Free-Spending Tabloid Media Causing Judicial Concerns

The dramatic nature of the O.J. Simpson murder case has intersected with the growth of tabloid media to produce a landmark moment in checkbook journalism.

“More money will be spent than ever before in the history of the press” on exclusive interviews with key figures in the case, said Stephen W. Coz, senior editor of the National Enquirer.

Indeed, Simpson’s friend Al Cowlings has been offered “up to $1 million for his story,” but declined that offer and others, according to his attorney, Donald M. Re.

Most mainstream news organizations do not pay for information, although supermarket scandal sheets and sensational TV programs regularly do. And this week, as one of the most closely watched preliminary hearings in history got under way, the role of the tabloids moved into the foreground and generated concern that they are interfering with the judicial process.

The first two witnesses at the hearing--who said Simpson had purchased a 15-inch knife--revealed in court that the Enquirer was paying them $12,500 for their exclusive story. That courtroom bombshell touched off a battle between the defense and the prosecution over witness credibility.

The whole spectacle prompted lawyers and others to moan that the tabloid press is contaminating the legal system. And law professors noted that nothing short of trampling on the 1st Amendment can be done about witnesses or potential witnesses talking for cash.

“I think it’s a real burgeoning problem,” said Los Angeles attorney Johnnie L. Cochran Jr., who has had firsthand experience with tabloids while representing singer Michael Jackson, who had been accused of molesting a juvenile.

Cochran said two witnesses sold stories to tabloid TV shows that contradicted and were more sensational than what they said in sworn depositions in a civil suit against Jackson. Ultimately, the case settled out of court.

Cochran’s adversary in that case, Santa Monica attorney Larry R. Feldman, sided with him on the issue. “I think that the tabloid media seriously interfere with the judicial process,” Feldman said.

In the Jackson civil case, Feldman said he was shocked to learn that one of his potentially key witnesses had been paid $15,000 for an exclusive interview with “Hard Copy.” Feldman said he was concerned that the witness’s actions would have eroded her credibility if she had been called to the witness stand during a trial.

That’s exactly what happened to Anne W. Mercer during the 1991 West Palm Beach, Fla., trial in which William Kennedy Smith was acquitted of rape charges. Smith’s attorney, Roy E. Black, accused Mercer of changing her testimony to corroborate the story of a friend who was the alleged rape victim.

Black said Mercer invented testimony to embarrass Smith’s uncle, Sen. Edward M. Kennedy (D-Mass.), so she could sell her story to the television show “A Current Affair” for $40,000. “Isn’t it a fact this whole program was created just to embarrass the Kennedy family?” Black asked rhetorically.

He also attacked Mercer’s account with a series of questions. For example, why did she first tell police the alleged victim had said Kennedy watched the purported rape, but then drop that assertion?

Concern about a similar cross-examination was apparently among the reasons why the Los Angeles district attorney’s office decided to drop Jill Shively as a witness in the Simpson case after she was interviewed on “Hard Copy.” Her grand jury testimony has not been made public, but she told “Hard Copy” that she had seen Simpson driving near the murder scene about the time the crimes occurred.

The prosecutors did not learn about Shively’s $5,000 deal until after she had testified before the grand jury, according to attorney James M. Epstein. He said that Shively asked him to represent her when she became concerned that she might be charged with a crime by the district attorney’s office.

“They were unhappy that she had gone on ‘Hard Copy’ because they believed she had destroyed herself as a witness for them,” Epstein said. “Once I confirmed she wasn’t going to be charged with a crime, that was the end of my representation,” Epstein said Friday.

“For a prosecutor, it must be a terribly frustrating feeling (to lose a witness this way) because the prosecutor has nothing to offer to persuade a witness not to sell his story or her story to a tabloid or a movie producer or whoever’s buying,” said Jonathan Kirsch, a Century City attorney who specializes in media law.

“You have to appeal to their higher nature and their sense of duty,” which may take a back seat when large sums are offered, Kirsch said.

And in the Simpson case, the money is certainly flying. In addition to Cowlings, who accompanied the football legend on the notorious, televised low-speed chase, cash for interviews also has been offered to friends of Simpson’s ex-wife, Nicole. Simpson is accused of killing her and Ronald Lyle Goldman.

As the preliminary hearing got under way Thursday, the first witnesses made two stunning statements: that Simpson had purchased a 15-inch knife at their Downtown cutlery store, and that they had sold their account to the Enquirer.

Sensing potential credibility problems for these government witnesses, Deputy Dist. Atty. William Hodgman nimbly elicited testimony about the paid interviews from the witnesses--store co-owner Allen Wattenberg and sales clerk Jose Camacho.

Nonetheless, Simpson’s defense lawyer, Robert L. Shapiro, immediately attempted to erode Camacho’s credibility by accusing him of selling his story to the highest bidder.

Camacho retorted that he had told the truth to the Enquirer and to the grand jury, which had been taking testimony in the case before it was disbanded out of fears it was affected by prejudicial publicity. He also defended himself by saying an employee of the district attorney’s office told him he could talk.

After court, prosecutors Hodgman and Marcia Clark were put in the awkward position of trying to simultaneously shore up Camacho’s truthfulness about selling Simpson a knife, while emphatically denying that Camacho had been told he could talk to the press.

Clark said she thought that the paid interview would not have a serious impact on the case. And Coz, the Enquirer editor, emphatically maintained that his publication had done nothing wrong.

“We did not ask Mr. Camacho or the owners of the store to reveal anything about the grand jury process whatsoever,” Coz said. “Let me state our policy: We pay for truthful information. We don’t make any bones about that.”

Coz added: “I think Marcia Clark made a very good point when she said: ‘These people were telling the truth; they’re being asked to tell what happened. That’s no more nor less than what they’re being asked to do in court for free.’ When I heard her say that, I literally applauded her.”

Theo Wilson, who during a lengthy career at the New York Daily News covered many high-profile murder cases, said she was disgusted by the upsurge in checkbook journalism demonstrated during the Simpson case and other recent celebrity trials.

“I don’t think any (immediate) harm was done with Camacho, but great harm could be done. You could create a mistrial,” Wilson said.

“How do we trust a witness if money becomes a factor in who they’re going to talk to? If those tabloids don’t start to regulate themselves, I fear for what could happen,” she said.

But Steve Dunleavy, senior correspondent of “A Current Affair,” which has done at least 20 segments on the Simpson case, the brouhaha is much ado about nothing.

“I don’t know the difference between a news organization paying for a witness and a lawyer paying for a witness,” Dunleavy said.

“You have plenty of rent-a-shrinks. I’ve seen them all my life,” Dunleavy said, referring to psychiatrists who testify for pay.

Others agreed that there is a long tradition of lawyers using paid experts in trials and in other instances giving criminals more lenient sentences in exchange for offering testimony against their confederates.

“Prosecutors use the testimony of paid informants and people who are paid with mercy from the system,” said UCLA law professor John S. Wylie Jr., a former federal prosecutor.

Dunleavy declined to state whether his show has paid anyone for their accounts in the Simpson saga. “As a policy, we do not reveal our sources or how we gather news, just like the New York Times, the L.A. Times, ABC, NBC.”

However, Ben Bagdikian, a former high-ranking editor at the Washington Post and ex-dean of the UC Berkeley School of Journalism, sharply disagreed: “If the practice of paying for interviews became widespread, the whole process of reporting would be distorted.”

The long-term effect on the legal system is unclear, according to USC law professor Erwin Chemerinsky. “There is the danger that people, for the sake of money, might lie, exaggerate or unconsciously embellish.”

He said that in some instances jurors would look askance at the testimony of witnesses who had been paid for interviews, but that in other instances they would be accorded credibility if their testimony is consistent with what they told a reporter.

UCLA criminal law professor Peter Arenella was alarmed by what he has seen so far in the Simpson case. “What Thursday’s hearing reminded us is how much tabloid journalism’s interference with appropriate criminal investigations by the state can impair the district attorney’s ability to put on truthful testimony.”

Law professors and attorneys said there is no way to prevent witnesses from talking for cash without violating fundamental free speech rights.

“What can be done? Nothing, if we want to keep the 1st Amendment,” said New York University law professor Stephen Gillers, who specializes in legal ethics. “The publication has a right to offer money in exchange for a story. And the witness has a right to sell the story.”

Jurors, who in some cases have also been talking for money after they served in celebrated cases, have become a concern as well. Unlike that of witnesses, jurors’ conduct can be regulated in some ways. For example, the state of New York in 1990, in the aftermath of the Bernhard H. Goetz subway slayings case, made it a misdemeanor for sitting jurors to make a deal to sell their story to the media.