Articles in the issue focus on media and litigation and emerging  developments in e-Practice. Famed death penalty defense attorney Andrea Lyon takes the media to task for sensational coverage by some media outlets of extremely high-profile criminal trials, such as the recent Casey Anthony murder case (in which Lyon was part of the defense team). Mark Kogan, meanwhile, examines the rise of public relations as an integral part of litigation strategies in many cases and explores what actions, if any, courts can take to ensure that such these strategies do not affect the verdict. And prosecutor Peter Crusco looks at a
specific type of external communication outside the courtroom: criminal defendants and heir attorneys and supporters setting up websites to solicit sympathy for their cases, and perhaps to intimidate investigators and witnesses.

In other articles in the issue, Steven Cerny and Daniel Dugan examine the use of technology in litigation in a different way: in the courtroom, as part of the parties’ trial presentations. Cerny, a litigator, explains how litigants can obtain social media information in discovery and authenticate it as evidence for presentation in court during trial. Dugan, a trial consultant, explores the psychology of juries and describes best practices for using modern technological tools to effectively present evidence and information at trial.

The journal, released at a conference in Santa Clara, Cal., is a publication of the Donald W. Reynolds National Center for Courts and Media. The Center, a program of the Reynolds School of Journalism at the University of Nevada, Reno that also is also affiliated with the National Judicial College, promotes research and scholarship on the interaction of the courts and the media, including conflicts between free speech rights under the First Amendment and fair trial rights under the Sixth Amendment.

When it comes to media coverage of the courts, it is not a good thing to never know what you’re going to get.

That’s why the involuntary manslaughter conviction of Dr. Conrad Murray for causing the death of pop superstar Michael Jackson, noteworthy as the latest "Trial of the Century," may be more memorable in the long run as the trial that cut out the television middleman. Using the miracle of modern media, the Murray trial may become known as the world’s first truly online trial.

Online, unedited, and un-commented upon. On an iPhone near you.

Maybe it’s for the best.

How did the online feed differ from television? Continuity, context and commentary – that is, the lack of subjective commentary from those feeding the trial to the viewer.

First, continuity.  The sins of the main “gavel to gavel” networks in Jackson-Murray (In Session and HLN, both CNN affiliates) were not that they only showed snippets; it was that they left out snippets –- and at really critical times.

For example, on Thursday, Nov. 3, Los Angeles County Deputy District Attorney David Walgren stood and delivered his closing argument. For a case of this magnitude it was not particularly long –- 120 minutes max, starting at about 10:30 a.m. and ending just before 12:30 p.m. But the In Session television feed saw fit to take four commercial breaks, often while Walgren was in mid-sentence.

For those old enough to remember 1968, think NBC, New York Jets, Oakland Raiders, think cutaway to show the movie "Heidi."  

The second reason the online feed was preferable in Murray-Jackson was context. Every moment the camera was on, you got the feed. No editorial decisions, or split screens while a “boring” witness talked. The viewer decided what to watch and what to tune out. 

Just like football. (Imagine if ESPN decided that special teams play polled badly and therefore decided to cut to commercial whenever the punter took the field.) In fact, judges who oppose cameras in the courtroom often say it is not generally cameras they oppose, but the out-of-context feed managed by editors and producers that distorts the proceeding and potentially undercuts the credibility of the verdict.

I may be the only law nerd on the planet who watched the trial of Dr. Conrad Murray from all three vantage points. Opening arguments and early witnesses from inside the courtroom, most of the middle of the trial on DVR-recorded “gavel to gavel” television coverage, and finally, on my iPhone. I watched the closing arguments online and on television simultaneously, making frequent use of the remote.

Another major difference between the online and television feeds was the lack of commentary from the online feed. You got a picture and camera angle clearly chosen from among the three privately owned in-court house black camera boxes.  But no editorial gloss on what you were watching. 

For instance, just after In Session returned to viewers from one of its commercial breaks, the lower part of the screen, in black, yellow and red outlined lettering read: "Prosecution: 'Michael Jackson paid with his life.'"

The continuous online feed eliminated this issue.  When the ball is snapped, the camera rolls. When open court is in session, the viewer gets to watch. 

And if not in the Murray case, then perhaps in the next "Trial of the Century," that level of transparency could make all the difference to the public’s faith and trust in the legitimacy of a verdict.

-v-

Ben Holden, a lawyer and journalist, is director of the Reynolds National Center for Courts and Media at the National Judicial College on the campus of the University of Nevada, Reno.

by Zanny Marsh

The Reynolds National Center for Courts and Media will examine the influence of media on trial practice at its fall regional conference “Media in Modern Trial Practice,” Nov. 18 from 8 a.m. – noon at the Santa Clara University School of Law. Click here to register.

“It is undeniable that media–particularly social media–is influencing the justice system in ways unimagined even a decade ago and raises questions about the intersection of constitutional rights to a fair trial and guarantees of a free press,” said Ben Holden, Reynolds National Center for Courts and Media director.

The Center will launch the fourth issue of the Reynolds Courts & Media Law Journal with a panel discussion “Newsroom Searches and At-home (non-traditional) Journalists,” moderated by Jack Komar, former Santa Clara County Superior Court Presiding Judge.

Additional conference sessions include social media and litigation and emerging developments in e-Practice. The program also will feature a conversation among judges, journalists and lawyers to identify strategies they employ to serve various stakeholders.

Panelists representing the judiciary include Hon. Conrad L. Rushing, Presiding Justice, California District Court of Appeal and Hon. Janet Berry, Second Judicial District Court (Reno, Nev.).

Also participating are Santa Clara University professor Sunwolf, a former trial lawyer, professor of communication and Visiting Professor at the Santa Clara University School of Law; and Gerald F. Uelmen, professor of law and director of the Edwin A. Heafey Jr. Center for Trial and Appellate Advocacy, who was once a member of O.J. Simpson’s defense “dream team”.

The Donald W. Reynolds National Center for Courts and Media, a program of the Reynolds School that also is affiliated with the National Judicial College, promotes research and scholarship on the interaction between free speech rights under the First Amendment and and the fair trial rights of the Sixth Amendment.

by Zanny Marsh

Eric P. Robinson, Donald W. Reynolds National Center for Courts and Media deputy director, discusses a proliferation of social media trials and misconceptions about freedom of speech in recent interviews with media.

Robinson is considered a preeminent scholar in the areas of media and the courts and litigation involving social media.

“With the proliferation of social media users and channels, it is reasonable to expect increasing litigation based on postings,” Robinson said. “It’s important to realize that generally the same rules apply to both online and traditional media.”

Robinson was quoted in a story in The Oregonian on Oct. 10 about a lawsuit in which a doctor sued a blogger for an allegedly libelous Twitter post. He also was interviewed on Oregon Public Radio about the case.

Unless a settlement is reached, this may be the first instance in which a lawsuit stemming from content on Twitter goes to trial in the United States, Robinson said.   

Robinson also addressed First Amendment protections – or lack thereof – for professional athletes following a spate of media coverage of athletes’ use of offensive language – or potentially hate speech –in heated exchanges during games. His comments to The Legal Blitz blog are accessible here.

Finally, Robinson wrote an article for The Brechner Report, a publication of the University of Florida’s College of Journalism and Communications. His column, “Cameras roll in new federal court experiment” described a pilot program allowing cameras to record proceedings in selected federal courtrooms.

The Reynolds National Center for Courts and Media has carved its niche exploring the interaction of courts and media, including potential conflicts between rights under the First and Sixth Amendments. The Center also explores the question of whether it is possible for a defendant (high-profile or otherwise) to receive a fair trial in a culture bombarded with social media and the 24-hour news cycle.  

Robinson also teaches JOUR 401 (First Amendment and Society) for the Donald W. Reynolds School of Journalism and Center for Advanced Media Studies, and blogs for the Citizen Media Law Project at the Berkman Center for Internet and Society at Harvard University. His personal blog may be found here:

The new issue of the Journal, which coincides with the start of a new test of cameras in selected federal trial and appellate courtrooms, focuses on the issue of the cameras in the court: a question that persists even though almost all states now allow some sort of camera coverage of court proceedings.

The issue includes a history of the camera in the courtrooms issue by Mickey H. Osterreicher, general counsel of the National Press Photographers Association, with a focus on recent developments including the new federal cameras experiment. Tony Mauro, who has covered the U.S. Supreme Court for more than 30 years, writes about the long-running battle over cameras in the High Court. And attorney Paul Lambert proposes a way to use modern technology to finally answer one of the questions at the heart of the debate over cameras in the courts: are cameras really a distraction to trial participants?

In addition, Journal editor Eric P. Robinson, deputy director of the Center, has put together a compilation and analysis of the various federal and state jury instructions on juror exposure to information about cases, with an emphasis on how these instructions deal with and apply to activities such as texting, tweeting or posting Facebook updates about a case, and doing research online.

The theme of the summer 2011 issue of the Reynolds Courts & Media Law Journal is a continuation of the spring 2011 issue, which focused on the impact that social media are having on the courts.

The Donald W. Reynolds National Center for Courts and Media is a program of the Reynolds School of Journalism at the University of Nevada, Reno, in affiliation with The National Judicial College. The Center is generously funded by the Donald W. Reynolds Foundation.

C-SPAN filmed the event for later broadcast; the videos are available here.

Offered in conjunction with the annual conference of the Conference of Court Public Information Officers, the program explored the use of electronic devices in the courtroom, the request to monitor jurors’ private social media accounts and the resulting disclosure obligations, the court’s role to protect jurors from overly intrusive inquiries about jurors’ private lives and other thorny issues.  Participants will discussed the "Open Court" pilot project, in which a Massachusetts court streams all its proceedings online.

The centerpiece was a  "role reversal,” at which judges, court public information officers, journalists and lawyers switched roles to respond to a hypothetical scenario that addresses many of the issues that were discussed during the day.

Presenters included Hon. Royce Lamberth, Chief Judge, U.S. District Court for the District of Columbia; Angelita Plemmer, public information officer, Maryland Judiciary Office of Communication and Public Affairs; and media attorney Charles Tobin. 

Brian Lamb, C-SPAN founder, delivered the luncheon presentation (coverage here), and Floyd Abrams, renowned First Amendment attorney, concluded the conference.

The Donald W. Reynolds National Center for the Courts and Media, a program of the Reynolds School also affiliated with the National Judicial College, promotes research and scholarship on the interaction between the courts and the media, particularly the conflicts between free speech rights under the First Amendment and the fair trial rights of the Sixth Amendment.

The Donald W. Reynolds National Center for Courts and Media – in partnership with the Council for Court Excellence and the State Justice Institute - hosted “Social Networks, Computer Technology and the Courts,” June 15, in Washington, D.C. The program engaged judges, journalists, media lawyers and court technology experts in spirited debate about the influence on the courts of social media and increasing use of technology.

The program was moderated by Frank Sesno, director of the School of Media and Public Affairs at The George Washington University and former anchor and Washington bureau chief for CNN.  Sesno led panelists through a hypothetical scenario which led them to consider ethical dilemmas and procedural consequences of issues surrounding jurors’ and other trial participants’ use of social networking services and electronic devices.

The program began a dialogue it plans to continue when the Center hosts its regional conference, “Modern Media and the Courts,” on Aug. 10 at the Liaison Hotel in Washington D.C. Registration is $199 for lawyers and free to judges, journalists and court public information officers; information is available at 775-327-8270.

The panel at the June 15 event consisted of a number of prominent judges and court officials, journalists and attorneys, including Judge Herbert Dixon, Jr. of the D.C. Superior Court; Magistrate Judge John Facciola of the U.S. District Court for the District of Columbia; David Sellers of the Administrative Office of the U.S. Courts; journalists Mike Semel and Scott Higham of The Washington Post, Adam Liptak of The New York Times, and Pierre Thomas of ABC News; media law attorneys Charles Tobin of Holland & Knight and Ashley Messenger of National Public Radio; and criminal attorneys Avis Buchanan of the D.C. Public Defender Service and Ronald Machen, U.S. Attorney for the District of Columbia.

Both the June 15 panel and the Aug. 10 event examine use of electronic devices in courtrooms; legal issues involving monitoring jurors’ social media accounts; and the court’s role to protect jurors from overly intrusive inquiries in jurors’ private lives and other issues.

“Our August conference will examine one of the hottest and thorniest questions facing the bench today: the role of social media and the courts,” Ben Holden, director of the Center, said. “We’ve partnered with American University Washington College of Law, the National Judicial College and the Conference for Court Public Information Officers to deliver a program that asks challenging questions and seeks viable, real-world answers.”

The new issue, which is available online here,focuses on "Modern Media in the Court," particularly the effects of social media on court proceedings.

It features an article by Maryland judge Dennis M. Sweeney comparing his experience with high-profile cases before and after the emergence of social media. In another article, Gareth Lacey looks at jurors' use of social media, and critically explores the rationale for shielding jurors from outside information about a case. Professor Genelle I. Belmas, meanwhile, looks at judges' use of social media sites, and the implications for judicial ethics. And Stacy Blasiola looks at how courts in one state -- Wisconsin -- deal with requests from traditional and "new" media to cover court proceedings.

In just a few years, social media and the Internet have become a pervasive part of many individuals’ lives; a trend that is only likely to accelerate as we create new ways to access and use the vast trove of information available “in the cloud.” And courts, some of the most tradition-bound institutions in our society, are going to have to adapt to this new digital reality.

With this issue of the Reynolds Courts & Media Law Journal, we hope to spark discussion and thought about how this transformation is proceeding – and help craft the courts’ digital future.

Click here to subscribe.

By Bridget Meade, Reynolds School of Journalism

Might social media influence what takes place in the courtroom? Released in January, the first scholarly journal of the Reynolds National Center for Courts and Media takes an in-depth look at this and other questions regarding the courts and media.

“Our hope is that the journal, and the associated conferences that we're having … will spark discussion and raise the profiles of the issues we're dealing with, as well raise the profile of the center,” said Eric Robinson, journal editor and Reynolds Center for Courts and Media deputy director. The center held its first conference in Houston last week in connection with the first issue of the journal.

The first edition of the journal features a critique of an important contemporary court case—the trial of former Enron President Jeff Skilling. Even though social media was in its infancy, the case received heavy coverage in both mass and social media due to Enron’s collapse and the convictions of other Enron executives. Skilling was unsuccessful in his request for a venue change based on the heavy media coverage and after he was convicted, was sentenced to 24 years in prison. His appeal reached the Supreme Court where some of his convictions on some charges were overturned for reasons not having to do with coverage of the case, and sent back to a lower court for review.

Articles in the new journal examine how new social media—from bloggers and Facebook to Twitter—affect the courtroom, libel laws and the First Amendment.

“The biggest question that courtrooms face today is how to deal with new technology,” Robinson said. “Historically, courts have been slow to deal with changes. Some boneheaded decisions will be made in regards to allowing Tweeting and blogging in the courtroom. However, appeal courts will weigh in and it will work itself out.”

Robinson collaborated with Center Director Ben Holden and Assistant Professor Scranton, who teaches visual communication at the Reynolds School. Scranton created the layout and design of the journal, a time-consuming process that presented challenges for the former Newsweek art director.

“The biggest challenge was that this was a new journal and we had to invent the look and feel,” Scranton said. “There are many law journals printed today, mostly very conservative looking ... justified typography, no photography, centered alignment. We wanted a design that was a cross between existing law journals and what you might see in a magazine or newspaper today.”

The journal will be formally introduced to the public at an event in March.

The conference, titled “After Enron: Have Social Media Wrecked Traditional Venue Law?” was valuable and insightful according to feedback from attendees. The conference was recognized by the Texas Bar Association and granted 5.25 units of credit for any practicing Texas lawyer who attended.

The conference also marked the unveiling of the premiere issue of the Reynolds Courts and Media Law Journal (see separate article).

The audience at the conference was comprised of more than 60 courts-and-media stakeholders, including 10 past or current judges, more than a two dozen journalists from the Houston Chronicle, and several of the state’s top media lawyers. 

Our aim was to have panelists and presenters with a decidedly local flavor to encourage internal dialogue after the conference.

Participants included Chronicle Metro reporter Rick Casey, who has written many critical pieces about judges, and Seana Willing, executive director of the Texas State Commission on Judicial Conduct. Participating judges included Texas Supreme Court Justice Nathan Hecht and Judge Jane Bland of the First District Court of Appeal.

Award-winning Houston television personality Wayne Dolcefino and Harvard law school-trained reporter-turned-PR executive Mary Flood also attended. The event had a strong showing from students and faculty from South Texas and other local law schools.

Panelists and attendees spent the day discussing and debating some of the most cutting-edge issues of the day involving venue and media coverage of the courts. Among the topics discussed at the conference:

•    Have Social Media Wrecked Traditional Venue Law?
•    What are the standards for venue change in the age of Twitter?
•    Reasonable rules that protect the public’s right to know.
•    Judges: Understand how the press works.
•    Journalists: Learn how to better cover the courts.
•    Judges and Journalists: Can’t We All Just Get Along?

Lunch speaker Chip Babcock – counsel to television superstar Oprah Winfrey, Dr. Phil and the Tribune Company, among others – introduced the audience to cutting-edge research involving the impact of a juror’s chronological age on personal beliefs about piracy of online data such as music, videos or other copyrighted material. The research could have broad impact on jury selection in intellectual property cases.

The day ended with a "role reversal" exercise in which judges played the roles of reporters, and those associated with the media played roles in a hypothetical court case which raised a number of significant issues regarding media coverage of the courts.

The center, managed by the Reynolds School in collaboration with the National Judicial College, is the only organization devoted to resolving conflicts between the competing constitutional guarantees of free speech, open courts and fair trials.

“Eric’s essential experience in First Amendment law will be valuable to the center as we develop training curricula and education materials that judges and journalists will find useful as they fulfill the expectations of their respective roles,” said Ben Holden, director.

Robinson will oversee Reynolds Courts and Media Law Journal, a new scholarly journal that will explore emerging issues, such as the
impact of social media on courts.

“The issues involving the courts and the media have moved beyond issues such as ‘cameras in the courtroom,’ to include new
issues involving use of the Internet and other new communication technologies in our courts,” Robinson said.

Robinson previously was staff attorney at the Media Law Resource Center in New York, where he tracked and analyzed litigation and legal issues involving the media and the Internet. He also has published articles in The Encyclopedia of the First Amendment and the Journal of Internet Law, and is a regular blog contributor for the Berkman Center for Internet and Society at Harvard University.

Robinson has worked in federal, state and local government, and
previously worked as an editor and reporter for
community newspapers in the New York City area.

Most of the funding for the center comes from the Donald W. Reynolds Foundation of Las Vegas, the journalism school’s biggest benefactor. The Donald W. Reynolds Foundation is a national philanthropic organization founded in 1954 by the late media entrepreneur and is one of the largest private foundations in the United States.

"To date," Holden said, ''no clear voice has emerged on the American policy landscape to articulate the proper balance between our constitutional guarantees to open courts on the one hand and fair criminal trials on the other. This center can become that voice."

Technology has confused those First and Sixth amendment guarantees even more, said Jerry Ceppos, dean of the Reynolds School of Journalism. "It seems every week a judge has to decide whether a blogger should get press credentials or whether a mainstream journalist can Twitter from a courtroom, issues that didn't even exist five years ago," he said. "These issues are perfect for a journalism school that specializes in issues surrounding innovation."

Holden is a former reporter for The Wall Street Journal who wrote law-related articles ranging from a profile of the prosecutor in the 1996 murder trial of rapper Snoop Doggy Dogg to sentencing issues arising from the Rodney King beating case, to a co-bylined piece on jury nullification in the 1995 O.J. Simpson double-murder trial. The Journal nominated the O.J. nullification story for the Pulitzer Prize.

More recently, Holden, 46, has been executive editor of the Columbus (Ga.) Ledger-Enquirer, a post he has held for 5-1/2 years. Earlier, he was deputy managing editor of the (Palm Springs) Desert Sun and senior editor for business and sports at the Reno Gazette-Journal, both Gannett newspapers. Prior to Gannett, Ben was assistant to the president of the McClatchy Co., the Sacramento-based newspaper publisher. McClatchy owns the Columbus newspaper.

After graduating from Boalt Hall, the law school at the University of California, Berkeley, Holden practiced law with Cooper, White & Cooper, one of the Bay Area's top media-law firms, and with the firm formerly known as Weissburg and Aronson, in Los Angeles. He is licensed to practice in California and Georgia. Holden is a graduate of the University of Missouri's School of Journalism and also received a master's degree in business administration from UC Berkeley.

Holden is a long-time member of the National Association of Black Journalists; a 2001 graduate of  the Advanced Executive Program of the Media Management Center at Northwestern University, and serves on the advisory board of the University of Missouri's daily newspaper, The Columbia Missourian.  He also is a member of the Accrediting Council on Education in Journalism and Mass Communication.

Among his accomplishments in Columbus, Holden helped establish the Columbus Scholars Project, which has identified five deserving but disadvantaged fifth graders and matched them with long-term mentors and college funding to see them through college graduation in the spring of 2021. He plans to continue his involvement with the Columbus Scholars Project.

Holden officially joins the center May 3. Most of the funding for the center comes from the Donald W. Reynolds Foundation of Las Vegas, the journalism school's biggest benefactor. Holden succeeds Gary Hengstler, who resigned last year.

The Reynolds School is Nevada's only accredited journalism school.

Jerrianne Hayslett, who served as the court public information officers and media liaison at the 1995 murder trial of O.J. Simpson in Los Angeles, joined Mike Sommermeyer, the Clark County court public information officer who handled the media issues in Simpson's 2008 armed robbery and kidnapping trial in Las Vegas, to speak about their experiences with judges, the media and the public. 

This was the first time both trials have been featured in a comparison program.

Ms. Hayslett’s book, “Anatomy of a Trial: Public Loss, Lessons Learned from The People versus O.J.Simpson” has been published by the University of Missouri Press.