There’s a great old song performed by a guy named Bobby Fuller. You know the one I’m talking about: ”I fought the law, and the law won.”
That lyrical line, in a nutshell, is the interesting — and frustrating — sort of conundrum journalists and journalistic organizations find themselves in, time and again.
Standing for the people and the public interest, and standing on the First Amendment, journalists cover trials, investigate wrongdoings, nose around government or publicfunded entities, all in the name of a day’s work, a profession’s hallmark and, last but surely not least, in a democracy’s be-half.
But time and again, and despite First Amendment and other legal guarantees, elected officials and their functionaries do what they can and then some to prevent news from being uncovered, then covered and reported.
They smack us back with sealed records, stonewalls and sequestered meetings.
We press forward, reminding officials of federal and state information and open records laws as they apply. Some of us even carry copies of the laws around with us, and offer them up in an impasse.
When that doesn’t work, we go to court to make our case for access and to buttress the right of the press — an agent of the people — to do its job in witnessing what is the people’s business.
So are we just nosy troublemakers, as some readers think? Or is something more than titillation driving us in our tiring and expensive pursuits of access?
Now seems a good time to explain why we sometimes appear to fight the law in doing our jobs — and by law, I mean elected officials, some of them judges.
The Courier-Journal went to court — again — last week to try to maintain public access to what should be a public forum and a public function: jury selection in a Bullitt County murder trial.
But Bullitt Circuit Judge Thomas Waller had a different idea.
Waller announced the media would be barred from the courtroom as potential jurors were questioned by defense and prosecuting attorneys about the death penalty and pre-trial publicity. Those attorneys had asked that the process, in which people are asked about personal experiences and personal opinions, be closed.
The Courier-Journal challenged the judge’s decision, and he held a hearing to listen to legal arguments. After Thursday’s meeting, Waller maintained his previous position, saying media coverage could taint the jury. He ordered jury selection to resume outside of public view and told reporters they could read transcripts of the questioning after the jury was seated. (The newspaper would have to hire a court reporter and pay for the transcripts.)
”News is news when it happens. To delay that is to deny coverage. We are not in the business of covering history,” said Jon Fleischaker, the newspaper’s attorney.
The Courier-Journal has appealed the decision to the Kentucky Court of Appeals. More on that in a moment.
Let us not forget that at the heart of this legal matter is the bigger matter of trying to see that justice is done for Jessica Dishon, a 17-year-old Bullitt Central High School student whose body was found 17 days after she disappeared from her home on Sept. 10, 1999.
David ”Bucky” Brooks is charged with Jessica’s beating and strangling.
In recent weeks, there were questions about whether the death penalty could be assigned to Brooks if a jury found him guilty.
Why?
Last year, the U.S. Supreme Court said mentally retarded killers cannot be executed. Brooks’ scores on IQ tests have ranged from 69, according to his attorneys, to 77, according to the judge; 70 is the typical boundary line.
But also last week, Waller ruled Brooks is not retarded and can be executed if found guilty.
The ingredients so far, in making this a compelling and newsworthy trial to cover for the people who are paying for it and in whose name it is being prosecuted:
* The violent death of a young woman in our community;
* The possible application of the death penalty;
* The questionable competence of the defendant.
And I would be remiss if I didn’t add one more thing:
Last November, The Courier-Journal published a series of stories titled, ”Justice Delayed, Justice Denied.” The news stories detailed how hundreds of felony cases had become lost in the Bullitt County court system for periods of years to decades. Waller, now the circuit judge, was the commonwealth’s attorney for some of those cases. The current prosecutor, Mike Mann, is responsible for others.
Given the shocking findings of that series, here’s ingredient No. 4: We want to keep an eye on Bullitt County justice. If we keep our eye on it, you do, too.
So the newspaper has gone to court to ensure as much access to the proceedings as we — and that’s you, too — can get.
We do that for the same reason we published, in the case of the Lexington Diocese and allegations of misconduct by priests, information that had been contained in sealed court records. (The newspaper’s position was upheld by the Kentucky Supreme Court less than a month ago.)
It’s the same reason the newspaper has been locked in an ongoing legal struggle to open the files of the University of Louisville Foundation to look at the donor list to the McConnell Center.
Simply:
The people’s business belongs to the people. The press just tries to ensure that it stays open to the people.
So back to ”I fought the law, and the law won.”
There are laws to protect access to public business and public proceedings.
So when we fight The Law and we win one of these cases, the law wins.
And when the law of access wins, everybody wins.
As Damon Keith, senior judge of the U.S. 6th Circuit Court of Appeals, wrote last year, ”Democracies die behind closed doors.”
