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Justice and the media: should suspects in criminal investigations be presented in the media?




Echo Issue Outline 1998 / 37: copyright © Echo Education Services
First published in The Echo news digest and newspaper sources index.
Issue outline by J M McInerney

What they said ...
`It's important that the killer is caught, tried and convicted, but by the judicial system - not the media'
Jen Fitz, from a letter to the editor published in The Australian on September 3, 1998

`The media can claim to be acting in the public interest in reporting both a police investigation into serious crimes and the tactics employed by the police'
The Australian editorial published on September 7, 1998

In April, 1998, a Perth public servant was identified as the chief suspect in the Claremont serial murder investigation in a report published in The West Australian.
On August 28, 1998, ABC television news broke the story that the man had failed a lie-detector test. The ABC also gave the man's Christian name.
On August 31, 1998, the man was fully named and unedited footage of him was shown on Channel 10 in Perth.
This reporting has met with criticisms from several prominent legal figures, including the Western Australian director of public prosecutions. A number of civil liberties groups have also protested. The police, however, have claimed that they have not leaked information, nor attempted to make improper use of the media.
In Queensland, the issue of media coverage of suspects has also been raised.
At the end of August, the Labor premier, Mr Peter Beattie, asked a sitting Labor member to resign pending possible investigations into child abuse allegations. Several Queensland media outlets have named the parliamentarian.

Background
The Claremont serial murders have attracted enormous attention in Western Australia. Three young women disappeared from the once-popular Claremont nightclub strip between central Perth and Fremantle.
The disappearances occurred between January 1996 and March 1997. One young woman's body was in August, 1996, another in April, 1997.
In April, 1997, the public servant who has since been publicised, was questioned and later was one of 58 people who had a lie-detector test. This man, along with a couple of others, failed the lie-detector test.
He has been under police surveillance since April, 1998. Just prior to this his house had been searched.
To date no evidence linking him to the crimes has been found.
The man was originally questioned because he was observed frequently to drive around the area where the abductions are believed to have taken place and because he gave one young woman who was outside a Claremont hotel a lift home.
There is less information available, at least in Victorian newspapers or The Australian on the Queensland Labor parliamentarian who has been named in some Queensland media outlets in regard to a suspected child abuse.
An independent parliamentarian on whose support the Labor Government relies has threatened to vote against them if the man does not stand down. The premier, Mr Peter Beattie has requested his resignation. To date, the parliamentarian against whom the allegations have been made has not been questioned by the police.

There are a number of Internet sites with useful information regarding this issue.

The Media, Entertainment and Arts Alliance (Australia) has reproduced in full the Journalists' Code of Ethics. The code can be found at http://www.alliance.aust.com/3-3.htm
All members of the Australian Journalists' Association are meant to abide by this code.
The code makes reference to `respect for the truth and the public's right to information'. However, it also refers to the need to `respect ... personal privacy' and the need to disclose `all essential facts'. It would appear to be a matter of judgement as to whether naming suspects in criminal investigations is disclosing `essential facts'.

There are several good sites that deal with aspects of the Richard Jewell case. Some of the commentators on the naming of the suspect in the Claremont serial murder case have compared it with the treatment of Richard Jewell.
On July 27, 1996, a bomb exploded in Centennial Park during the Atlanta Olympics.
The security guard, a Mr Richard Jewell, who found the bomb and attempted to warn people away was first publicly praised as a hero. Later, however, it was released that he was being treated as a suspect and was the subject of an FBI investigation. Both the fact that he was a suspect and details of his private life were widely published.
Later still, it was announced that Mr Jewell was no longer a suspect. Mr Jewell subsequently sued various media outlets for libel.
The Jewell Box is an extensive site supplying information on many aspects of this case. It can be found at http://www.cln.com/jewell/ From its interactive sub-site it is also possible to access links to a number of others sites include some very useful discussion of the issues raised. Its links page can be found at http://www.cln.com/jewell/interactive/links.html
There was a treatment of the ethical issues raised by this case published in the New York Times in 1996. It was titled News media's naming of bomb suspect raises ethics issue.
It can be accessed on the Internet through the on-line news site Nando.net at http://152.52.2.50/newsroom/nt/801ethics.html
On August 4, 1996, the Washington Post also published an interesting consideration of the implications of this case for editors and journalists. It was written by Geneva Overholser and titled Suppose He Didn't Do It? It can be found at http://www.washingtonpost.com/wp-srv/national/daily/aug/05/ombuds.htm
The Poynter Institute, a well-regarded United States school for journalists, has presented a very useful three-way discussion on some of the issues raised by this case. Titled Journalists and Jewell: Teaching Old Watchdogs the Right Tricks, it can be found at http://www.poynter.org/research/me/et_jewell.htm

The Freedom Forum has also reproduced a five-way discussion on privacy and media ethics. The discussion is drawn from the Forum's 1996 Conference on Privacy. It includes some interesting remarks on both the Jewell case and the extent to which public figures, especially politicians, can expect privacy.
The discussion can be found at http://www.freedomforum.org/FreedomForum/oakland/privacy1.html
The Freedom Forum is a non-partisan, international foundation which seeks to promote free press and free speech. It conducts conferences, educational activities and has an on-line service.


Arguments against suspects in criminal investigations being presented in the media
The main argument against suspects in criminal investigations being presented, and perhaps named, in the media is that it undermines the presumption of innocence.
Those who maintain this point of view stress that our criminal justice system is founded on the principle that anyone accused of a crime is regarded as innocent until he or she has been judged guilty in a court of law.
It is argued that any suspect named in the press or on radio or television undergoes `trial by media'.
What is meant by this is that the media draws attention to the suspect solely in connection with a crime and the suspect is then placed in the position of having to prove his or her innocence. This, it is claimed, is the opposite of what happens in a criminal court, where the prosecutor has to establish the guilt of the defendant.
This point has been made by Felicity Hempel, QC, acting president of the civil rights group, Liberty Victoria.
Ms Hempel has claimed, `It is a hallmark of a civilised society that you don't have lynch mobs or vigilantes or groups taking it upon themselves to make assumptions of guilt or innocence.'
Commenting on the Western Australian case, Ms Hempel argued, `The suspect is in effect put in a position where he is called upon to prove his innocence, and where his remaining silent could quite improperly be used against him as an admission of guilt ...'
It has also been claimed that should the suspect go to trial, it may be extremely difficult to find a jury that has not been prejudiced against him by pre-trial publicity.
It has been claimed that this could have a dual effect.
Firstly, it has been suggested that if the man is innocent it may be difficult to find a jury that will approach his case impartially and reach an appropriate verdict. This point has been made by Mr Richard Utting, a well-known Perth lawyer.
Of particular concern to some is the fact that it is now public knowledge that the suspect failed a lie-detector test. This is said to be disturbing as uncertainty about the reliability of these tests has always prevented their results being used in Western Australian courts.
Some commentators have noted that the media coverage now means that `evidence' which would not be admissible at a trial may now colour the views of a jury against the suspect.
Secondly, it has been suggested that if the man is guilty, the need to counter the effect of pre-trial publicity may hinder the prosecutor's case.
This concern has been expressed in an editorial published in The Australian on September 7, 1998. The editorial stated that the media focus on the suspect `may prejudice any future trial, and thus the prospect of a conviction.'
In a letter published in The Australian on September 3, 1998, Mr Malcolm Hall suggested that one of the consequences of the publicity surrounding the case could be `a permanent stay of any prosecution on the ground that a fair trial would be impossible'.
In addition, those who object to any media focus on suspects stress that such attention places an unfair personal strain on the individuals involved.
Malcolm Hall, in a letter published in The Australian, suggested that the man publicised in relation to the Claremont serial murder case could be placed under so much pressure that he commits suicide.
It has also been stressed that such publicity severely damages a person's reputation and that this is inappropriate when no charges have even been laid.
This point has been made by the Western Australian director of public prosecutions, Mr John McKechnie, commenting on the media's treatment of the suspect in the Claremont case. Mr McKechnie has stated, `There is no evidence against this man ...[yet] his life has been destroyed ...'
It has also been noted that media attention on suspects can have a damaging effect on the lives of their families. The mother of the suspect named in the Claremont investigation has stated, `It makes you very nervous, having people looking at your house all the time, and all the neighbours have been wondering what is going on.' (The woman's comment appears to be about the effect of police surveillance, however, she has claimed that the family's situation has been worsened by the attention of the media.)
Critics of media attention being directed at suspects also claim that this can be an attempt by the police to exert improper pressure on suspects.
According to this line of argument, the police may leak the name of a suspect to the media in the hope that the strain created by the media's reporting of this person will cause him or her to confess or to behave in a way that will help to establish their guilt.
However, critics maintain that if the police do not have sufficient grounds on which to charge a person they should not be able to use the media to help make their case.
Kate O'Brien, the president of the Western Australian Law Society, has stated, `The police should either charge him or keep their information to themselves.'
It has further been suggested that the media often acts out of a competitive desire to secure the best story, rather than a desire to reveal the truth in the best interests of the public.
According to this line of argument, publishing and broadcasting decisions are often based on commercial considerations, that is, a story may be released because it is believed it will attract readers or viewers, not because it is ethically appropriate to do so.
The Western Australian director of public prosecutions, Mr John McKechnie, has stated in relation to the Claremont revelations, `As so often happens ... instead of asking the question should we be reporting this, everybody goes hell for leather because they don't want to be outdone by anyone else.'
Mr McKechnie has further suggested that these commercial considerations increase the likelihood of the police being able to use the media to exert improper pressure on suspects by leaking information which then receives media attention.
Finally, it has been suggested that public figures, including politicians, should have the same rights to privacy and to fair treatment under the law as other people.
According to this line of argument, any politician under investigation for a crime should be presumed innocent and should neither be compelled to resign nor become the focus of media attention.

Arguments in favour of suspects in criminal investigations being presented in the media
One of the main arguments offered in support of the media supplying information about suspects in criminal investigations (including, in some circumstances, revealing their identity) is that the public has a right to this information.
It has been claimed that in cases that have had a large impact on the community, such as the Claremont serial murders, it is in the public interest to know how the investigation is progressing.
Western Australian Police Commissioner, Bob Falconer, has described the state of community concern after the third young woman disappeared. The Commissioner stated, `There was almost a state of dysfunction in our community ...'
According to this line of argument, keeping the public informed can help reduce panic and may also prevent members of the public putting themselves at risk.
This position was summed up (though not supported) in an editorial published in The Australian on September 7, 1998. The editorial stated, `The media can claim to be acting in the public interest in reporting both a police investigation into serious crimes and the tactics employed by the police.'
Those who support media coverage of suspects in criminal investigations also claim that this is unlikely to seriously affect the person's chances of a fair trial if the case later goes to court.
Professor Sally Walker, from the law school at Melbourne University, has claimed that courts and judges are capable of mitigating or reducing any prejudice that may have been created in the minds of jurors by pre-trial publicity.
According to this line of argument, the trial judge will be able to instruct the members of the jury to disregard any preconceptions they may have formed of the accused from the media.
Professor White has noted that it is extremely unlikely that a permanent stay of prosecution would be granted because pre-trial publicity had made a fair trial impossible. Professor White has said that this would only happen in the very unlikely event that `nothing the trial judge can do, in the conduct of the trial, [could] relieve [any pre-existing prejudice among the jury]'.
Others who argue that the media should be able to present information on suspects in criminal investigations claim that this is appropriate when the suspect seeks media attention or is already publicly associated with the case.
In the case of the Perth public servant who is a suspect in the Claremont serial murderers investigation, it is noted that the man and his parents spoke voluntarily to the media.
The man's parents appear to have spoken to the media to protest about the on-going police surveillance they have been subjected to and to indicate that they believe their son is innocent.
In circumstances such as these, some have claimed, the media is doing no more than allowing a suspect or that person's family to put their position.
Western Australian radio host, Howard Sattler, whose program had sought unsuccessfully to interview the suspect, claimed that all his program was doing was giving the man a right of reply.
`In a democracy, ' Mr Sattler claimed, `human beings are allowed to protest their innocence.'
It is claimed it is also appropriate to reveal the identity of a suspect when the person is already well-known in connection with the case. This argument was presented in the Richard Jewell case.
Mr Jewell was for a time suspected of having planted the bomb which went off at the Atlanta Olympics, causing injury and loss of life. His name was published as a suspect and details of his life were presented in the media.
In explaining their readiness to present material about Mr Jewell, media spokespeople have noted that his name was already known in association with the case as he had received extensive initial publicity as the man who had found the bomb.
Under these circumstances, it has been claimed, the media is not responsible for publicly linking the suspect with the investigation.
It has also been claimed that public figures, especially politicians, who are suspected of committing serious crimes may also represent a special case.
According to this line of argument the possible criminal status of an elected politician may affect the degree of trust the public is prepared to place in him or her.
Those who hold this view maintain that the public may have a right to know if one of their elected representatives has been named in connection with a serious crime. It may also be appropriate for that person to stand down from their official duties until such time as they are no longer the subject of police inquiries.
This appears to be the position adopted by Queensland premier, Mr Peter Beattie, who has requested that a member of his government named in relation to a child abuse investigation should resign, at least until he is no longer under suspicion.
Finally, with regard to the position adopted by the police in this matter, they generally claim that they do not make improper use of the media to exert pressure on suspects.
Detective Inspector Caporn, who is in charge of the Claremont investigation, has stated, `We have boundaries of ethics, integrity and legality and we will not cross those boundaries.'
Detective Inspector Caporn has been reported to have claimed that police did not leak the suspect's name and address, nor that he had failed the lie-detector test.
It has also been claimed that Detective Inspector Caporn was angry that The Western Australian newspaper revealed that the suspect's home had been raided by the task force investigating the Claremont murders.
The police also claim that they are careful to indicate to reporters when they do not have sufficient evidence to charge a suspect and that they do not reveal information that might damage an investigation.
In the case of the Claremont killings, for example, the police have refused to release details of how the two women whose bodies have been recovered were killed.
Detective Inspector Caporn has claimed, `I'm never going to give you details of what's going on inside the investigation ...'

Further implications
At this point it is not possible to say if the public servant who has been named in the Claremont murder investigation will be charged and proceed to trial. If this does happen his lawyer may well seek to have the case dismissed on the grounds that pre-trial publicity has made it impossible to find an impartial jury.
Any attempt to argue for dismissal on these grounds would be a major test of the supposed impact of media coverage on a subsequent trial.
If the case does not go to trial the public servant concerned may attempt to sue the media outlets which have named him. His case is complicated, however, by the fact that he and his family may have sought at least some of the media attention they have received.
Mr David Utting, a prominent Perth lawyer, has claimed that the case shows that contempt of court legislation should be extended to limit media scrutiny of people who have not been charged with a crime.
The situation with regard to the Queensland Labor parliamentarian is perhaps more complex.
The same considerations regarding a fair trial will apply should this man ever be charged and prosecuted. Prior to any trial, however, there is the question of whether he should be compelled to stand down from parliament.
Regarding the media's treatment of his case there is the complicating factor that the man is not a private figure. Queensland Labor has such a narrow majority that this man's fate could determine the fate of the current government.
Does this mean that the public's legitimate interest in his case outweighs any right he may have to have his privacy protected?

Sources
The Age
1/9/98 page 2 news item by David Reardon, `Parents defend suspect in Perth serial killings'
1/9/98 page 4 news item by Greg Roberts, `Child-sex claims rankle Qld Labor'
2/9/98 page 5 news item by David Reardon, `Hounding of murder suspect may ruin trial, experts warn'
5/9/98 page 1 (News Extra section) analysis by David Reardon and Martin Daly, `Presumed innocent'

The Australian
1/9/98 page 1 news item by Matt Price, `Mother's plea: my son's no serial killer'
1/9/98 page 3 news item by Megan Saunders, `Child sex scandal could force poll'
1/9/98 page 3 news item by Matt Price, `Serial murder prime suspect could face coroner'
1/9/98 page 12 editorial, `Rule of law poor second to politics'
2/9/98 page 3 news item by Natalie O'Brien, `Murder suspect goes into hiding'
2/9/98 page 15 comment by Matt price, `Collusion not above suspicion'
3/9/98 page 12 letters from Malcolm Hall and Jen Fitz, `Unjust to suspect'
5/9/98 page 8 analysis by Matt Price, `Macro pressure on the prime suspect'
5/9/98 page 8 edited text of interview, `I just took her to where she lived, that's it'
7/9/98 page 3 news item by Chil Le Grand, `DPP attacks trial by media'
7/9/98 page 12 editorial, `Murder hunt takes misguided risks'

The Herald Sun
1/9/98 page 25 news item by Mark Russell, `Suspect fails lie detector bid'
2/9/98 page 24 news item by Mark Russell, `Kill suspect feels stress'
5/9/98 page 21 comment by Mark Russell, `Prime suspect'