In recent years, courts throughout the State of Maryland and the Nation have been faced with an ever-rising tide of litigation. Many of the issues raised by a good portion of this litigation go to the very heart of our political, economic, social, and cultural order. They bring to the courts disputes which often involve more than mere legal disputes. Many of these cases involve an inability to resolve by consensus or by resort to the more political and democratic legislative or executive branches of government, disputes that are essentially political or economic in nature.
Thus, questions involving civil rights, employment rights, the allocation of the risks and costs of injuries caused by major commercial and industrial enterprises; the breakdown of social and family values; threats to the environment and to the health and well-being of the public at large; the cost of energy, its conservation and development; and similar issues are raised before the courts. We are witnessing great conflict and accompanying stress in our society between groups who take moral and religious positions on matters involving abortion, “right to life,” the “right to die,” the death penalty, pornography, sexual conduct, and crime. I need not list all of the topics to make the point that many of these and other issues are being fought out in the courts – or around decisions made by courts.
In the areas of domestic violence and crime, judges, pressed by growing numbers of disputes of increasing complexity, are expected to do what no one else can do. They are expected to predict the unpredictable: the vagaries of human behavior. They are expected to exercise wise judgment in the areas where demagogues and talk shows provide simplistic and shallow answers. After rendering those decisions, judges are ethically constrained from explaining or even defending themselves against vituperative criticism if those decisions prove, with hindsight, to be unpopular with the media or with other branches of government.
Is this all new? Certainly not. Over 300 years ago, we endured witchcraft trials because the public demanded them. Ultimately, they ceased because that same public, repulsed by the sight and results of what they had earlier demanded, withdrew its support for these trials and the courts who heard them.
Sometimes, in the last few years, I have felt like we are once again living in a time of witchcraft trials – this time, however, they are brought to us electronically. Nowadays, we do not turn on the television or read the newspapers to watch the latest political and social developments, but rather to catch up on the day’s scandal and gossip. We do not turn to the media to inform us about court cases in a thorough and thoughtful way, but rather to be thrilled and entertained. Today, the media presents to us, the public, the notorious cases of our day, and we are called upon to make up our minds, to decide these cases, to reach our own verdicts.
Who did not make up his or her mind, one way or the other, about the Trayvon Martin Case after the exhaustive media coverage given to that case? And who is not watching the 24/7 coverage of the tragic background and circumstances surrounding the events which led up to Ferguson Missouri Police Officer Darren Wilson shooting 18 year old Michael Brown. Focusing on the more mundane every day cases that the Circuit and District Courts of Maryland consider daily, who is not outraged at the supposed failure of the court system and its judges when a domestic violence restraining order is issued but does not prove to be effective at keeping a stalker away from his victim?
I will not comment on the merits of a particular case. But it is proper for me to observe that these examples demonstrate that reporters, opinion writers, including Bloggers, talk show hosts, television stations, and yes, newspapers, lead citizens to believe that the media provide all the relevant facts of a particular case, and it is for them to make a decision. The problem, however, is that it is not within the province of the media or of the public to decide these cases. That is the function in the first instance of a Grand Jury and if the Grand Jury indicts Officer Wilson, a judge and/or petit jury.
How many average citizens know what a Grand Jury is and does? How many know the difference between what a Grand Jury does and what a petit jury does? I remind our readers of Henry David Thoreau’s words in his work on Civil Disobedience — He said, “A government in which the majority rule in all cases cannot be based on justice, even as far as men understand it.”
That wisdom whether our citizens understand it or not was in the minds of the drafters of our State and Federal Constitutions. Despite the tendency of many today to forget it, our government is not a democracy in the sense that the popular will is to prevail in every matter. Our government is a constitutional representative democracy where the minority is offered protection from the tyranny of the majority, and individuals are protected from government by the Bill of Rights. It is a government not only of checks and balances between the three branches of government, but one of limitation and constraint between the individual citizen and the government. Even if government reflects the will of the majority of the day, the indispensable role of the judiciary is to preserve that balance.
I know that scandal sells and that the media is not doing anything that it does not have a right to do. But, I suggest, the media is not necessarily doing the right thing. If liberty is the sum of all rights of a member of an organized civil society concurrent with the guaranteed protection against interference with those rights, and license is liberty abused, then we now seem to be moving toward a system where license is preferred over liberty.
Now, in my view, the electronic media in general are much more into the scandal game than are the newspapers. Fortunately, I still see thoughtful and informative coverage of today’s events from the print media, particularly professional and business publications. But I also see room for improvement, especially where coverage of the court system and the law is concerned.
The primary problem I see is that the media does not explain the nature of the judicial system. Rather, the emphasis is on the more sexy, racy aspects of the story. Most of the time the competition between the lawyers, the reaction of the public and the litigants, and the personalities involved are described and analyzed, not the dispute itself or the important ideas that underlie the dispute.
High profile cases are not fictitious creations or even literary works intended to entertain. Rather, they are very real events significantly affecting the lives of those involved and calling into play our constitutional system of ordered government. I believe that reporters and editors can and should strive to treat these cases as such. Furthermore, I do not think doing so will necessarily detract from the story being told, sell any less newspapers, or reduce commercial interest in the media enterprise or outlet.
In my opinion, coverage of an infamous crime should include an explanation of the constitutional and statutory rights of the accused. This coverage should not reduce those rights to mere legal technicalities that clever defense attorneys use to get their clients off. Those rights protect all of us, and they are the only feature distinguishing our form of government from an abusive system of government. Indeed, it is the court system that the media often calls upon to protect their own constitutional rights.
We should never forget that Hitler, Stalin, the Apartheid Government of South Africa, and every dictator and regime of recent history has known this fact. It is no accident that every malevolent authoritarian has sought to seize control of the judiciary – especially the criminal courts – as one of the first acts necessary to consolidate dictatorial power over the people. The message is clear – a strong independent judiciary is the bulwark of liberty and social justice.
I cannot, however, be intellectually honest in this space, which is provided after all by a newspaper, and hold the media completely to blame for the problems I am discussing. I know that the media periodically has problems with access to information in the court system and that many reporters and editors believe that the judiciary is not held to the standard of accountability that it should be required to adhere to.
Historically, the courts have not been exemplary in distributing information to the media and to the public. We have not done the best job of making the courts accessible and understandable. Furthermore, the general reluctance of many judges to talk to the media and the ethical constraints which prohibit us in some cases from doing so without question contribute to the problems I have focused on.
So, yes, more needs to be done by judges. But if judges are to open up, an effort by the media must be evident. The Judicial branch of government is different from the Executive and Legislative branches. When judges make substantive mistakes in their judicial work, they are checked and corrected by the appellate process. The Judicial Disability Commission handles ethical problems and, where appropriate, sanctions or even recommends removal of a judge from office. No such checks are available to correct illegal or incorrect decisions of officials of the other two branches of government. Nor is there any legal mechanism, short of impeachment, to remove an elected official of either the Legislative or Executive branches of government.
What we need is greater understanding and communication. A reporter should not have to contend with judges who believe that they are above scrutiny, and reporters should not have to be in good graces with clerical employees of the courts in order to get information that is supposed to be available to the public. The judicial system, on the other hand, should not be recklessly attacked and put in low public esteem or be subject to unwarranted scorn.
In saying that, as my closing comment in this column, I cannot help being reminded of a quote I have always appreciated from Goethe, which, if I may paraphrase, illustrates perhaps the basic point of this column. That point is that the judiciary will always be at war with what it ought to be. Recognizing that it is the media and the journalist’s job to describe to the public what judges and the judiciary are and do, nevertheless, if when a reporter or an editor describes what a judge does, the reporter or editor could also explain why and what the judge and court ought to do, in other words how the system should work. Then perhaps, the judiciary will some day after all be what it ought to be.