BEHIND THE SCENES IN A CRIMINAL DRUG TRIAL

Unlike the wall to wall coverage of the Simpson trial, Albany's reporters cover trials without bothering to watch

(this column will appear in the 10-27-05 edition of THE ALBANY (GA.) JOURNAL)

“Counsel, you refer to that document one more time and I’ll hold you in contempt.”

This is the stuff of which trials are made, and veteran television watchers (Court TV and Law & Order) probably know all about testy exchanges between judges and lawyers. What they don’t see are the behind the scenes vignettes which make up the nitty gritty of trial work. Unfortunately, local news coverage is not much help in understanding what is going on in the trials of which I have been a part.

For instance, just last Wednesday, News Center 10 watchers were treated to the following headline on WALB-TV’s website (it’s still there on Saturday!) and in the nightly newscast:

“Judge threatens lawyer with contempt

October 19, 2005

Albany -- Superior Court Judge ... threatened defense attorney James Finkelstein with contempt of court charges this morning, in the fifth day of the **** trial.

Finkelstein, the attorney for ****, attempted to introduce evidence that had been ruled out of bounds by [the judge], in ****’s RICO trial."

I have followed a firm rule that I’m not about to break when it comes to writing about my cases. But in this case, I will bend it a little (I asterisked out my client’s name), by writing about the problematic trial coverage fed to newspaper readers and TV news watchers. Here’s the dirty little secret the Albany Herald, Fox-31, and WALB won’t tell you: the reporters don’t actually attend the trials they cover in their stories. Oh yes, they will show up occasionally for a minute- during a trial which, in the above case, lasted almost two full weeks. But when they do attend, they usually don’t bother trying to find out what’s going on.

One reporter from Channel 10 filmed opening statements the first day of trial, then I never saw her again. A week later, another Channel 10 reporter (a long time acquaintance of mine and a really nice guy) came for one morning of trial testimony, resulting in the above news story with the provocative headline. Had he stuck around for the afternoon festivities, he would have been treated to a far juicier story about the “evidence that had been ruled out of bounds” that would have been highly embarrassing to some of the participants (not me, thankfully). More to the point of responsible journalism, he would also have been able to report that the same evidence which was ruled “out of bounds” in the morning session was admitted that afternoon, passed around to each juror to review, and was a prominent part of the defense’s closing argument. But neither he nor any Channel 10 reporter ever came back again.

In fact, after the trial ended before 5:00 on Friday, when the Herald and Fox 31 were reporting that the trial had ended in a hung jury (10-2 for acquittal on both felony counts), WALB reported that the jury was still deliberating- because they hadn’t bothered to send a reporter to cover the rest of the trial.

The Herald did have a reporter show up for a few days- for opening statements, then again after the trial had been in session a full week. He did a decent job on two front page stories, but it’s difficult if not impossible to write a story about a prominent criminal trial without being on hand for the State’s presentation of its case.

Fox 31 had a reporter there after all of trial testimony had ended, just in time for closing arguments and jury deliberations. But like the Channel 10 reporter, Fox's reporter only wanted on the air quotes, not information about the trial itself. So TV news junkies, beware: you are getting video of the “he said” genre rather than information and context.

No reporter covered any of the pre-trial motion hearings, which were lengthy, hotly contested, and had some highly newsworthy moments.

No reporter sought me out for off the record background information on what the trial was about or what had happened prior to his or her arrival. Ordinarily I won’t allow myself to be quoted on the record until after a trial has concluded. Since this one ended in a mistrial, I haven’t said anything substantive about it, and I won’t until it has been resolved. But I will gladly help out a reporter by providing off the record information that will allow the reporter to be informed and understand the context of what he or she is watching.

Consumers of news deserve more than just a brief “the prosecutor said... the defense attorney said” coverage of a trial. For instance, as far as I know, this was the first criminal RICO trial in the history of Dougherty County, which no news story mentioned. Several witnesses testified about whom I know local readers would have been fascinated: their background, their stories, the deals they struck before they testified.

One of the State’s witnesses who was granted complete immunity for testifying is a federal prisoner who several years ago was the Kingpin responsible for bringing into Dougherty County hundreds if not thousands of pounds of marijuana. The witness literally handed it out to local drug dealers- including one offspring of a prominent local elected public official- in quantities of 10 to 50 pounds each. But you never saw any mention of that in local news coverage, because they weren’t in the courtroom. It was the kind of shocking story which would have been a banner front page headline in the local papers (including this one) had a reporter bothered to be in the courtroom during the testimony.

Oh yeah. The judge- who threatened me with contempt the day before- and I had a good laugh about the WALB story. What viewers and readers don’t know is that the lawyers (and occasionally judges) who go at each other so fiercely in the courtroom are typically very courteous, professional, and occasionally even friendly when the jury is out of the room. After closing arguments, I will usually- if I can do so sincerely- compliment the opposing counsel on his or her presentation of the case. In this instance, in my brief post trial interview with FOX-31 I complimented the lead prosecutor for his excellent closing argument. In my opinion, it would have been 12-0 for not guilty instead of 10-2 if he hadn’t done such a good job in his final argument- an argument to which Georgia law did not permit me to respond.