Journalists and the Courts: Can’t We Just All Get Along?

Prosecutor Melissa McKowan (SF Chronicle photo). She has a much nicer haircut and dye job now.

I took a day off from the Dr. William Ayres trial in Redwood City because my poor crippled body simply refused to take itself to the light rail and Caltrain this morning. Living in a body that’s had three back surgeries and nine knee surgeries means that some days it’s those body parts that tell me what to do rather than my brain telling them what to do.

If you are looking for an update on today’s trial, please check out the William Hamilton Ayres Watchdog site. There are multiple correspondents in attendance who will do a fine job of giving the reader an insider’s view of today’s proceedings. Also check out the links at the end of this article.

I want to write about the media sideshow that you may not know much about.

On the afternoon of June 4, freelance reporter Victoria Balfour was asked to leave the courtroom. Balfour had been in the courtroom during pretrial motions and jury selection, and that afternoon San Mateo County Deputy District Attorney Melissa McKowan pointed Balfour out to defense attorney Doron Weinberg. Before flying out to California from New York, Balfour had previously double-checked with Chief Deputy District Attorney Steve Wagstaffe, making certain she was permitted to attend the trial and that she was not going to be a witness. She had received no subpoenas. Wagstaffe assured her she was in the clear.

Balfour was instrumental in keeping the investigation going, locating former patients of Ayres and prodding the San Mateo police and then the DA’s office to bring the case to trial. She was supposed to be providing coverage for a San Diego newspaper.

Instead, Balfour’s found herself looking for an attorney who would take her case on pro bono (being a freelancer, she does not have a nice legal department to call upon), and she’s sitting outside in the hallway, eager for tidbits of information.

Balfour is not the only media source to undergo a bit of grief. Local ABC affiliate KGO (Channel 7, ABC) sent one of its most seasoned reporters, Vic Lee (who has 40 years of experience in television journalism!), and a camera person to cover opening arguments. Lee was in the courtroom; his cameraperson was not. KGO had faxed a request to the San Mateo County Courthouse asking for permission to film opening arguments.

Just prior to opening arguments starting, Superior Court Judge Beth Freeman listened to an emergency motion filed by Balfour regarding her exclusion from the courtroom. Just prior to the meeting, defense attorney Doron Weinberg presented her pro bono attorney with a subpoena.

Deputy DA McKowan did not verbalize any objections to Balfour being in the courtroom, but one wonders why she pointed Balfour out to Weinberg in the first place.

Weinberg has never had a conversation with Balfour. He has no idea of what she may know or does not know or how that information could benefit his client in the first place.

Observers aren’t quite sure what sort of information Balfour may have that will help either the prosecution or the defense. She knows only what she has been told about the case. She did not know any of the men prior to this case; she, like the men, does not possess any firm physical evidence that they were molested (scars, diary entries, etc.). How can anything she may be queried about be anything but hearsay?

Thus far the San Mateo County District Attorney James P. Fox has not released a statement on this matter at all.

Immediately after Superior Court Judge Beth Freeman ruled that Balfour could listen to opening arguments only, Vic Lee raised his hand to be heard. He asked the judge about his cameraperson being allowed to take video of the opening arguments only. Judge Freeman could not recall such a request being made to the courthouse in timely manner and denied his request. Less than an hour later, the faxed request, which was indeed sent in a timely manner, was located, but the judge still did not allow KGO to take video in the courtroom itself.

Instead, the television station ended up with lots of photos of people standing around in the hallway. Heck, I even made it on television, standing around waiting!

San Mateo County Superior Court is where the Scott Peterson trial took place, so there is a bit of history of exclusion of television coverage. Judge Freeman stated that this case (Ayres) is no more important than any other, so no preferential treatment will be given by allowing cameras into the courtroom.

I believe KGO planned to follow through with additional legal action but I’m not positive. Vic Lee stayed all day on Tuesday, listening to opening arguments and the testimony of the first witness.

Balfour sat through the reasonably brief opening arguments, and as soon as the first witness was called, both Weinberg and McKowan watched as Balfour got up and walked out of the courtroom to wait in the hallway.

Excluding journalists from covering a trial is bad enough—and I believe the examples in this case can be very chilling to First Amendment rights.

Here is the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Here is my fear: at what point does a journalist become a potential witness? Let’s say a journalist learns of a crime by listening to a police scanner. He or she shows up to the scene, after the crime or incident, and starts reporting (broadcast or print).

Is he or she now a witness? To what? And if this journalist shows up sometime later to cover a resulting court case, are they a potential witness? What does that person have to say—how can that person have any knowledge of the actual crime or event? Has that reporter now become part of that event, someone who possesses evidence?

I even tried to play the devil’s advocate and try to see things from McKowan or Weinberg’s point of view. Does Balfour know so much about the case that McKowan feels uncomfortable with someone else in the courtroom? Is Weinberg angry about having to defend Dr. Ayres? But Ayres is a paying client, why would Weinberg be so angry to the point to bar a journalist who helped to make the investigation happen? If anything, he should be thanking her for making it necessary for the good doctor to have to pay for his highly skilled services! (Mind you, I have the utmost respect for both attorneys. I can’t do what they do, but sometimes I don’t understand why they do some of the things they do!)

Still playing the devil’s advocate, when dealing with a trial such as this one, where the witnesses are highly traumatized and testifying with their identities limited to only their first names and surname initials (unless someone slips up!), is it the right thing to plaster their faces onto television screens? Is it right that a print journalist describes what the person looks like, writes about his background to the point that people in his community could guess it was him. Is there too much transparency?

In this case, I believe the public’s right to know is vital. I also believe that journalists should understand the sensitive nature of what they are writing about. The San Mateo County Times reporter is an excellent example of a tempered journalist. Elizabeth Pfeffer strikes a balance between informing the public of the goings-on and maintaining the anonymity and dignity of those who testify. Her coverage is worth reading.

Despite my lack of a paycheck or proper job in journalism (though I have received a journalism-based undergrad degree), I am trying to be as professional as I can in my coverage. Yes, T & T tends to be a pro-prosecution blog, but we certainly can and will criticize a DA or defense attorney for missteps. I have promised I will not write derogatory things about the good doctor’s family members in attendance. They are not on trial. I have promised I will minimize sensationalizing any of the testimony unless I have to. Suffice it to say, if you want to think the worst about this trial, I encourage you to do so, because it’s probably the truth.

This is what I really want to come out of this trial—I want parents to grow some cajones and be very suspicious and protective of their children. I want the to question everything their family doctor or school educators say about their kids—why does my son need to see a full-blown psychiatrist for a suspected learning disability? What kind of therapy will a psychiatrist do for my bed-wetting child? My child with self-esteem problems? My child with possible ADD or ADHD?

Trust no one where your children are concerned. Being too trusting of certain people can result in your ADD son or daughter becoming victimized by someone that you may be paying to help ensure your child’s future success.

Instead, what you end up purchasing is a child abuse victim. If you think dealing with ADD is hard, try dealing with a forever scarred child!

T & T will be back in the courtroom tomorrow.

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DA builds molestation case against doctor