McGuire on Media

The Connecticut Post case by the Poynter numbers

I consider Al Tompkins one of journalism’s great natural resources. His broadcast work for Poynter has always been stellar and he’s a wonderful  character to boot. My old buddy Al made a curious choice this week when he wrote about the Connecticut Post’s decision to print the names of jurors in a major murder trial.

Tompkins chose to write a wonderfully reported piece about the case. It was full of history, perspective, explanation and expert opinion. The piece was as comprehensive a presentation of the case as you could possibly expect.  What Al did not do was render the expert Poynter opinion we all have come to value and find so reliable.

In my Media Ethics class here at ASU I stress to my students the importance of using an ethical process or model to find one’s way to responsible ethical decisions.  I am quick to tell my students I wish I would have used such processes a lot more often when I was under the gun as as a top editor.

Not surprisingly, the model I use most often with my students is Bob Steele”s Poynter Model which he calls “10 Questions to Make Good Ethical Decisions.” I thought it might be fun to piggyback on Al’s great reporting and use the 10 questions to determine a responsible and ethical course of action in determining whether to print the names of the jurors in the Connecticut Post case.  As I am sure Bob Steele would point out, the Questions model appreciates the subjectivity of the decision maker and in this exercise I guess that’s me. I will tell you that as I begin this exercise I am torn about whether I would publish the names. That is exactly why you conduct this sort of process.

1. What do I know? What do I need to know?

I know this has been a high profile case and the first jury deadlocked on whether the man convicted of killing an 8-year-old boy and his mother should get the death penalty.  I know it took four months to select the jury for the death penalty phase. I know my reporters watched and took careful notes on 42 days of voir dire in the case. I know my piece is not a reckless two paragraph publication of juror names, but a fairly comprehensive piece on how difficult it is to seat a jury in a death-penalty sentencing trial.

Tompkins’ report is so complete I don’t think I need to know anything else.

2.What is my journalistic purpose?

In Tompkins’ piece the reporter and the editor say the public should know who is deciding a case, especially a high profile case.  The editor, James H. Smith, says in nearly 40 years as a reporter and editor he has always named jurors. He asks, “How can you have a public trial with a secret jury? How do you know if the jury is impartial if you don’t know who they are?

3.What are my ethical concerns?

Kant’s contention that human beings have inherent dignity and must be treated with respect.

Kant’s categorical imperative that we should act on the belief that our actions will become universal law.

Mill’s principle of utility which says we should seek the greatest happiness (or good) for the greatest number of people.

Journalism’s first obligation is to the truth.

We should minimize harm.

We should consider the privacy issues of all the participants.

I must ask myself whether I have been transparent in my methods. Are the lawyers, judges and jurors going to be shocked if I print the names of the jurors?

4.What organizational policies and professional guidelines should I consider?

Smith’s contention that he always names jurors must be considered.

So too, should Smith’s statement that he chose not to print juror’s names earlier this year after a court battle indicated there were visible threats made against some jurors in that case.

Tomkins contends, and I agree, “journalists seldom publish or broadcast juror names especially before or during a trial.

Jury consultants  and a former judge Tompkins talked to, “say publishing juror names while the trial is under way almost certainly would be grounds for an appeal.”

Smith’s belief he is setting an important example for other journalists by charting new ground on the coverage of public trials  should not be dismissed. Certainly Geneva Overholser’s ground-breaking decision to name a rape victim was controversial and unusual 15 years ago, but her courage sparked an important public and industry debate  on that subject. Smith deserves the same space and consideration. 

5. How can I include other people, with different perspectives and diverse ideas, in the decision-making process.

Tompkins’ reportorial model would have probably worked well prior to the decision. Tompkins talked to jury consultants, a former judge and a law professor. I would have probably wanted to talk to some reader/citizens to gauge their reaction.  Former jury members would have been helpul.

6.Who are the stakeholders–those affected by my decision. What are their motivations? Which are legitimate?

The judge is clearly a stakeholder and so are the prosecution and defense attorneys.  I know either the prosecutor or the defense attorney, or perhaps both, are going to be madder than a Britney Spears fan at the recent press treatment of their heroine. And, I probably have a pretty good idea they are going to make a motion for mistrial or dismissal.  Then I can be quite certain the judge is going to have a really difficult decision on whether the case should go forward. 

I can reasonably tell myself that’s not my problem, it’s the judge’s problem and I need to concentrate on whether the publicness of the trial is a prize worth protecting.

The defendant is a stakeholder, and I have to ask if publishing the juror’s names compromise his rights in any way.  I don’t see it.

The public is an obvious stakeholder.  I believe they have a right to know the juror’s names, but I have to ask myself if the public needs to know, or if this is a want to know kind of situation.  

Obviously, the key stakeholders in my decision are the jurors. I need to explore whether they should reasonably be able to expect anonymity until at least after the trial. I must ask myself if I believe any harm might come to them.  That’s especially relevant since I know such harm was actually threatened in a previous case. I also must ask if the greater good of the public outweighs any potential harm to these stakeholders. 

7. What if the roles were reversed? How would I feel if I were in the shoes of one of the stakeholders?

At this point I can narrow this question to the juror stakeholders. When we ask this question it’s often best to eliminate ourselves.  We’re tough hard-nosed editors.  The answers to this question often look different if you substitute your married son or daughter who take care of your precious grandchildren. If they were jurors in this case would you be comfortable with their name, their age, the community they live in  and their workplace being published? If not, you should not publish.  If you are comfortable, you can move on to the rest of the questions.

There was an interesting point in the penultimate graph of Tompkins’ piece. Almost as an aside, he says the reporter said several callers wanted to know her home address and phone number. That is not insignificant.  If you are a reporter or an editor who keeps an unlisted phone number and jealously guards the secrecy of your residence, I argue you shouldn’t publish these jurors names.  I was always listed just so I could argue in favor of openness in this kind of case. 

8. What are the possible consequences of my actions? Short term? Long-term?

The judge rules there’s been a mistrial.  If he does, my newspaper is going to be held accountable.  The outcome of the case might be overturned on appeal. Again, my newspaper is going to be held accountable. Finally harm or harrassment might come to one or more jurors.  Supporters of the defendant could threaten harm.  Miscreants on either side of the issue might attempt to corrupt one or more jurors. The jurors might be subjected to long-term harassment in their workplace .  The jurors might blink in the jury room because they fear such accountability.

9. What are my alternatives to maximize my truthtelling responsibility and minimize harm?

I could do my takeout on the difficulty of  selecting a jury and decribe the jurors according to occupation and city without naming them.

I could guarantee the openness of trials by naming the jurors after the trial.

I could walk away from any reporting before the trial and put together a dramatic takeout after the trial detailing the entire jury selection process.

10. Can I clearly and fully justify my thinking and my decision? To my colleagues? To the stakeholders? To the public?

My entire justification rests on the fact that trials must be public and thus the names of the jurors must be public to show citizens that the trial is open, impartial and fair. My justification must ignore any potential damage to the judicial process  and potential harm to the jurors, some of whom are parents just like my daughter.  

If I publish the jurors names I am, in effect, telling my industry colleagues that their long-standing practice of protecting names of jurors is some sort of chicken-hearted action and naming jurors before trial should be the new “universal law.”  I am telling the judge and the attorneys the newspaper does not care if you think we endangered the fairness of the trial. Live with it. We’re telling the jurrors to suck it up and show some courage. Your fears about retaliation are not legitimate. And, we’re telling the public the most important consideration for us is to protect your right to know about public, open trials.  We’re doing this for you, no matter if you understand that, or appreciate it. 

I can’t go there. About question number 7 of the process, when I asked if I would want my daughter named as a juror, I started to see that the process was leading me to the conclusion that printing the juror’s names was a bad idea.  Then I found I really didn’t like the consequences of printing the jurors names.

Next, I found I was incredibly comfortable with the alternative of guaranteeing the openness of trials by naming the jury members after the trial.

The final nail for the idea of printing the names came when I looked at my explanation to the public.  I simply couldn’t make it resonate for me so I doubt it would resonate for any of my audiences.

I have tremendous respect for the courage of the reporter and James H. Smith. Using the Poynter ethics process simply takes me to a different conclusion.

Thanks Al, for providing the ammunition for us all to examine this case.