When Did Murder Become Entertainment?
There is a difference between a novel and a news story in a newspaper, even though both are printed on paper. Similarly, there is a difference between a legal drama like Law and Order, and what actually happens in the nation's criminal courts. The fact is that those who practice in the criminal and civil justice systems know that these dramas badly depict the actual legal process.
In the early 1900s several daily newspapers battled for circulation in the New York City area. Several used sensational news - where accounts were not objectively reported and lurid details of the events were sensationalized - to boost sales of their papers. This led to the newspaper reporters being called "yellow journalists" by their peers and critics because the job of the news media is to report the news, not serve it up as entertainment. Even today some New York newspapers serve up a daily dose of sensationalized news and lead with scandal whenever possible.
Television news is not immune to this phenomenon, and the buzzword around many a television news station is "if it bleeds, it leads." Because television is funded by advertising, and advertising depends on ratings, yellow journalism is a far greater threat in the electronic media than in the print media.
CNN, Fox News, and similar 24 hour cable news shows have, however, taken yellow journalism to a new height. They have elevated it to an art form. Instead of merely reporting the gory details of crime and punishment, they instead merge what appears to be investigative reporting with a focus on entertainment, and in so doing are setting the stage to ensure that defendants in criminal cases get much more than their 15 minutes of fame. For many this is a validation of their work. Think Ted Kaczynski. For others, it could be a literal death sentence since the media so poisons the jury pool that a fair trial anywhere is likely impossible. It frequently takes 18 months to bring a case to trial. Jurors everywhere watch cable news. How many are really going to be able to put facts heard on the media out of their head?
When did murder begin to entertain us as a culture? Those of us with a bias for life, and who've spent our lives trying to save lives, find this strange. How did the murder of a child and the anger we feel over that crime morph into a nightly "hang-em high" roundtable? Are we really that empty in our personal lives that we have to feed off the pain of others?
Consider the handling of the Casey Anthony case by CNN pundit Nancy Grace. Grace, a lawyer and former prosecutor should know better, and it's appalling that a lawyer would knowingly lend her status as an officer of the court to an enterprise that, while not necessarily designed to destroy the right of an accused to a fair trial, certainly is capable of achieving it.
To be sure the Casey Anthony case is certainly sensational. What appears to be a rather narcissistic young mother, Casey, is accused of murdering her child, Caylee Marie, and hiding the body in a trash bag. Importantly, while there is likely some physical evidence that the prosecutor has not disclosed, there are no witnesses, no smoking guns, and no direct evidence of the accused's guilt in that case. Yet, even on COPS, the Fox Entertainment Division's pseudo-reality series aimed and following real cops on real calls, the program begins with the advisory that "all suspects are considered innocent until proved guilty in a court of law." Grace never reminds her listeners of this. One assumes because, at least in Grace's mind, that matter is already settled.
Grace has all the charm of a spitting cobra as she "debates" with guests on her show. Say something Nancy disagrees with and the venom and vitriol comes spewing out. Whenever someone tries to suggest that an arrested suspect might actually be factually innocent, Grace nearly comes unglued. Being a "guest" or panelist on Nancy Grace is an invitation to be abused. And yet, somehow Grace, who built her reputation on her book Objection, which tries to lay the blame for defense verdicts in criminal trials at the feet of defense attorneys and the media, is the foremost member of the media at fault if a verdict gets overturned on the basis of pretrial publicity. In some respects, Nancy Grace is a defense attorney's best friend on appeal. But this is not the worst aspect of the show from a legal perspective, however. It's the disregard for the legal process inside the courtroom.
In a court room, juries are not permitted to speculate. They are asked to decide the case on the basis of the evidence presented. This is designed to ensure that the jury bases its decision on relevant facts, and not on irrelevant facts. For example, unless a defendant takes the stand in her own defense, the state cannot bring up the fact of any prior convictions, even if those convictions were for the same crime. So the fact that a bank robbery suspect may have twice robbed banks in the past is not admissible in the current bank robbery trial because a jury might speculate that once a person was once a bank robber, they were always a bank robber. Similarly, witnesses cannot speculate about why a person might have taken a particular action. If they know, they can tell. But asking a witness to speculate - even an expert witness - violates the rules of evidence.
Grace knows all this, of course, because she was a former prosecutor. But she routinely asks these "why" questions on her show, and even on her website where today's "headline" suggests a "major twist" in one of the cases the show has been covering. The teaser tells the viewers: "Does a letter from a jailed friend ... break the ... case wide open, outlining details of an alleged drug-fueled party the crucial night the little girl vanished? Nancy Grace has the latest breaking developments."
Now, often the viewing public never sees the alleged letter, and instead hears from "informed sources close to the investigation who requested anonymity." The contents of the letter are not disclosed, only the salacious information necessary to get the viewer at home to watch. Grace frequently reminds us to watch because we don't want to make her mad. "Don't make me issue a warrant," she tells her viewers. In spite of, or perhaps because of this peel-the-paint-off-a-battleship pugilistic style of interviewing, Grace is a ratings sensation for CNN.
Lawyers subscribe to an ethical creed that requires them to respect the right of any person to a fair trial. In fact, the Missouri Rule states "A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial [out-of-court] statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."
The prosecutor, then, can't go on television and talk about the case, and neither can the defense attorney, because they are bound by a rule that requires them to respect the rights of the accused. Every lawyer understands this rule. Nancy Grace certainly understands it. And yet, while she is not within the explicit scope of the rule because she is a media person, she should certainly be within the spirit of it. Yet, Grace continues, night after night, to poison the pool of prospective jurors in criminal cases around the country with unfair speculation and innuendo because it makes for good ratings (Grace has the best ratings on Cable for her time slot, according to her page on CNN). It also makes for great spin-offs. Grace is preceded by Jane Velez-Mitchell who frequently teases Grace's lead stories, and frequently conducts the same "panel interviews" featuring lawyers and other experts. Mitchell, however, lacks the caustic attitude of Grace, and although probably not intentionally, comes across as perhaps a bit more fair in her questions.
Night after night cable news features the likes of Grace and Fox's Greta Van Susteren (also a lawyer) spin a think mix of invective and speculation about criminal cases with guests and even other lawyers calling suspects names like "scumbag" and "dirtbag." It isn't objective reporting of facts; it is nothing more than sensationalism of the social depravity inherent in all crime. As a nation we should clearly separate entertainment (Law and Order) from news (Nancy Grace). That we don't speaks volumes about how media executives feel about the average viewer, and how captive television news is to ratings.