Fair Trial / Free Press … Which Comes First?

THE OPEN MIND
Host: Richard D. Heffner
Guest: Judge Sol Wachtler
Title: “Fair Trial/Free Press…Which Comes First?”
VTR: 6/8/91

I’m Richard Heffner, your host on THE OPEN MIND. And my guest today is one of our nation’s most outstanding jurists, the Honorable Sol Wachtler, Chief Judge of New York State’s highest judicial body, it’s widely respected Court of Appeals, which in his time has again assumed a most important leadership position among our 50 states’ top courts. And without at all violating his sense of propriety as Chief Judge, I want, among other justice related themes, once again, to probe Sol Wachtler’s thinking about the responsibilities of a free press in a society devoted to the ideal of a fair trial for all who stand accused.

So I suppose I ought first to ask the Chief Judge if he finds it at all self-contradictory, as some of my friends in the press do, to speak forcefully both about a free press and about a responsible press because the very notion of responsibility carries with it somewhat the overtones of enforcement. Judge Wachtler?

Wachtler: Well, it would be hoped, Dick, that the enforcement would come from the press itself. And that’s what we look to because if you’re going to regulate the press, or in any way “chill” the free press, as they say, then I think we’re in serious trouble.

Heffner: And how much trouble are we in if the hope does not become father, not to the wish, but to the reality.

Wachtler: Well, we’re in serious trouble, of course, if the press is an excessive press. And that’s one of the problems that we have today because there seems to be on the part of many members of the press and may press organs an insensitivity and a failure to recognize that as Adams…Madison, excuse me…Madison put it when they were talking about the First Amendment initially, that it depends upon the spirit of the people and the acceptance of the people…the First Amendment was not etched in stone by a bolt of lightning. So, if the press offends the sensitivity of the people and the public sufficiently enough, then people are going to want to repress the press. And they would be doing themselves a grievous disservice.

Heffner: Well, do you think we are at a point, as you have suggested before, that at the time of the creation of the first ten amendments, the Bill of Rights, there wasn’t the kind of excessive, perhaps, excessive is my word, not yours, devotion to the extreme concept of free speech, free press…no interference with it even in terms of the responsibilities that a free press should have.

Wachtler: No, that evolved as the law evolved. When the Founders first wrote the first Amendment, they talk in terms of Congress not being able to abridge the right of a free press. They were not trying to protect publishers and people who wrote newspapers, they were trying to protect the public’s right to have access to information. Now that has grown of course, reasons recently of thirty years ago, that has applied to the states and more and more we see the case law evolving creating greater immunities for the press. So that now it’s taken for granted that the First Amendment is there to protect the press and protect all forms of media. And the courts are extremely reluctant to do anything and the public is extremely reluctant to suggest anything which would in any way stifle the press. And I think that’s a good thing. But, again, the press has to be very, very careful that it regulates itself lest it offends public opinion and the spirit of the people, as Madison said, and bring that repression upon themselves. And that can happen.

Heffner: Well, now you speak from the position of Chief Judge of one of our state’s highest courts…one of our 50 states, its highest court. What responsibility does the judiciary have in this regard given what you suggest might be, might become an adverse development of ideas, if feelings on the part of the public toward the press, if it is not responsible?

Wachtler: Well, the courts, of course, should operate free from the passions of the moment and free from the passions of the, of the public or any kind of sentiment that the majority may muster. The court should be dispassionate in reading the law and applying the law as it is related to a particular case which comes before it. So we should be immune from that kind of public sentiment. Though what happens is if the press starts doing things which trod on other Amendments, or on other rights of people, then the courts might very well try to say, “Well, stand back”. For example, the Sixth Amendment right that a person has to a fair trial…there’s that tension. If the press in some way interferes with a person’s right to a fair trial, then the courts will say, “Wait a moment, you can’t do that. You can’t disclose that information. You can’t allow the public to see this. You can’t allow the public to be part and parcel of this particular process”. Now, that’s unfortunate, but sometimes necessary to protect the individual’s right again to a, a fair trial, which every much as important a right, embedded in the Bill of Rights, as the First Amendment right to a free press.

Heffner: If you are ever forced to make a choice, and I’m sure you don’t want ever to be forced to make a choice between the First and the Sixth…which do you consider…

Wachtler: On the contrary, we make that choice all the time.

Heffner: How?

Wachtler: Well, for example, undue publicity concerning a certain trial and now the lawyer representing the defendant says, “I can’t possibly select an unbiased jury in this particular county. I want a change of venue”. Now the right of a defendant to have a trial in this or her visonage as the law says, in his or her country, to be judged by his or her peers in that community, is a very sacred right. It comes back…all the way aback from colonial times when we didn’t want our colonists taken from the colonies to England to be tried. So we said a person should be tried in that person’s home community. The press almost is cavalier about saying “Well, no problem there…too much publicity, just change the venue. Try the person in another country. On the other end of the state, amongst people who have different set of, of mores, a different set of values, a different sense of justice. That doesn’t matter, so long as the press has a right to publish”. Well, the courts might not look at it quite that way. The United States Supreme Court didn’t say that in the Sam Shepherd trial, for example. They said, “No, too much publicity. You tainted the process”. And this often happens when…sometimes guilty people are given a great break by virtue of an over-aggressive press.

Heffner: Well, Judge Wachtler, you talk about what the press should do in terms of exercising responsibility. You hope that the press will be responsible. When it is not what’s the step that you, in your position, would want us to take?

Wachtler: Well, it’s not what we would, would do. It’s what is done. For example, legislative bodies sometimes react. They ameliorate shield laws which protects sources for the press. In New York State, for example, the Legislature has recently nullified permission for cameras and, and audio material…or audio devices to come into courts. Again, this is a limitation because the press was not responsible enough, so thought the State Legislature in New York State, at any rate, was not responsible enough to handle cameras in the courts in the way it should. The Legislature thought that perhaps those cameras should have been used in the courtroom to give the people, give the public an idea of what happens in a courtroom, to enhance the perception of the justice system instead of using it exclusively for the 30 second snippets. Now the press was warned about this, and they were told, you know, “Be careful, you’re coming in here, you have a Legislature which might not be totally hospitable to you. It is due to their sufferance that you’re allowed to come in. Be careful”. And, the press paid no attention. They went about their business as usual. Now, mind you, and you and I might differ on this…I feel very strongly about cameras being allowed in the courtroom. I don’t think they should be excluded from the process, because I prefer event he sound bits and the snippets to nothing at all. But on the other hand, the press again, I would hope, would have said, “No, let’s do it better. Let’s have gavel to gavel coverage. Let’s have longer pieces in our news”, do that, again, people can get the flavor and the feel of a justice process which works appropriately.

Heffner: Well, you’re right, you and I disagree on that. I don’t think that the trade-off is, is worth it. I don’t think the 30 second snippets are anything other than negative inputs into the whole business. But I went down and watched my younger son this past week, perform as an Assistant District Attorney, in a trial when finally he invited me down to see him at work. And I was fascinated by what I watched over two days in the court and I couldn’t help but think, as opposed as I have been to cameras in the courts, what a wonderful lesson that would be if the whole darn proceeding from the beginning of the trial…

Wachtler: I agree with you…

Heffner: …to the Judge’s charge…

Wachtler: …I agree with you completely. And if you look at the interest of the public in various television shows, everything from “LA Law” to Judge Wapner’s Court…all of these things show that people are interested in the judicial process. There’s a great deal of drama in the courtroom. You have a whole story unfolding, almost like a sporting event…you have the beginning, you have the, the characters playing themselves, you have the ultimate verdict of the jury. It’s a very interesting, a very good process and we should cherish it and we should want to show people how good we are. Instead, once we gave that license…it’s been going on now for 40 months…and still I think I count on one had, the amount of gavel to gavel cases which have been covered and then only the very most sensational kinds of cases.

Heffner: You don’t need all the fingers on one hand, either, to do that counting. But, look, I, I don’t want to focus on that…I, I want to go back to the fact that you play a very significant role this year, as we celebrate the 200th anniversary of the, the Bill of Rights. I don’t think we have done a sufficiently good or wise job in interpreting for the public what the rationale for those first ten amendments was. Is that your feeling, too?

Wachtler: Oh, absolutely. I don’t think many people really grasp the significance of the ten amendments and I think to do that you have to go back to their origins. When the constitution was first framed in Philadelphia, they didn’t think a Bill of Rights was necessary. They never mentioned a Bill of Rights. It was after the Constitutional Convention was concluded that suddenly some people started talking about a Bill of Rights; many spoke of a Bill of Rights only because they wanted to use that as a device for keeping the Constitution from being ratified. They say, “We can’t ratify a Constitution because there’s no Bill of Rights”. And then Alexander Hamilton said, “Why should we declare Rights? Why should we say that the government has not right to something, when we didn’t give the government the power to do that thing in the first place”. And Noah Webster said, “Well, you know, you’re going to say ‘Declare rights’, you’re going to say that a person has a right to hunt and fish on his own land? You’re going to say that a person has a right to eat when he’s hungry? A person has a right to sleep on his right side and not on his left side?” They were worried that some day, someone would come along, and indeed, a former Attorney General of the United States did come along and say this, that that list of rights was an exclusive list, and if a right wasn’t in that list, then that right didn’t exist. You don’t have a right of privacy on that list…therefore people are not entitled to a Constitutional protected right of privacy. To prevent that from coming into being, Madison drafted the Ninth Amendment which said that the mere fact that it’s not listed on there does not mean that the public does not retain those rights, which it always had. And that’s very important. But the Bill of Rights, really was structured to be sure that certain rights were perhaps elevated over others. And two-thirds of those rights relate to the protection of defendants in criminal trials…an interesting mix of rights, but two-thirds do relate to the rights of defendants in trials. And the reason for that was that the Founders recognized the quickest way to hound out an enemy, the quickest way to stifle dissent is to pin a charge on them and then prosecute them. So the ten amendments said, “Oh, no, you have a right to counsel. You have a right to speedy trial. You can’t be tried twice for the same crime. You have a right not to be forced into confession. You have a right to be presumed innocent”. All those things are in the Bill of Rights…very important. Now the First Amendment, and coming back to that for a moment, the First Amendment was not drafted really again to protect the press, as such, as a commercial entity or enterprise. The First Amendment was there to protect individuals so that their grievances could be known to the public. And not be stifled. The right to petition. The right to put out pamphlets. So again, it’s the decision of law which has given that First Amendment an enhanced meaning.

Heffner: You know, when Earl Warren was Chief Justice of the United States and the McCarthy spirit was still riding high in this country, you remember the time when the Bill of Rights was up in the form of a petition and circulated through certain states in the Midwest and you got very few people willing to sign as radical a document…first I think it was a combination of the Declaration of Independence and then the Bill of Rights. How fares that Bill of Rights today, in your estimation?

Wachtler: Well, I think it fares pretty well. Some rights fare better than others. One of the things that I fear most for the Bill of Rights is the fact that as we have a society which is crime-ridden, or we have people living behind triple-locked doors which is a caricature of a society which prides itself on civil liberties, we find people talking in terms of diminishing those rights. And of “Well, you know, the guy’s guilty, so why do we have to suppress the, the evidence which we took, even though that evidence might have been taken without a warrant”. Or, “The fellow confessed, he said that he committed the crime…oh, so he was kept in a place for 24 hours without food and water. Still he wouldn’t have confessed unless he was really guilty”. And “Why should we have to provide counsel for these lowlifes…”…

Heffner: Well, not that you’ve asked all those questions, what in the world is the answer?

Wachtler: Well, the answer is that we have to, you see. The answer is that, again, that the Founders and interestingly enough, many of the people who espouse the diminution of those rights, are the first ones to talk in terms of “original intent”. If you want to talk about original intent, the original intent of the founders was that a defendant, or a person tried for a crime, should be given the maximum protection, and should be given, and I think this is one of the most important things of all, should be given “due process of law”. That’s contained in the Fifth Amendment. Due process of law…that no one can be railroaded because his or her ideas are unpopular, because he or she spoke against authority or the government. That person should not be clapped in irons. They didn’t want that. And that, again, becomes the fundamental premise of the Bill of Rights.

Heffner: Can I ask you to put on your thinking cap and look into a crystal ball backwards and wonder what would have happened if the founders had been as beset in their society by the kinds of crime that we are beset with today? Do you think their…they would have been as tender in their mercies, as concerned with those rights then, as we are today?

Wachtler: I think that they would be and I think that they would be clever and smart enough to say that despite the fact that these protections are imposed, nevertheless, by and large, the guilty are punished. We have in this country 1 million people behind bars. More than any other civilized country in the world. More than any other nation, per capita, in the world.

Heffner: But you’re not applauding that, are you?

Wachtler: No, I’m not applauding that, but the fact is that when people say that the guilty are not punished and the judges are soft-hearted and soft-headed and we have to do away with this and do away with that, so we can get more of these people behind bars, we had a lot of people behind bars. That’s, that’s not necessarily the solution. I do believe that the court should be allowed to function better than they do. I wish we didn’t have as much plea-bargaining as we do. That’s become an accepted way of life because the courts are being underfunded and we have too few judges and too few courtrooms and too few probation officers, and too few Legal Aid attorneys and too few District Attorneys to prosecute these crimes, to defend these defendants, and to make the system work. And that’s unfortunate.

Heffner: You say “it’s unfortunate”. It’s more than that, isn’t it? And you’re not talking about the state where you preside over the judiciary yourself…

Wachtler: No. It’s true, it’s true of New York, it’s true of California, it’s true of Massachusetts, it’s true of Texas, it’s true of all, of all the major states in the nation. When we have the Conference of Chief Justices, we all bemoan the fact that the courts seem to be the, the step-child, the starved child of the government units. We are supposed to be a third and equal branch of government. But when it comes time for our budge dollars, we find that some branches are more equal than others.

Heffner: Now don’t say that schools say the same thing, or will your response be that education is not a third branch of government.

Wachtler: It’s not a third branch of government. And I do believe that schools should be properly funded, and I would be the first to say that. What I am saying is that if you look at the school aid formulas, you’ll see a constant increase, and I know the demands are constant as well. But the schools can and are able to affect certain economies. Most of the courts have gone beyond the point where they can do that. They cannot turn cases away, they cannot say “stop making arrests”, they cannot say, “We’re not going to give rights to certain citizens because we’re too overburdened. They must do these things. This is…some of them are just compelled by law. And by Constitution.

Heffner: May I take some exception in your willingness to say, “The schools can still economize”? The implication is they can economize without being hurt so badly. I’m sure…

Wachtler: I…don’t…

Heffner: Okay.

Wachtler: …I don’t mean to say that take the money away form the schools and give them to the courts.

Heffner: What do you mean to say, then?

Wachtler: What I meant to say is that the courts, you know, if you want to talk about First Amendment, Fifth Amendment, Sixth Amendment, Constitution, Bill of rights…when Madison was reluctant to have a Bill of Rights, he was convinced to go that route by Thomas Jefferson, who wasn’t even in the country. They did this by an exchange of letters…and one of the things which Thomas Jefferson said which tipped Madison over was to say “We could have a Bill of Rights which would be enforced by the courts”. Now that has always stuck me as very interesting, that these revolutionaries, these idealists selected the most conservative of institutions, the courts, to enforce and bring harmony and bring order to civilization and to society. So, in my mind, and this might be a kind of myopia, but in my mind the courts are the backbone, the foundation, of our nation and of our democracy and of our republic and once we sit back and see the courts underfunded to the extent where they can be unable to function and unable to provide due process of law, then I think that we are terribly derelict and I think that, as you say, it’s more than unfortunate, it is a tragedy.

Heffner: Well, I certainly had that feeling when I went down to the courts this week, of tragedy, as I watched what was happening to the court buildings, and I saw the crowded conditions, and I know the efforts you have been making to remedy that situation…but, that’s true, and I don’t mean to say, Judge Wachtler, “Oh, come on, let’s not worry about that because it’s true everywhere”. What I mean to say is mustn’t we worry about it all…what kinds of people are we that we’re not willing, ready and able to fund the judiciary, the police, education, every aspect of that which is required for a good society? And my understanding is those Founders were thinking about a good society.

Wachtler: Absolutely. Now you see, the responsibility for all of the agencies of government within the executive and legislative branches are the responsibility of those two branches of government. They propound their own budgets, they negotiate on the budgets…the only branch which is excluded from that process is the judicial branch, which does propose its own budget…what we’ve seen in almost every state in this nation…with very few exceptions, is that the legislature, the executive branch…somehow find funds to adequately provide resources for most of the components of those branches but somehow or other every year the judicial branch is given less and less and less, because the judicial branch does not have the constituency that the schools have, that the hospitals have, that all of the other agencies have, and I’m not saying that they’re getting enough money…all I’m saying is that they do have a constituency out there, and they are able to agitate in a more effective way for funding. The courts have been bereft of that kind of representation.

Heffner: Well, the court’s constituency then consists largely of the million people behind bars and I don’t think they’re going to be voting funds for the courts. I don’t mean to be flippant about this.

Wachtler: No, I…know…

Heffner: …what, then, are the courts going to do?

Wachtler: The court’s constituency really, and we look to, the, the organized bar…the lawyers and, and the judges and the non-judicial personnel. But given the population…various voting areas, this is a very small constituency indeed. And the public at large, I don’t think, recognizes the importance of maintaining an adequately funded judiciary. If you put it in these terms, Dick, if you say that in the criminal court, for example, of the City of New York, and again this is true of municipalities throughout the country, I happen to be more familiar with New York, but I say it’s, it’s a prototype…in the Criminal Court of the city of New York we have 1,000 cases a day coming in with only 72 judges. We don’t get to try cases; we try maybe one out of every thousand cases. All the others have to be plea-bargained. Now you say to the public 98% of the cases are subject to plea-negotiations, where people are arrested for a certain crime, but they’re not tried for that crime, and they’re not punished for that crime, and they’ll say “Something’s wrong with the system”. And they’re right. The thing that’s wrong with the system is we can’t even threaten to try them because these defendants know that if they insist on pleading innocent, that we can’t try them. If they say, “I want a trial”, if everyone says that “I want a trial”, that would mean something like a million and a quarter trials a year, and we don’t have the judges, we don’t have the courtrooms, we don’t have the ability to do that. And that’s wrong.

Heffner: The defendant’s attorneys must recognize that.

Wachtler: They do. And they use that as a device to negotiate pleas which are favorable to defendants and not favorable to the people.

Heffner: Well…again, I have to say that I’ve never felt so proud or our system as watching the courts in action, and I find it almost incomprehensible that we have put the judiciary in this spot, put the court system in this…

Wachtler: Wouldn’t it be wonderful, wouldn’t it be wonderful if we knew that everyone who was arrested for a crime would be tried for that crime, and punished for that crime. That would be the best deterrent that the courts could provide. The word would then go out on the street, that you’re not going to be able to go there and cop a plea for almost nothing no matter what you do. But we can’t send that message out. Just the opposite message goes out because the wonderful trial you witnessed can’t be replicated because we don’t have the funding to do so.

Heffner: Well, our time is up, Judge Wachtler, but I must say, as you take responsibility for helping the organization of Chief Judges of this country celebrate the Bill of Rights, the anniversary of the Bill of Rights, it seems to me quite clear that unless we do nourish, embrace our court system, forget about it all.

Wachtler: I agree.

Heffner: Thank you for joining me today, Sol Wachtler.

Wachtler: Pleasure.

Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Edythe and Dean Dowling Foundation; The New York Times Company Foundation; The Richard Lounsbery Foundation; and, from the corporate community, Mutual of America.