Bombing Trial Offers Latest Free Speech Battleground

The story of Timothy J. McVeigh’s alleged confession to the Oklahoma City bombing may have made its way onto the airwaves with today’s cyberspeed--the story broke on the Dallas Morning News’ Web site--but the issues it raises are as old as democracy.

In short, the story has put a new strain on the traditional American conflict between a free press and a fair trial.

“I don’t think there’s any question that they have affected the ability of [McVeigh] to get a fair trial,” said Gerald Lefcourt, president-elect of the National Assn. of Criminal Defense Lawyers. “I don’t believe as a matter of law we could have prohibited the Dallas Morning News from publishing it,” he conceded. But he added that weighing McVeigh’s right to a fair trial against the newspaper’s right to publish “would have been a close call.”

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“The Dallas Morning News believes it fulfilled its responsibility to report compelling information to the public,” the paper’s lawyer, Paul Watler, said in a statement Monday. To a gathering of reporters in Denver, he added: “We have engaged in no wrongdoing of any kind--civil, criminal or otherwise.”

The Morning News story, released on the newspaper’s Web site late Friday afternoon, spread through the Internet in seconds. It was quickly converted into news stories by wire services and transmitted to thousands of news outlets just in time for evening deadlines at the national networks. ABC and NBC both led their evening news shows with the story. “A Dallas paper breaks a potential bombshell,” NBC Nightly News anchor Brian Williams told his viewers.

The article said that, based on summaries of a member of McVeigh’s defense team, McVeigh had explained that it was necessary to blow up the Alfred P. Murrah Federal Building in daylight hours because “we needed a body count to make our point.”

A total of 168 people were killed and more than 500 were wounded in the April 1995 blast in Oklahoma City.

McVeigh has pleaded not guilty. Stephen Jones, his court-appointed lawyer, told reporters that the documents cited by the Morning News were stolen from his computer files, that this was not a confession by his client and that the newspaper showed a “callous indifference” to the way its stories affected his client’s right to a fair trial.

Although the story was carried by virtually every major news outlet, its use by Denver television stations and by both Denver newspapers led some lawyers to worry about whether the news had “poisoned the jury pool.”

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Dennis Britton, editor-in-chief at the Denver Post, said that his paper ran the Dallas story surrounded by other stories giving views from McVeigh’s lawyer, journalists and other attorneys on the case.

“I don’t think it will cause a problem with the trial,” Britton said. “If my memory is correct, there has not been a case in the history of the U.S. in which pretrial publicity has ruined the trial.”

At the Rocky Mountain News, editor Robert W. Burdick said that after the story had run on the Internet, local and national television, CNN International and the radio, he believed that he needed to run it so that potential jurors could judge the story for themselves.

As for whether the Dallas paper should have published the story, Burdick, like others, said that once a story like that arrives on your desk, it’s almost impossible not to run it.

“Frankly, if I knew they had the story and sat on it, then that would be a serious problem,” he said.

“Confessions are printed all the time prior to the impaneling of a jury trial and there is always a big whine about it from the defense lawyers,” said 1st Amendment lawyer Bruce Sanford of Washington, D.C. “Either they [the court] will have to change the venue or do more detailed interviews with jurors before picking them.”

Sanford said that the stories raise not a legal question but an issue of news judgment.