Jury Still out on McVeigh Trial
Brown, Bruce D., The Quill
You would expect the official court docket for the recently concluded trial of Timothy McVeigh to be hundreds of pages long. And on these records you would expect to find countless motions and cross-motions and hearings and other evidence of the strategic maneuvering that took place during the first of two prosecutions for the bombing of the Murrah Building in Oklahoma City. Those entries-and there are thousands of them-tell the incremental story of McVeigh's journey from arraignment in 1995 to guilty verdict to death sentence.
But the docket report tells another narrative as well. On these sheets are scores of entries regarding the scope of news media coverage of the events in Denver. Knowing that McVeigh's trial would produce some key tests in the ongoing and long-standing clash between free press and fair trial rights, newspapers and broadcasters formed a legal coalition to advance with a unified voice their interests before the court.
The coalition found plenty to challenge. Presiding Judge Richard Matsch redacted public documents, issued gag orders limiting press contact for lawyers in the case, denied McVeigh's request to give on-camera interviews, withheld personal information about jurors, and even ordered the construction of a wall in his courtroom between the jury box and the gallery. The news media made a wave of protests to Matsch, and in some instances brought matters to the U.S. Court of Appeals for the Tenth Circuit, but to little avail. Now that the trial has concluded, the question for journalists is what the restrictions in Denver may portend for future courthouse reporting.
"Many media people are concerned that because of the dispatch and the efficiency [with which] the judge ran this trial that these secrecy provisions will be adopted by other federal judges in other cases," said Chris Cubbison, projects editor for the Rocky Mountain News who coordinated the paper's coverage of the McVeigh prosecution.
The McVeigh trial unfolded, of course, against a backdrop of litigation over the last two decades concerning the rights of journalists to cover the criminal justice system. Thanks to United States Supreme Court victories during this period, criminal proceedings, including jury voir dire (the screening process that weeds out unsuitable jurors from the jury pool) and crucial pretrial hearings, are presumed to be open to the public. Judges still can remove the public (and thus the press) from the courtroom, but they are expected to make a significant showing in order to do so.
One of the questions left open by this line of Supreme Court precedent concerns access to court documents under the First Amendment. The media coalition pushed this issue into the fore of the McVeigh trial, and early in the proceedings Matsch laid out a balancing test he said he would use in deciding whether to seal portions of the record.
It seemed like a victory for the pressa recognition of its concerns about secrecy-but the judge still ended up redacting several key documents before releasing them for public consumption. Among those were motions made by McVeigh and co-defendant Terry Lynn Nichols requesting separate trials, as well as Nichols' motion to suppress evidence. Matsch also completely sealed an exhibit of FBI reports of its nine-hour interview with Nichols in April 1995.
News media representatives argued that these materials fell within the public's right to observe criminal proceedings and that their release would not compromise the fair trial rights of the defendants. Counsel for McVeigh and for Nichols said the publicity would be far too prejudicial, holding up the Sixth Amendment side of the equation. In July, the Tenth Circuit upheld Matsch's actions. The appellate panel only considered the trial judge's rulings under a very limited standard of review-it asked whether he had "abused his discretion" in making these decisions-and therefore it may now be more difficult for the press to get a serious look on appeal when it loses access issues in lower courts within the Tenth Circuit. …