reporter. I worked in the old Oakland City Hall, in a pressroom decorated with bullet holes left by the cops who came in at night to drink with the reporters.

A big part of my job was covering the detectives. Trying to stay ahead, I worked hard at trying to develop inside sources. Deputy Chief Jack Brierly, in charge of the detectives, was a friend of my boss and gave me inside information. I also got news about the various accused suspects when I talked each morning with the Oakland Police Department’s top homicide detective, Lt. Hubert Murray. He’s an ace investigator whom my colleague, Al Martinez, then a young Tribune reporter, called “the Human Lie Detector.”

By the time the suspect was ready for trial, the cops’ case had pretty well been presented in the newspaper. This was somewhat balanced by tips and insights from media-wise defense lawyers, who gained favor with the pressroom crew by sending them bottles of whiskey.

I’m sure civil libertarians, law school professors and journalism ethicists look down on such practices. I, on the other hand, look upon it as an education that gives me a unique perspective on the Simpson case and others like it.

I am offended when incorrect information makes the news. But that’s a question of accuracy, not the idea of reporters investigating a crime on their own, gathering information and, yes, accepting leaks from reliable unnamed sources.

We need all of that, and I’ll tell you why.

Although the defense, prosecution, cops and judges often fight in public, the criminal justice system is really a tight, elitist club. Its members don’t want the press snooping around or the public let in on the way the system works.

The press is the public’s representative in this process, breaking through the secrecy in search of corruption, error and miscarriages of justice. There have been cases, not just in the movies, in which dedicated reporters have saved innocent men and women from the mistakes of bungling defense attorneys, overzealous prosecutors and bad judges. Reporters have also found evidence overlooked by the criminal justice system, just the way the Examiner’s Ed Montgomery did with his dogs.

The publicity this week got me thinking about all I’ve learned since my first job and those morning talks with Lt. Murray, the Human Lie Detector.

What would I do, I wondered, if I were reporting the Simpson story and a latter-day Hubie Murray, a person of the same reliability and honesty, leaked some important information to me.

Would I say: “Lieutenant, stop, I don’t want to listen to you. You are violating my journalistic ethics”? Today’s ethicists frown on anonymous sources or buddying up to cops.

Not a chance. I’d take notes, read his reports, do more reporting, and if the information checked out, call my boss and say: “I’ve got a hell of a story.”