The court should delay the 'Perfect Husband' docu-drama to protect Scott Peterson's right to a fair trial

Guest commentary by Patrick Mattimore
Posted February 19, 2004

Scott Peterson

Scott Peterson’s trial has begun, complete with “Man or Monster” opinion billboards near the courthouse where he will be tried and a television documentary drama slated to be broadcast by the USA cable network throughout the trial.

Just as when USA repeatedly broadcast another docu-drama “D.C. Sniper: 23 Days of Fear,” during those trials last fall, the Peterson program “Perfect Husband,” will likely attract a wide audience. Laci Peterson’s family is concerned that the program, which they previewed, “…could influence a potential jurist.”

So am I. But the program will proceed on schedule because the First Amendment guarantees freedom of speech.

Patrick Mattimore

The U.S. Constitution’s Sixth Amendment, however, guarantees an accused the right to a “…public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Because of the extensive pretrial publicity surrounding this case, the defense’s motion to have the trial moved out of Modesto was granted. Now the question is whether Peterson can get a fair hearing anywhere in the state, or indeed, in the country.

The overarching question is whether the media should be restrained from presenting billboards and programs which can potentially bias the jurors in a case such as this one.

In the 1976 United States Supreme Court “Nebraska Press Assn." decision, the Court considered whether a lower court could issue a restraining order to prevent the press from publishing or broadcasting accounts, in advance, of confessions or admissions by an accused. The case squarely raised the issue of whether preserving a fair trial for an accused might be a sufficient basis for a prior restraint.

Balancing competing rights

The Court held that in balancing the rights of the accused against the prior restraint on publication that the heavy burden imposed as a condition to securing a prior restraint was not met, primarily because the trial judge had other alternatives to insure the defendant a fair trial. Among those alternatives was a change of trial location as happened in the Peterson trial, postponement to allow public attention to subside, intense screening of jurors to weed out those with fixed opinions, emphatic instructions to jurors to decide the issues based only on evidence presented in court, and sequestration -- cocooning jurors in a hotel away from media and other reports.

Unfortunately, only sequestration could prevent jurors in the Peterson case from being exposed to prejudicial outside sources today during the course of the trial. And that isolation would require a total media ban, including access to the Internet.

According to Chief Justice Warren Burger who wrote the Court’s opinion in the “Nebraska Press” case, the authors of the Constitution must have been aware of the potential conflicts between the right to an unbiased jury and the guarantee of freedom of the press. Quoting with approval an earlier case, Burger continued “…the trial courts must take strong measures to ensure that the balance is never weighed against the accused…” (from “Sheppard v. Maxwell, 384 U. S. 333 (1966)”). The prosecution, as well, has a right to an untainted jury.

'Perfect Husband' isn't news, but drama

"Perfect Husband" differs from these precedents, however. In those cases, the media have argued that they were merely presenting the news, albeit with many different slants.

No such claim can be advanced as to a dramatic television show designed to capture viewers' attention. Further, previous First Amendment privilege case decisions have depended in part upon the necessity that the news be reported in a timely manner, as the events are unfolding. The only justification for a timely presentation of “Perfect Husband,” is to bolster viewer ratings for the network.

Prior restraints are serious intrusions on First Amendment rights. However, the Court has held in a number of obscenity cases that those restraints may be justified. Media entertainment should be subject to the same types of restraints when an accused rights and public justice may otherwise be compromised.

"The extraordinary protections afforded by the First Amendment carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly -- a duty widely acknowledged but not always observed by editors and publishers," Justice Burger wrote in the Nebraska case. "It is not asking too much to suggest that those who exercise First Amendment rights in newspapers or broadcasting enterprises direct some effort to protect the rights of an accused to a fair trial by unbiased jurors.”

The public does have a right to know. They have a right to know that jurors in the Peterson case will not be biased during the courtroom presentation of evidence in that case. Those jurors have a right not to know how the USA Network has dramatically decided the case for them. As it now stands, those are rights neither the public nor the jurors will have.

Patrick Mattimore is a San Francisco attorney.

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