"It seems to be a reflex action," said Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, which battles to unseal court documents in cases big and small. "We tend to have more faith in juries, and believe they can follow instructions and base their decisions on what they hear in court."
Joshua Marquis, an Oregon prosecutor on the board of the National Assn. of District Attorneys, wasn't so sure. "I believe celebrity is the great corruptor of our society," he said.
Marquis said feeding documents into the maw of tabloid TV shows and websites such as the Smoking Gun, which specializes in posting court records, always risks polluting the jury pool. "If you have an affidavit, it's going to be on the Internet in 24 hours," he added.
Miami defense attorney Albert Krieger, who once represented New York mobster John Gotti, said lawyers now have to worry about made-for-TV movies tainting juries in cases that haven't even been tried. USA Network aired a dramatization of the Peterson investigation in February.
"It sure raises issues about a fair trial," Krieger said. "The media is more pervasive and more penetrating into our homes and lives than it's ever been."
The crush of media in Stewart's stock fraud trial prompted a federal judge to close jury selection, an extraordinary step.
"Throughout history, we've had public selection of juries," said David Schulz, a New York lawyer for newspapers and broadcasters covering the case.
The U.S. attorney's office had asked for the secret proceeding -- the court released transcripts after each session -- saying prospective jurors might not answer questions candidly with the media present.
In granting the request, U.S. District Judge Miriam Goldman Cedarbaum cited a precedent in the 1998 fraud trial of black boxing promoter Don King. Jury selection was shuttered in that case on grounds that panel members might lie about their racial attitudes if journalists were in the courtroom.
Schulz argued for his clients that it was a stretch to apply the King reasoning to the Stewart trial. An appellate court set aside Cedarbaum's order, saying "openness acts to protect, rather than threaten, the right to a fair trial."
By that time, however, the jurors had been seated and the trial was underway. "It was too late," said Schulz, who added that he hoped the appellate ruling would dissuade judges from slamming the doors in the future.
