Chapter
2:
COVERING TRIALS - HIGH PROFILE AND OTHERWISE
By LINDA DEUTSCH
Associated Press Special Correspondent
If you cover the
courts long enough, you will one day encounter a trial that stands apart
from the rest, a case that captures public attention and may even become
a public obsession.
Yes, the O.J. Simpson
trial is the perfect example. But there have been many others. We remember
them because they became part of our cultural history: Sirhan Sirhan,
Charles Manson, Patty Hearst, John DeLorean, the Menendez Brothers,
the Rodney King police officers.
Some wind up with
nicknames: the Boston Strangler, the Unabomber, Son of Sam, the Night
Stalker, to name a few. And some, although they do not become nationwide
sensations, may have an impact on a single community that makes them
significant.
Because the O.J.
Simpson trial was televised, it served as a learning laboratory for
those unfamiliar with trial procedure. True, nothing about it was normal.
But it can be instructive in looking at the stages of a trial, the potential
pitfalls and the absolute essentials.
Since criminal trials
are more likely to capture headlines, let's look at procedures from
beginning to end.
The first news in
any criminal case is the discovery of a crime, violent or non-violent.
(A financial scam, for instance, can be just as big news as a murder.)
In the Simpson case the discovery of the slashed bodies of Nicole Brown
Simpson and Ronald Goldman in an upper class neighborhood and the quick
link to the name of a famous athlete set off alarms in newsrooms.
THE ARREST
Some crimes may linger as police investigate and seek a suspect. If
you're assigned to the case, keep in touch with the investigating officers
who may tip you when an arrest is imminent. In the Simpson case, the
arrest happened on national TV after a bizarre chase, but it's not always
that easy. Police may pick up a suspect and tell no one. Once you find
out that someone is in custody, be sure to clarify whether the person
is just being detained for questioning or booked and "on suspicion of"
committing a crime. Later, when a case is filed, you can say they were
charged.
PRETRIAL PROCEEDINGS
Once someone is
charged with a crime a series of steps follow:
ARRAIGNMENT - The defendant appears in court with a lawyer and
a judge formally informs them of the charges. Bail may be set or denied
and a further hearing is scheduled. The first judge is not likely to
be the trial judge. In Simpson, the case first went to a Municipal Court
judge and was later transferred to Superior Court.
GRAND JURY INDICTMENT
- In state or federal court, a grand jury may be convened to examine
the evidence in a felony case. Such hearings are secret, although leaks
can occur. If an indictment is issued, a second arraignment will be
held. Many indictments include an affidavit stating the facts of the
case; they can provide news breaks.
PRELIMINARY HEARING
- In many state courts, the grand jury is not used and a preliminary
hearing is held to determine whether there is sufficient evidence to
proceed to trial. The hearing is a mini-trial, although it is quite
one-sided. The prosecution presents a very brief overview of its evidence,
perhaps a few key witnesses. The defense may cross-examine, rarely presents
evidence (known as an affirmative defense) and argues to dismiss the
case before trial. The prosecutor argues there is probable cause to
send the case to trial. Be aware that many criminal cases are disposed
of at this level. Don't skip the prelim. Legal precedents allow reporters
to be present at preliminary hearings.
PLEA - Once
a defendant is "held to answer" a plea will be entered, usually not
guilty. But a defendant also may choose to plead guilty or no contest,
thus aborting the trial.
PRETRIAL HEARINGS
AND RULINGS - A panoply of issues must be decided before a trial
starts. Lawyers will make motions to dismiss the charges. They will
challenge the admissibility of certain evidence and question the legality
of police behavior. Was a Miranda warning given? Was physical evidence
contaminated? A change-of-venue motion may seek to relocate the trial
on a claim that publicity has poisoned the atmosphere against a defendant.
Such motions are rarely granted but it does happen. In a high-profile
trial, there may be a move to sequester the jury. And there is always
a demand for "discovery" of evidence being held by the opposing side.
EFFORTS TO EXCLUDE
THE PRESS - It is in pretrial that one side or the other - or the
court on its own motion - may get the idea that the case would be easier
to conduct without the news media present. Such efforts have led to
a long list of legal decisions ensuring openness in the courts. Specific
rulings have addressed preliminary hearings, pretrial hearings and jury
selection. KNOW YOUR RIGHTS AND PROTEST IF A JUDGE TRIES TO CLOSE THE
COURTROOM! ASK FOR TIME TO CALL A LAWYER, AND INFORM YOUR SUPERVISOR.
THE TRIAL
- Although we are more familiar with jury trials, be aware that a defendant
can request a bench trial in which the judge serves as the finder of
fact, and decides guilt or innocence. These proceedings are rare. The
procedural steps of a trial are very much like what was seen on TV in
the Simpson trial.
JURY SELECTION
- The beginning of jury selection, also known as voir dire, is the official
start of the trial. When a panel of prospective jurors is sworn in,
"jeopardy attaches" and any effort to stop the trial after that requires
a mistrial motion. Prospective jurors are questioned either by lawyers,
the judge or both about their backgrounds and any preconceived biases
about the case. Lawyers may exercise "challenges for cause" if they
can prove a juror unqualified to serve or "peremptory challenges" in
which they remove a juror without stating a cause. Ultimately, a panel
of 12 jurors and a number of alternate jurors (determined by the judge)
are selected and sworn.
OPENING STATEMENTS
- A prosecutor and defense attorney deliver opening statements to the
jury. They are not allowed to argue their cases at this point so do
not refer to them as opening "arguments," a common mistake. The opening
statement is a roadmap of the case, laying out the evidence they expect
to present.
TESTIMONY
- The prosecution goes first because it bears "the burden of proof."
All defendants are presumed innocent unless proven guilty. If, after
the prosecution case, the defense believes guilt has not been proved
beyond a reasonable doubt, a defense attorney may choose to rest without
presenting any evidence. Sometimes the entire defense case is made during
cross-examination of prosecution witnesses. More often, the defense
calls its own witnesses - possibly including the defendant. The prosecution
answers with a few rebuttal witnesses and both sides rest.
FINAL ARGUMENTS
- With all the evidence in, lawyers now have the option to argue their
cases. They will seek to interpret the evidence for jurors in a way
that will support their respective cases. The prosecutor gets to speak
twice -- opening and closing — again, because of the burden of proof.
INSTRUCTIONS
AND DELIBERATIONS - Lawyers submit to the judge lists of proposed
legal instructions and a final set is agreed upon. The instructions
may seem dry and boring to an outsider but they can be extremely important
in determining the outcome. Jurors pay close attention to them, and
you should too. Doors to the courtroom are locked while instructions
are read and jurors are then sent to deliberate.
It may seem like
simple common sense, but it must be noted that a reporter should NEVER
TRY TO CONTACT A JUROR during deliberations or at any time during the
trial. That can be interpreted as jury tampering and could lead to a
mistrial, not to mention dire consequences for the reporter. Don't ever
speak to a juror during the trial and avoid being overheard by them
when making phone calls.
THE VERDICT
- Once a unanimous verdict is reached, jurors notify the court bailiff.
You may have arranged for the bailiff to call you or you may be staking
out the verdict if it's a big trial. The judge announces when the verdict
will be returned; the defendant is brought to court and the jury returns
with its decision. The verdict, sealed in an envelope, is handed to
the judge who studies it and usually hands it to the clerk to be read.
It's a moment of high drama and a reporter needs to watch every player
-- defendant, lawyers, families, friends. Reaction can be muted or emotional.
If the verdict is guilty, a sentencing date is scheduled and the defendant
is returned to jail. If innocent, the defendant is free.
DEADLOCK
- If the jury cannot agree on a verdict and reports itself hopelessly
deadlocked, a mistrial is declared. The prosecution must then decide
if it wants to refile the charges and pursue another trial. The whole
process may begin again.
PENALTY -
In many courts, a guilty finding in a first-degree murder trial may
be followed by a "penalty phase" of the trial. In jurisdictions with
capital punishment, the same jury is asked to decide whether the defendant
should live or die. Penalty phase trials are often emotional affairs.
The defense offers "evidence in mitigation," seeking to show psychological
and other reasons why a defendant should not receive the death penalty.
The defendant's family often testifies in a bid for mercy. The jury's
verdict on penalty is a recommendation; the judge must actually impose
sentence. Judges rarely overturn the jury's decision. But in the case
of a death penalty, the judge has the option of reducing it to life.
POST TRIAL INTERVIEWS
- Once the trial is over and verdicts are rendered, everyone is free
to talk - even the jurors. Now you can ask all those questions. In a
high-profile trial, it is advisable to ask the judge to allow a jury
press conference. This prevents a stampede in the hallways with reporters
attempting to stop fleeing jurors. In smaller trials, the jurors may
be eager to talk. They may also recognize you if you've been covering
regularly, and will respond to a friendly face. In some cases, jurors
just refuse to comment; it's a reflex action. If you can reach them
later, they may change their minds.
SENTENCING
- Sometime after a guilty verdict, the defendant returns to court at
a set time for formal imposition of sentence. It can be a powerful scene.
In some states, victims or their survivors are permitted to make statements
that can be heart rending. The defendant also has the opportunity to
speak. The judge imposes sentence and often delivers a speech explaining
the reasons for the sentence.
This may seem like
the grand finale, but in many cases it is just the beginning. The appeals
court is the next stop on the long road to justice.
Chapter
3: STATE APPELLATE COURTS