Comment: The ‘burden of reality’ in high profile court cases falls on you

HONOLULU—Two weeks ago, chances were extremely good that you didnt know the names Christopher Deedy or Kollin Kealii Elderts. Now, chances are also extremely good that you have not only heard both names, but have formed, or at least begun to form, an opinion about what really happened bewteen the two men that left Kailua resident Elderts shot to death and State Department Agent Deedy accused of second degree murder. 

Just hours after the shooting, there were already those who were pointing accusative fingers and speaking with certainty that they had enough facts to assign guilt. The phrase, “Justice for Kollin” made its way into the lexicon of many who didnt even know him, much less all the facts of how he and Deedy came to be at the Waikiki McDonalds at three in the morning. There were also those who blamed APEC for the trouble. 

To be sure, the tension between the First Amendment and the Sixth Amendment is an old argument and the shifting balance of taste, access to information, and respect for due process continues to raise the question: What’s appropriate to discuss publically during an investigation? And its corollary: Will what is discussed in the public sphere prejudice a jury?

Criminal attorney Howard Luke says there are different levels of responsibility that depend on who is speaking. The public can say whatever it likes so long as no violence happens. Media has a higher level of responsibility, but the media is protected. “New York Times v. Sullivan” and other cases afford media protection unless there is knowing falsity or a reckless disregard for the truth. When it comes to the police and the prosecutors, Luke says, they have to be very careful. Specific rules of professional conduct prohibit commentary about a pending case and once someone is arrested, you can be sure a case is pending.

The attorneys for the parties, however, have a different responsibility as attorneys in general. Attorneys for the parties can make comments in the media and then change those comments regardless of their influence on public opinion.

Hawaii Pacific University’s communications chair, Professor John Hart, doesn’t see any of this as a detriment to the probability of a fair trial. “America as a culture is a black-and-white culture,” Hart says. “We do want to assign blame and, at the same time, all stories occur in a context.” On the face of it, many people may be judging the Deedy case as a “mainland versus local guy” story, Hart explains.

That kind of prejudice does show up when someone gets on a jury according to Luke, but, he says, “the courts are extremely scrupulous in attempting to find a fair and impartial jury. What some people may call competing interests— that is the First Amendment right to free speech and what I would call a complementary interest, the right to a fair trial—go hand-in-hand.”

Even so, he says most people bring into the courtroom preconceived notions about what happend if a case is highly publicized, and he believes that would happen in this case. Hart adds: “Cases with a lot of publicity have a higher bar, but if you look at the research in total, it’s very clear that the tension between the First Amendment and the Sixth Amendment has not resulted in unfair trials.”

But it does put an added burden on attorneys and judges, according to Luke.

“The cost to the justice system is this,” Luke says, “sometimes if you have individual voir dire—which is a fancy phrase to explain the process by which a jury is selected by speaking to individual jurors outside the entire array—then you have the situation that it can take days, sometimes weeks, and in some cases a month or two, to get a fair jury or hopefully fair and impartial jury. ... The trial judge will have to be especially vigilant in assuring that he (Deedy) does receive a fair trial.”

Modern communication technology and social media allow unvetted stories or opinions masquerading as stories on blogs to be posted and proliferate online. Once, editors queried traditional journalists and helped shape a story before it went public. In their absence, the burden of reality falls even more squarely on the news consumer, meaning consumers must challenge themselves to read more critically ... and ask themselves if what they are reading confuses emotion or manipulation with fact. 

Beyond that point, Hart cautions that we shouldn’t over-think the fair trial issue. Trials such as the Casey Anthony case, he says, would prove that public opinion does not influence the jury, given the disparity between the actual verdict and the expected and discussed outcome as promulgated by some in the public and in the media. Hart also believes in the better nature of people once they do sit on a jury.

“Most of the time, people are willing to go in there and they understand concept of innocent until proven guilty,” Hart says. “They understand the concept of burden of proof, so I don’t see why we can’t talk about these cases. I do understand that it does make it a harder job for judges to vet a jury, but the public does have the right to know. I haven’t seen any media mishandling in this case. Obviously people with their own agendas will attempt to seize this moment for their own purposes, but at the end of the day, is this person going to get a fair trial? I think so.”

The entire interview with Howard Luke and John Hart is on the Town Square archive at hawaiipublicradio.org. If you would like to share a little BakTalk of your own about what you think is appropriate to talk about during the discovery phase of an investigation or during a trial, reach Beth-Ann Kozlovich at [email protected] or send a letter to the editor to [email protected].