The Polkinghorne murder trial has drawn a line for media coverage of our courts. It is a line that must not be crossed.
Beyond it lies the possibility of interference with fair trial rights, or a misrepresentation which affects the public’s confidence in our court system. Crossing that line could have led to a mistrial, an offence under the Contempt of Court Act, or a loss of public confidence in our court system.
I think some coverage went close to the line. It was not crossed because, had it done so, miscreant media would have been called to account by the judge.
You’ll note I use the term ‘coverage’ rather that ‘reportage’. That is because I believe some of it went beyond the normal standards of court reporting to embrace observations, interpretations, and opinions. Some went beyond the confines of the court.
The trial of retired Remuera eye surgeon Philip Polkinghorne over the death of his wife, Pauline Hanna, ended last week in his acquittal. It appeared from a note passed to the judge by the jury during their deliberations that there was reasonable doubt within their ranks over whether she had been killed or had taken her own life. That appears to have been reflected in the verdict that was returned a short time later.
I have no intention of revisiting the evidence or the verdict. ‘Reasonable doubt’ is a well-understood concept. As I told a Stuff reporter for a story that led The Press last week: “I think we have seen justice done’.
However, I also told the reporter that I’d read colourful and dramatic accounts of the case that drew on comments and descriptions from the authors of some coverage which weren’t evidence, and pushed at the boundaries of media coverage. And that was because the case was suffused with what I described as “sex, drugs, and rock-and-roll”.
Every trial has its unique characteristics and past cases have had elements that raised them to a level of notoriety that would equal the public’s prurient interest in the Polkinghorne case, and editors’ determination to make the most of it. Then, as now, heightened public attention does not give journalists licence to stray beyond their role in court.
Reporters have a special place in the courtroom. They do not sit in the public gallery where, until 2022, even taking notes with pen and paper was prohibited (using electronic media is still out of bounds without express permission from the judge). Reporters sit at an (anachronistically) designated press bench and their right to do so depends on being subject to oversight by the Broadcasting Standards Authority or the Media Council.
Sitting at the press bench distinguishes them because they have privileges that are not extended to those in the public gallery. Why? Because the most fundamental principle of justice is that it must be seen to be done, and the court recognises the reporter’s vital role in the pursuit of this principle of open justice. That is why court reports are protected by qualified privilege under the Defamation Act.
Reporters are the public’s representatives – observing justice being done and, where necessary, acting as the messenger when the tenets of justice are not met, or a judge exceeds her or his power. It is a very old principle. The English philosopher Jeremy Bentham left no doubt about its purpose: “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.”
It is incumbent upon reporters in court to provide a fair and accurate report of the proceedings. When I reported trials in ages gone by, I always interpreted this as giving the public a precis of what the jury heard and saw. That meant my reports were unembellished by my own observation or opinions because, quite rightly, the jury was not privy to them and would not take them into account in reaching a verdict. My role was to give readers the ability to decide for themselves whether the jury had reached a reasonable verdict. It was a special type of reportage.
While I was learning those court reporting skills as a young reporter on the Auckland Star, The New Zealand Herald Manual of Journalism was published. The chapter on court reporting set out the special requirements in its opening paragraph:
As a rule, the principles and practices of good journalism encourage the reporter to use enterprise and originality in his (sic) work. These admirable qualities have to be curbed in court reporting, where the desire to gather all facts of public interest is subordinate to the administration of justice.
The author, Allan Cole, went on to state that, in court, the reporter works within specific rules which provide little scope for safe deviation from a set pattern dictated largely by court procedure.
The court itself is not interested in the news ingredients of a case; it is concerned only in deciding the issue according to law. The reporter has to sense the public interest in the facts; he (sic) may have to listen to long, often obscure legal argument before the kernel of the story emerges. Nevertheless, as a report of the case, the story should not be taken from its legal peg.
Some coverage of the Polkinghorne case was taken from that legal peg.
There were attempts to unpick the characters of the principal players (one of whom was unable to challenge those characterisations because she is dead). There was quasi sociological and psychological analysis beyond what witnesses offered. There was weaving in and out of court to the point where it was sometimes hard to see where the boundary between the two lay.
New journalism is an outdated term, given that it gained currency in the 1960s and 1970s through the work of people like Tom Wolfe, Hunter S. Thompson and Joan Didion. However, I had a sense that some of the Polkinghorne coverage was an attempt to reflect that genre, using literary techniques and sometimes interposing the writer into the narrative. Given the fact it was coverage of a murder, there were faint hints here and there of Truman Capote’s book In Cold Blood. And, in company with some of those ‘new journalism’ predecessors, there was good writing, too.
As with Capote’s retelling of the murder of a Kansas farm family and the subsequent trial and execution of two men, there may be a time for documentary or book treatment of the Polkinghorne case. I would feel more comfortable with some of the coverage in those formats than as a True Crime story in real time.
Of course, making a meal of a juicy court case predates the giants of new journalism. The Freedom Forum’s Gene Policinski, in a paper looking at media court coverage past and present, recounted a 1907 case in which a millionaire killed a prominent New York architect whom he thought was having an affair with his wife. The coverage made the ensuing trial the first in US history where the jury had to be shielded from it.
[t]he high society murder, with whispers of a lurid back story, drove the press and the public into a true frenzy, with every shred of speculation and embellishment deemed worthy of a report. Thomas Edison’s studio turned out a film version of the Rooftop Murder only a week after the crime, . . . and it hit number one at the box office. The trial, when it finally arrived, was the first in American history in which the jury had to be sequestered, and some 600 potential jurors were interviewed to settle on 12 uncorrupted souls.
We should note that the Polkinghorne jury was not sequestered. I said at the outset that I did not believe coverage had crossed a line. I acknowledge that some disagree and believe a line was crossed. The view that I take is that there was some coverage that made me feel uncomfortable and some that breached my sense of fairness, but nothing that prejudiced the trial or the integrity of the court.
What does continue to concern me is the possibility that – given no journalists were called to account – this coverage will embolden media organisations and their employees. I was disturbed to see a reference to journalists “monetising” a trial.
The next time we have a murder trial with all the ingredients of sex, drugs, rock-and-roll and more, will media feel ready and able to go even further? They may not be so stupid as to risk a mistrial or contempt, but they may feel they have a licence to portray court proceedings in ways that have much in common with what we see on Real Crime or CI, or in a three-ring circus.
To do so would be to make a mockery of the trust that the state, the judiciary, and the public place in news media to play a crucial role in our system of justice. Journalists must stay on the right side of that line.
From Jim Tucker, who has problems posting here (no, I have not defriended my old mate).
Here’s some comment on today’s excellent piece:
I think there is a need to revisit this through research that examines a much wider arena than the Polkinghorne trial.
It – and you – brought the dangers to the fore, risks NZ society has faced for some time from journalists and editors pushing the bounds you so thoroughly outline.
So, lets get someone to check current practice in a sample of outlets, and let’s find out what J schools are teaching.
I have heard of journalism schools that took students to court for a half day and asked them later to write a 2000-word essay on what they saw.
That replaced a common practice in the years I was teaching (to mid-2013) that involved taking a class to district court for a half day, getting them to take notes of every case and returning to the classroom later to choose one they would all be required to write up as a news story. The exercise often benefited from judges taking a break at the end of the attendance session to talk to the students and encourage questions.
Prior to those days, cadets still learning the craft were forbidden to attend court on their own and went along with seasoned court reporters to observe. After three years when they attained the rank of J1 (first year journalist) they could start court reporting. It was a tough job, because every single case was covered.
I would like to hear from the five J schools left today what their approach entails. Do they still teach the things you mention. Perhaps we could hear from a few editors and chief reporters, too, on their approaches (if they have the time to spare).