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Helping Judges and Jurors Avoid Mistrials

By Ben L. Kaufman · July 20th, 2011 · On Second Thought

Roger Clemens’ mistrial last week recalled a similarly weird situation caused by my Enquirer story landing atop Page 1 of fellow Gannett paper, USA Today. It, too, presented jurors with evidence the judge had barred from court.

And as in the Clemens trial, the question was whether that created a potential mistrial.

In Washington, the former pitcher was charged with perjury after he told Congress that he never took performance-enhancing drugs. Prosecutors showed banned evidence to jurors and the judge declared a mistrial.

The case in front of Cincinnati’s U.S. District Judge Carl Rubin alleged the effective anti-nausea drug Bendectine — developed and made by Merrell Dow in suburban Reading — caused the families’ children’s birth defects.

Judge Rubin told lawyers they were not to refer to Thalidomide or even speak its name. Thalidomide was an anti-nausea drug made in Europe that caused unique, horrific birth defects. No one claimed Bendectine caused such unusual birth defects. Rather, the families said their children’s more typical birth defects were caused by Bendectine when patients took it during pregnancy.

Unlike the federal prosecutors whose repeated misconduct led to Clemens’ mistrial, lawyers in Judge Rubin’s court obeyed the letter and spirit of his ban on Thalidomide.

I proved to be the problem. Although not bound by any court order, I followed the judge’s request. My stories did not mention Thalidomide nor did they report the judge’s evidentiary ruling against any mention of the infamous drug.

But if a USA Today editor wanted to grab attention to my birth defects story, “Thalidomide” screamed from the headline.

As I walked across Fountain Square, the banner Page 1 headline displayed in every USA Today box linked the Cincinnati trial to Thalidomide. By name. Big, black type. You could read it at 50 feet. I checked newspaper boxes at the Walnut and Main Street entrances to the U.S. courthouse along Fifth Street. The same headline was on display. Jurors had to pass them.

I bought a copy and asked to see the judge in his chambers. I probably showed his staff the headline and said, “We have a problem . . . “ Now, a word about Judge Rubin. I may have said this before, but he and others showed limitless kindnesses to me as a sometimes-confused reporter unschooled in law. I’m not a lawyer. But I was mindful of his rules and his belief that a tightly controlled trial was fairest to all, including jurors.

Rubin kept my copy of USA Today and asked assembled lawyers to leave the courtroom and join him in his chambers. He explained what I’d told him, generously noting that my story did not use the word Thalidomide and that I’d brought the headline to his attention. I think he didn’t see the newspaper boxes because judges parked in a federal underground garage.

Judges routinely admonish jurors to shun news reports of their trials and against speaking with anyone about the case until the trial ends. The fear is that something read, heard or said which isn’t evidence could prejudice the verdict.

Judges and trial lawyers aren’t so credulous that they believe every juror follows this instruction; most say they believe jurors do try to avoid screwing up. At least one judge I’ve covered told jurors that court staff will present each of them with a scrapbook of trial clippings after their verdict is in.

In the Bendectine case, the judge or one of the lawyers suggested asking jurors — in open court when trial resumed — whether they had read the USA Today headline. Mistrial couldn’t have been far from their minds. Lawyers and judge returned to the courtroom. Jurors took their places. It was a curious interrogation by Judge Rubin. Not even he could say Thalidomide.

I sat behind the lawyers, facing the judge and jury. Attorneys and paralegals vibrated anxiety. There was no missing the body language. Jurors seemed relaxed but attentive to the judge’s circumlocutions.

No one wanted a mistrial. Millions of dollars had been invested by each side to prepare. By the time the Bendectine trial was over, I recall, there had been at least 79 hours of testimony, some more expert than others. I forget how many weeks the trial lasted.

This interrogation was one of the tensest moments in almost 20 years of covering federal civil trials. After individual jurors said they hadn’t seen a USA Today headline, everyone at the lawyers’ tables relaxed. Actually, slumped. Frozen grimaces turned to smiles. Trial resumed. None the wiser, jurors listened as lawyers battled, the judge controlled and witnesses testified.

When the judge ordered the lunch break, I looked at the USA Today boxes around the courthouse and Fountain Square. Empty. I have no idea whether deputy U.S. marshals bought every USA Today in the downtown area. Maybe it sold out. A good headline will do that for street sales.

Merrell Dow won the case. Jurors said family attorneys failed to convince jurors that Bendectine caused anyone’s birth defects.

There was a postscript to the Bendectine case. Lead opposing attorneys included Cincinnatians Stan Chesley and Frank Woodside. They even battled over whether Woodside, a physician as well as a lawyer, could be called “doctor” in court, lest it bias the jury in his favor.

Years later, Rubin came out of his chambers, bound up the steps to the bench, and stopped, as if in midair. Side by side at the plaintiffs’ table in this new case were co-counsel Stan Chesley and Frank Woodside. “Gentlemen,” the audibly and visibly surprised judge began . . .

Curmudgeon notes:

• Does Fox 19’s new promotion of “balanced” reporting reflect renewed anxiety over corporate ethics because of British colleagues scandalously hacking telephone messages in Britain? Fox19’s decision is timely but I’m not sure whether I’d have chosen a slogan that suggests an earlier failure to promote what always should have been at the core of its local reporting. I guess Fox 19 is taking the “before I was a virgin approach” to virtue.

• While we’re on journalism ethics, Fox 19 isn’t content to leave convictions to the courts. It described the Indiana arrested of local Republican legislator “for drunk driving.” Nope. He was arrested and charged with drunk driving.

The difference is presumption of innocence and convicting him.

Reporters hate weasel words like “alleged” or “allegedly” but those words avoid treating an unproven allegation as fact. It can go too far: an Enquirer colleague once referred to the “alleged bullet wound” in the homicide victim’s chest. Cause of death was unresolved but “alleged” could have been omitted for the bullet hole. That’s why we don’t (or shouldn’t) write that a suspect was arrested “for the murder” of whomever the victim was. That’s the reporter saying the suspect is the killer and it’s murder, not any other variety of homicide (self-defense, manslaughter, etc.) Those decisions belong in court. Why not say, “arrested and charged with” whatever crime is involved?

• I’ve written about my guilty enjoyment of London’s News of the World (NoTW), long Britain’s best-selling Sunday scandal sheet. No more. Owner Rupert Murdoch closed the paper earlier this month as part of his failed damage control in the spreading scandal of his reporters’ illegal eavesdropping on telephone voicemails of the famous and not-so-famous.

No one happily gives up a Sunday market that it once owned. Maybe Murdoch will add a Sunday edition of his daily Sun tabloid (famous for topless “Page 3 girls”). It could recoup some lost ad revenue but won’t replace the zest of The SunNoTW.

• Murdoch rose from Wild Colonial boy in Austrailia to multinational media polluter: America’s cable and broadcast Fox News (Glenn, Rush, Sean, Tea Party, etc.) and reality shows, London daily Sun and NoTW. Finally, his best people took his blend of Aussie/Brit tabloid journalism too far. For the moment, it’s cost him his best U.K. and U.S. executives, an insider in the prime minister’s office, his profitable down-market Sunday NoTW and a bid to control Britain’s BSkyB satellite network.

• Now that Murdoch’s no longer feared or respected, the British political establishment is turning on him. Lunching with Top People didn’t make him one of them. It’s a lesson that Brits teach better than anyone to outsiders who are too clever by half.

• The phone hacking scandal is expanding so fast that anything I write about events will be old by the time you read this. I have no idea where this will end up. Will the embarrassed Bancroft family buy back The Wall Street Journal? Will someone remember the unfulfilled ethical commitments Murdoch made when he bought The WSJ? Will some U.S. senator initiate a probe of Murdoch journalism in this nation? Will some U.S. attorney prosecute top Murdoch officials for bribing London cops? (It’s a U.S. company and foreign bribes are illegal; ask Chiquita.) Will Murdoch or his son, James, head of his operations in Britain and Europe, be arrested?

• Voicemail hacking in Britain involves one or more newspapers. Britain is small enough that London papers are sold and read almost everywhere. In that, they are true national newspapers and their highly partisan reporting fulfills the function of American TV, its toxic and costly campaign commercials and our corrupting need for nonstop fundraising to feed the beast.

“Serious” British papers include the daily and Sunday Independent, the daily and Sunday Times, the daily and Sunday Telegraph and the daily Guardian, which I first read as a child in tissue-thin postwar airmail weekly editions, with its stablemate, the Sunday Observer.

“Red tops” — the celebrity-obsessed, invasive and scandal hungry national papers — still are dominated by the the daily Sun and daily and Sunday Mail with its popular and superb website. For now, the Daily and Sunday Times, and the daily Sun remain Murdoch papers.

• After Labour and Conservative governments and London’s Metropolitan police (also known as The Met or Scotland Yard) stilled their curiosity about phone hacking by Murdoch minions a few years back, The Guardian persisted. Nothing added up for its reporters who are as good as any and better than most in London. In our country, The Guardian would be a shoo-in for the Pulitzer Prize's public service award.

• Early in the scandal, Ford Motor Co. pulled its NoTW ads. The Enquirer said P&G was considering doing the same. What caught my eye, however, was the absence of any comment/explanation from P&G headquarters in The Enquirer’s news service story. My guess? Depleted news gathering staff had no reporter free to call.

I haven’t seen what P&G plans to do in other Murdoch U.K. papers or his Fox networks here. Maybe nothing. After all, why would a leading multinational piss off the guy who controls The Wall Street Journal in this country and owns papers and TV worldwide?

• I’ll bet that no one at the NoTW expected revulsion over revelations about hacking voicemails. In recent years, a couple of NoTW journalists and private eyes have gone to jail for this kind of eavesdropping. So they invaded telephone messages of minor royals, actors and celebrities, big deal. Popular consensus accepted this along with pervasive stories about personal lives (think sexual trysts) if subjects were in film, on TV, or other roles that gave U.K. reporters the freedom to ignore any decency or privacy. Libel and invasion of privacy payouts didn’t seem to deter anyone. Getting caught was the greater scandal.

• Shit finally hit the fan when NoTW invaded voicemails of a kidnapped 13-year-old girl. When the box was full, NoTW hackers deleted some of her phone messages that might have aided the police search for her. This activity also fooled her family into hoping she still was alive. She wasn’t. NoTW indicated that its people deleted the messages to make room for more in search of a better exclusive. Now, U.K. authorities suspect NoTW listened to voicemails of victims and survivors of the subway/bus bombings by Muslim extremists. That tossed more excrement into the fan blades.

• Britain’s political class is asking again how best to regulate the invasive press. It’s the biggest spasm of its kind since the Princess Di era. Britain has no First Amendment that protects the news media, so the largely nonpartisan U.K. debate is over the degree of state control, whether through the impotent and self-governing press complaint commission or some other organization. It’s not going to be pretty. Of course, Labour — having lost Murdoch’s support and a majority in Parliament — is challenging what it says is overly concentrated media ownership. But it was not Labour’s focus when Murdoch backed New Labour and Tony Blair’s earlier victory over the Tories.

• Missing is an adversarial relationship between government and the British news media like that which limits misbehavior by our governments at every level. Sure, we love a quickie revel in sexual scandal implicating some elected official or legislator, but our news media rarely are in bed with the same men and women about whom they write. In Britain, they are. Guardian-style investigative reporting — as opposed to kiss-and-tell scandals fueled with purchased interviews — is rare in Britain. Here, classic investigative reporting still wins awards and audiences.

• The lack of media-government adversarial relationships is never clearer than in the efforts of British politicians and police to avoid antagonizing powerful newspapers. Political reporters are too dependent on exclusives given to them based on partisan positions embraced by their papers. Here, prizes go to journalists who bring down the biggest targets.

• Remember, it was Heather Brooke, a young American journalist, who pried loose the embarrassing expenses claimed by ministers of Parliament. Brits wouldn’t use their Freedom of Information Act because both parties would be pissed at reporters who embarrassed them. The American’s efforts prompted a mole to release the scandalous expense claims. Some, such as moat cleaning or housing allowance for non-existent housing, might have boosted the Tories’ successful bid for election. Brooke didn’t get the story, only the credit for creating it. The mole gave the information to The Telegraph, also known as the Torygraph, and it dribbled the embarrassments out in the run up to the election in which Labour lost its majority to the Conservatives.

The drumbeat of Republican propaganda on Fox News in our country and its active support of the rising Tea Party has affected politics here. Murdoch’s British papers haven’t changed politics there in the same way. Brits are accustomed to manipulative press lords. They buy papers knowing their partisan slant. Rather, Murdoch’s people picked the obvious winners in the elections that brought Tony Blair’s “New Labour” and more recently, Prime Minister David Cameron’s Conservatives to power. His papers’ support was valued but Murdoch’s people were schmoozed mainly to keep them from saying nasty things.

• Cincinnatians would be appalled if our cops and reporters sank to the level of how Murdoch’s journalists play with London’s Metropolitan Police. That hopelessly compromised force has gone to great lengths to retain its media relationships and avoid being the subject of personal scandal reporting that Murdoch’s London tabloids love.

In the current mess, an assistant superintendent (assistant chief) admits he screwed up the original phonemail hacking probe years ago when it involved professional athletes, actors and politicians. One of his fellow investigators apparently pulled punches to avoid stories about his sexual antics. Everyone from the Met assured Parliament that they were really pushing their probe. If they knew that was untrue, it was perjury. Lying to Parliament has destroyed more than one career.

Venal as MPs can be, the House of Commons doesn’t like being made a fool of. Now, the news is that Scotland Yard hired one of Murdoch’s top NoTW journalists — implicated in the hacking — at more than $1,000 per day as a “consultant” and the Met’s top man, Sir Paul Stephenson, took a freebie vacation as guest of a Murdoch associate. Sir Paul resigned over the weekend.

• Senior Met officers talk about envelopes of cash exchanged for information that only serving officers would have access to on people whom Murdoch’s journalists hoped to dish the dirt. Even the unit assigned to protect the royal family was approached or paid for insider information. Former coppers sometimes reportedly were used as go-betweens. Now, Rebekah Brook, who resigned as head of Murdoch’s U.K. papers and was editor of NoTW during much of its phone hacking, is under arrest. That doesn’t leave anyone to take a fall between authorities and the Murdochs, father and son. Brook reportedly is implicated in bribing police for information on people NoTW wanted to write about.

• In addition to being timid, senior Met officers were lazy. They didn’t read thousands of emails that indicate the scope of the hacking and possible police complicity. Yet senior officers initially assured everyone they’d done a thorough investigation.

• Our FBI (read: Justice Department) is looking into whether Murdoch’s journalists paid (read: bribed) officers of Scotland Yard for information. If they did, that’s illegal here because Murdoch’s company is an American firm and our law prohibits bribing foreigners in their own countries (read: Chiquita). That the FBI might actually trust people at and information from the Met is stunning.

• Some NoTW’s 200 just-fired journalists will be rehired by other Murdoch papers. Few if any had a hand in the hacking. Some weren’t at NoTW when it was done. Their lesson: Loyalty is a one-way street when sacrifice is required.

Reminds me of the Chicago reporter who reportedly said that “anyone who wouldn’t fuck a secretary for a story wasn’t loyal to his paper.” Meanwhile, Rebekah Brook, the head of Murdoch’s British newspaper organization, has been tossed under the double-decker red bus with a $5 million protective cloak. It didn’t help. She’s been arrested in the hacking/police bribery probe. Murdoch’s longest-serving employee and fellow Aussie, most recently a top U.S. executive in his firm and Wall Street Journal publisher, also resigned.

Both execs were at the top of Mudoch’s U.K. group or the NoTW when much of the most egregious hacking was used to pursue stories. Whether they knew what was going on or were willfully blind — how do you budget hundreds of thousands of dollars for private detectives and not know why? — their resignations don’t leave them in the clear.

The lesson here isn’t only that there is a limit beyond which even London tabloids may not go; it is that top corporate people take care of each other and screw everyone else.

The Enquirer’s Mike Gallagher eavesdropped on Chiquita voicemails when he and a colleague dug into the company’s practices in Central and South America in 1998. That cost Gallagher his job and earned him federal felony convictions. The paper paid a reported $14 million to avoid a civil lawsuit filed by Chiquita. Despite the validity of much of what the project reported, The Enquirer renounced the stories and apologized three times in a week on Page 1.

• Years later, Wikipedia was running an entry that libeled Gallagher’s colleague in the Chiquita project. It said the other reporter also was charged with federal crimes. He wasn’t. More than a half-year after I called this to Wikipedia’s attention, they took down the libel.



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