Two great institutions – the courts and the press – crashed headlong into each other last week in a Camden County courtroom.
On one side were dedicated reporters fighting for their right, under the Constitution, to do their jobs. On the other side was a committed judiciary, responsible for a fair trial for a murder suspect, Rabbi Fred J. Neulander, and appalled that a court order had been ignored.
The First Amendment challenge made for high drama – four sheriff’s deputies in the courtroom – and more than a few churning stomachs.
The day before the Camden Four – four Inquirer reporters found guilty of contempt of court – were to be sentenced, I talked to them in the Cherry Hill bureau. Words spilled out, conversations overlapped, as they considered the possibilities, including jail.
“We are apprehensive,” said reporter Emilie Lounsberry. “It’s a weird position for a reporter to be in. You are going to be standing in front of a judge, sentenced for doing your job.”
The next day, Judge Theodore Davis gave three of them the maximum sentence, but suspended most of the pain. He fined them $1,000 and sentenced them to six months in jail, but said they could instead perform five to 10 days of community service. The fourth reporter was fined $1,000.
The judge labeled the reporters “arrogant” for ignoring a trial judge’s ruling that the media could not print the names of jurors, or contact or interview jurors, even after the sensational murder trial ended in a deadlock.
“Where do we go from here if the media has the right to say to the judiciary, ‘We don’t care about your order. We’re going to do it our way.’ ” he asked. “What is the result? Sheer anarchy.”
No, sir, I would tell the judge. This newspaper is about democracy.
Let me explain why The Inquirer has fought so hard since August against what it believes is an infringement on the public’s right to know.
It boils down to two paragraphs in an order issued by trial Judge Linda Baxter before the trial began.
In one paragraph, she banned the media from publishing the names of jurors. In a second, the media was barred from contacting jurors, even after they had been discharged.
Rabbi Neulander will be retried in September on murder charges. The judge has moved the retrial to Monmouth County because of publicity.
It is the law of the land, upheld six times by the U.S. Supreme Court, that public records and what happens in open court can be published. In New Jersey, jurors’ names are public record and they are revealed in court.
The Inquirer twice asked Baxter to reverse herself on printing jurors’ names and she declined. During jury selection the newspaper twice went to the appellate division of the New Jersey courts, which declined to hear the appeal.
Floyd Abrams, a highly regarded First Amendment lawyer with no ties to the case, called that part of the order prior restraint and “particularly pernicious.” He was not surprised that the New Jersey Supreme Court in April unanimously reversed it.
Case law about the second issue, contacting and interviewing jurors, is less clear. The New Jersey Supreme Court upheld Baxter in a 5-2 vote.
There are cases in which reporters have been limited in the type of questions they can ask jurors, but there are no decisions in which they have been totally banned from contacting jurors after the jury has been discharged.
It is a common practice for the press to ask former jurors what happened during deliberations. They have the best insights into how ordinary citizens view the proceedings. Questions asked freely can lead to all kinds of information, some of it important, about how the court works.
When Baxter took the unusual step of extending her ruling about the press contacting jurors after they were discharged Nov. 13, the newspaper took a risk.
It again asked Baxter to lift her order. When she denied the newspaper’s request and a similar one filed by NBC News, The Inquirer went to the appellate court. The paper also went ahead with its reporting. A story published Nov. 16 said the jury had voted 9-3 to convict. It also named the jury forewoman and questioned whether she was a resident of Camden County, which she was required by law to be.
In sentencing the reporters, Davis said “the line has been breached” in publishing that story.
The Inquirer has fought back hard, and will continue its appeals, because it is the court that has redrawn the line, moving into an area that has traditionally been permitted.
The biggest irony of all is that Neulander was charged in the 1994 murder of his wife because of the dogged questioning of an Inquirer reporter.
Hit man Len Jenoff confessed to reporter Nancy Phillips his role in the murder-for-hire plot. With Phillips present, Jenoff then told his story to the county prosecutor, who brought the rabbi to trial. That shows a democracy is best served when reporters are allowed to talk to citizens without fear of going to jail for doing their jobs.
