19 March 2015

First Amendment Follies: Agnew, CBS, Durst, and the FAF Gang

In the last chapter, I wrote about reporters who sued to quash subpoenas we issued in the Agnew case; the reporters and their distinguished First Amendment Fundamentalist (hereinafter “FAF”) counsel argued that it was unconstitutional to require journalists to say under oath whether they told the truth in their published newspaper articles. (They had reported that government sources leaked to them confidential stuff about the Agnew investigation.  We wanted to ask each reporter one question: “Were you telling the truth when you wrote that?”)  I thought the FAF legal argument was absurd and looked forward to the contest. But the Vice President’s plea ended the case and that question was never answered.

But FAFs are persistent. No position is too extreme. My favorite example comes out of a case I tried some time back. I represented Brown and Williamson in a libel suit against CBS and its Chicago anchor Walter Jacobson. The case was tried in two parts, first liability, and then damages, (if necessary). Immediately after the jury verdict establishing liability, Jacobson held a press conference in the courthouse lobby and said he did nothing wrong, and he would not hesitate to repeat the same libelous statements.  Inasmuch as “deterrence” is one of the established goals for the imposition of punitive damages, Jacobson’s statement was obviously material and I offered it in evidence in the  damage phase. The CBS lawyers vigorously objected, arguing that for the jury to see and hear the public statement made by the defendant journalist would be a violation of his First Amendment rights!  I thought the top of my head would come off.  I had been standing in the well when I offered the tape in evidence, and when they made that objection, I reflexively twirled my pen skyward and then caught it on the way down. My partner Lew Clayton muttered aloud, “Oh shit, London’s going to jail!”  The objection was beyond absurd, but I give the CBS lawyer credit: he made it with a straight face. I give the trial judge credit too: he had a straight face when he overruled the objection and let me play the damning tape for the jury, which then gave us a whopping $5 million verdict.

And speaking of self-destructive defendants, we come to Robert Durst. Fascinating. Lawyers, psychiatrists, and everybody else is all over this case. Front page stuff. What a story. When the Times ran an article that touched on the question of the admissibility of Durst’s bathroom mutterings, (confessions?) one legal genius commented that use of his words in court would violate his First Amendment rights because he was in a bathroom where he had an expectation of privacy! I wonder if that commentator works for CBS.

Also interesting is the related question of outtakes, i.e, are the unpublished hours of the Jinx film protected from subpoena? FAFs are keen on this question.  Why? The argument goes something like this:   to be free to gather and report the news, journalists must be free of taint, i.e., if they are seen as government agents or potential government agents, people will be reluctant to talk to them, which in turn leads to suppression of the news, which in turn is a suppression of speech and therefore a violation of the First Amendment. Some courts and legislatures have accepted that tortured rationale and have granted reporters protection for confidential source materials. The FAFs would extend that immunity to non-confidential outtakes as well, which, as I see it, would give anyone who could claim status as a journalist (bloggers too, maybe?) the right to decide to keep secret virtually anything said to them, as long as it might be the subject of an article, essay, or whatever.  That would give “journalists” the ability to suppress anything not actually published--rights far exceeding the obligations of secrecy imposed on, for example, a clergyman in the confessional.

Hmm, how does “Rev London” sound?

Far fetched? I think so, but without asking for my opinion, courts and legislatures have nevertheless protected some non-confidential outtakes where the documentary journalists are truly independent.  But there is a total lack of consistency here.  The Durst independent producers said they thought they had a moral obligation to turn over incriminating evidence before it was published, so it was an “outtake” when they gave it to the police. One of the Times articles noted that another documentarian of note, Joe Berlinger, once voluntarily gave the police a bloody knife a witness had given him while he was doing a film to which the weapon was relevant. But years later, in the Chevron case, Berlinger objected to yielding outtakes that revealed possibly corrupt judicial interference by the group that financed his film.  His lawyers and a tranche of FAF’s argued that forcing the revelation of the outtake clips would offend First Amendment principles. The FAFs lost, both in the trial and appellate courts, the outtakes were surrendered, and the court ultimately ruled that Berlinger’s sponsors had been complicit in serious misconduct.

As a matter of principle, what’s the difference between an incriminating knife and an incriminating statement caught on tape? Only Mr. Berlinger knows.  Ya gotta problem with that?

But Durst is a criminal case, and the stakes are higher. The defendant has constitutional rights to the assistance of counsel and to due process of law. Will he get the Jinx outtakes?  Especially if  the prosecution plans to use some part of the recorded Durst statements, any so-called First Amendment right to suppress outtakes will likely be trumped by the defendant’s constitutional right to a fair trial.
In reporting on the acquittal following Durst’s killing and dismemberment of his neighbor Morris Black, the Jinx film includes a clip of a Galveston detective noting they recovered all but one of the deceased’s body parts, each in a separate black garbage bag. The bag that had contained the head was empty. The detective said that the empty bag had not been torn open by rocks or abrasion, but had been neatly slit by a knife or razor. He inferred that when Durst saw the bags still floating, he slit the bag open and removed the head, thereby preventing the government from using that evidence to disprove Durst’s claim of accidental shooting. Like all of Kathleen Durst, Morris Black’s severed head was never found.  

The State of California will claim that Durst murdered Susan Berman because she had been his spokesperson regarding the disappearance of Kathleen Durst, and Ms. Berman was about to be interviewed by New York law enforcement authorities regarding that open case. The inference is that Durst killed Berman to silence her.

What a trial this will be! High profile defendant, high profile lawyer, sensational allegations. Wow. Sign me up for the red carpet.  For the Berman killing, will the Los Angeles officials bring back Judge Ito?

By the way, I have not read the transcript of the Morris Black murder trial in Galveston. Are the rumors true that Durst’s lawyer won the case because he argued to the jury, “If the black bag was not slit, then you must acquit!”?

Ahh, ya can’t make this stuff up. Well, not all of it anyway.

By the way, nobody else on this island gives a shit about any of this. Why should they? The sun shines every day, the wind has subsided to a perfectly polite breeze, the Bucket regatta starts tomorrow and the harbor is chock full of gorgeous ocean-going sailboats.

Enough of Robert Durst. I am going to the beach.

A bientot.

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