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Guest commentary

A great week for sensation, but not for fair trials

Patrick Mattimore

The media hit a trifecta the week before last. Three gruesome murder stories dominated the headlines. They made for sensational reading, but perhaps not for fair trials.

In rapid succession, we learned of: (a) A celebrity wife slaying and high school student, Scott Dyleski, turned Goth druggie suspect; (b) Scott McAlpin, jilted boyfriend and frequent domestic violence probationer, found with the body of his former girlfriend in the trunk of his car and;(c) Lashaun Harris, the Oakland mom accused of throwing her kids to their deaths into San Francisco Bay.

Any one of the homicides would have been sufficient to throw local journalists into paroxysms of ecstasy for weeks. For the national media, the stock of juicy killings may keep the Bay Area in focus for several more days.

Trouble is that the media seem to be unaware of the Sixth Amendment, which guarantees an accused the right to a "public trial, by an impartial jury" rather than a trial by media in public.

Chief Justice Warren Burger wrote the Supreme Court opinion in a 1976 case which struck a balance between the rights of the accused to a fair trial and the First Amendment rights of the news media.

Mr. Burger wrote that our nation's founders "recognized that there were risks to an individual's rights from an unfettered press." Citing an earlier case he wrote: "The trial courts must take strong measures to ensure that the balance is never weighed against the accused."

Today the media charges in before the balancing scales are even brought out.

Although newspapers generally withhold the names of juvenile suspects, the San Francisco Chronicle printed both Dyleski's name and several pictures of the boy, justifying that decision by claiming that the newspaper expected Dyleski to be charged as an adult.

The public has a right to expect that courts will operate in an impartial atmosphere relatively free from citizens' passions fired by a sensation-hungry media.

What's more, Dyleski's most recent picture from high school, placed alongside a photo from middle school, clearly conveyed the impression of a lost adolescent. Whether intended or careless, it spoke a thousand condemnatory words in silence.

In recent years, pretrial attention for high-profile cases has mushroomed.

The problem is that all the media attention virtually ensures that at least some of the eventual jurors will not be impartial, despite the trial judge's repeated admonitions to ignore information outside the courtroom. As the famous dictum goes, you cannot un-ring a bell.

Inevitably and unfairly, a great deal of the information jurors learn about outside the courtroom will be false, or at the very least, it will be evidence that the judge deems inadmissible at trial.

Professor Elizabeth Loftus of the University of California, Irvine, has studied memory for 30 years. Her research on false memories and how suggestive influences can be implanted, have led her to conclude that "misinformation can change an individual's recollection in predictable, and sometimes very powerful, ways," as she told the American Psychological Association at its 2003 convention.

Prof. Loftus' ability to successfully implant false memories in research subjects suggests that our malleable memories may be incapable of distinguishing courtroom evidence from media reports. In Dr. Loftus' work, significant minorities of participants have been led to believe that they were hospitalized overnight, had an accident at a family wedding, or that they had nearly drowned and been rescued by a lifeguard.

We are all subject to an inability to remember where information comes from. Unable to remember the source of information, we make assumptions that comport with our general behaviors. So, for example, if we can't remember specifically whether we first learned about the Harris child murders from a friend, over the Internet, on our radio, via television, or in the newspapers, we will likely make assumptions based upon how we usually get our news. For criminal defendants, those kinds of assumptions can literally result in death sentences.

It is unwise to gag media when it comes to police reporting. I am certainly not advocating that we return to the days of the secret trial Star Chamber. However, we need to strike a balance so that our system doesn't dissolve into a media-propelled public witch hunt either. The public has a right to expect that courts will operate in an impartial atmosphere relatively free from citizens' passions fired by a sensation-hungry media.

Patrick Mattimore is a San Francisco attorney.

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