The sensational result in the O.J. Simpson murder case notwithstanding, it's an article of faith among criminal defense attorneys that sequestered jurors are more prone to convict than those who go home when the trial recesses for the day.
That's why more notice should have been paid this week when J. Michael Flanagan, who is defending Conrad Murray — the physician charged with causing the death of pop superstar Michael Jackson — asked Superior Court Judge Michael Pastor to sequester the jurors when the trial gets underway in September. Pastor said he didn't think isolation was necessary and that, given its current funding, the court couldn't afford to house and supervise a jury for the many weeks the trial probably will take.
What was equally remarkable about Flanagan's request was that he never argued that his client's right to a fair trial was threatened by a media frenzy. Rather, he argued, Murray's 6th Amendment rights were jeopardized by the attention of a single news media personality: Nancy Grace.
Grace is the former Georgia prosecutor who became a television legal commentator, first on Court TV and, more recently, on Turner Broadcasting's HLN cable channel. She's a snarling, angry presence whose habitual sneer is an epic chasm of contempt. Her view of the criminal justice system is flawlessly Manichean. There are good people — police officers and prosecutors — and evil people — defendants and their lawyers. Grace appears to have never met someone arrested who she believed should not be charged, nor anyone charged who should not be convicted.
This cartoon version of the criminal courts is justified by a damp-eyed concern for crime victims that a practiced Grace attributes — at the slightest provocation — to the death of her fiance during a robbery. Her own zealousness as an Atlanta prosecutor was such that the appellate courts three times cited her for failing to meet her ethical responsibilities. In 2005, the 11th Circuit Court of Appeals wrote that it agreed with a lower-court magistrate that Grace had " 'played fast and loose' with her ethical duties" as a prosecutor.
Precisely the same can be said of her conduct as a television journalist.
Anyone who had occasion to watch her relentless coverage of the recently completed Casey Anthony murder trial witnessed something quite new to the American news media: a mainstream news organization giving one of its commentators a nightly forum from which to campaign for the conviction of a criminal defendant. It was a campaign that continued after Anthony's acquittal with virtually nonstop on-air abuse of the jurors and defense attorneys. The impact of that torrent of contempt on jurors in future cases that come under Grace's gaze is yours to gauge.
In his argument to Pastor this week, Flanagan quite correctly said Grace's nightly commentary during the Anthony trial was "like a final argument by the prosecution." He went on to wonder: "How many final arguments do we have to face in this case? Are we going to face the one in the courtroom and the one when [the jurors] go home?"
On her show that night, Grace fired back: "The doctor charged in the death of music superstar Michael Jackson, killing him allegedly with a powerful propofol anesthesia, wants the jury sequestered, from me! From us! Claiming watching 'Nancy Grace' will prevent a fair trial; that the jury will be biased. So I guess that makes us, umm … the good guys!"
An attorney might be tempted to reply, "I rest my case."
Why does HLN, a sister channel of CNN, give Grace this sort of abusive license? The answer is simple: Ever since it abandoned its straightforward news cycle some years ago, the one-time Headline News has struggled to find an audience — and, of course, revenue. An unremitting focus on sensational criminal cases — most of them involving missing or dead white women or children — with Grace's snarl at the center of the coverage has provided that audience. HLN's saturation coverage of the Anthony trial doubled its daytime ratings and nearly tripled its share of the lucrative prime-time audience.
Scot Safon, who runs the channel, told the New York Times: "I want to replicate this when the Conrad Murray trial starts."
Here's a question to consider: Is Turner Broadcasting's abuse of its power as a news organization through the biased coverage of criminal trials really any less a betrayal of public trust than the Murdoch tabloid scandal now underway in Britain?