Following are all the materials Judge James M. Redwine presented at the 2025 Oklahoma State Summer Judicial Conference:
I. INTRODUCTION
A. GOOD MORNING. I AM JIM REDWINE, THIS IS MY WIFE, PEG, AND THESE ARE MY NEPHEWS PHIL AND FRED REDWINE WHO ARE MEMBERS OF THE OKLAHOMA BAR. PHIL AND FRED ARE HERE BECAUSE, I GREW UP WHEN THE ONLY SOCIAL MEDIA WAS SQUARE DANCING, AND 24-HOUR MEDIA COVERAGE OF COURTS WAS A MERE GLEAM IN TED TURNER’S EYE.
THEIR FATHER, MY BROTHER PHIL REDWINE, SR., WAS HONORED TO PRACTICE LAW IN THIS GREAT STATE FOR OVER HALF A CENTURY. HE WAS ALSO THE REASON I WENT TO LAW SCHOOL RATHER THAN SEEKING A PH.D. AT INDIANA UNIVERSITY. WHEN I ASKED PHIL FOR HIS ADVICE ON WHAT I SHOULD DO HE, BEING THE FINE LAWYER HE WAS, ASKED ME, “WHAT DO YOU WANT TO DO AND WHY?” I REPLIED, “I’D LIKE TO ACTUALLY DO SOMETHING POSITIVE.”
PHIL TOLD ME IN 1968, “WELL YOU CAN DO MORE GOOD FOR MORE PEOPLE IN LAW THAN ANYTHING ELSE.” HE WAS RIGHT AND HERE WE ALL ARE.
FIRST, I WOULD LIKE TO THANK JUDGE STUART TATE OF THE 10TH DISTRICT COURT WHO HELPED GUIDE ME TOWARD WHAT OUR OBJECTIVES ARE IN THESE SESSIONS; THANK YOU, JUDGE. ALSO, THANKS TO THE ORGANIZERS OF THIS FINE JUDICIAL EDUCATION CONFERENCE. AND A SPECIAL THANK YOU TO JUDGE THAD BALKMAN WHO WILL SHARE HIS PERSONAL EXPERIENCE WITH A HIGH PROFILE CASE.
ALSO, BECAUSE YOUR CUMULATIVE EXPERIENCE AND WISDOM IS OF GREAT SPECIFIC HANDS-ON VALUE, YOU WILL NOTE THERE ARE DISCUSSION MATERIALS ON EACH TABLE SOLICITING YOUR PERSONAL INPUT. IF YOU WISH TO SHARE YOUR EXPERIENCE WITH YOUR TABLE MATES, PLEASE DO SO. THANK YOU.
OUR TOPICS FOR THE NEXT TWO SESSIONS ARE “CASES WITH HIGH MEDIA INTEREST” AND “SOCIAL MEDIA & JURORS”. AS THE SUBJECTS ARE CLOSELY RELATED, WE WILL DEAL WITH THEM AS SUCH.
B.CAVEAT
BUT FIRST, I WANT TO SUGGEST THE BEST WAY TO DEAL WITH BOTH OF THESE THORNY MATTERS IS TO AVOID THEM, MUCH AS WE OKLAHOMANS TRY TO DO WITH TORNADOES. THE DAMAGE THAT CAN BE DONE TO JUSTICE BY A MEDIA ONSLAUGHT OR BY INVASIVE SOCIAL MEDIA, CAN BEST BE REMEDIED BY TRIAL JUDGES WHO ENCOURAGE NOTORIOUS CASES TO SETTLE QUICKLY AND FAIRLY. FOR, AS WE KNOW, BOTH THE MEDIA AND THE PUBLIC AT LARGE SOON MOVE ON AFTER A CASE IS RESOLVED.
AS THAT GREAT LAWYER, ABRAHAM LINCOLN ADVISES:
“DISCOURAGE LITIGATION. PERSUADE YOUR NEIGHBORS TO COMPROMISE WHENEVER YOU CAN. POINT OUT TO THEM HOW THE NOMINAL WINNER IS OFTEN A REAL LOSER – IN FEES, EXPENSES AND WASTE OF TIME. AS A PEACEMAKER THE LAWYER (OR JUDGE) HAS A SUPERIOR OPPORTUNITY OF BEING A GOOD PERSON.”
AS YOU KNOW ALMOST ALL CASES, 95%, ARE FINALLY DISPOSED WITHOUT TRIAL. THE PARTIES ARE BETTER OFF AND THE PUBLIC IS MORE CONFIDENT WITH A LEGAL SYSTEM IN WHICH THE PARTIES RESOLVE CASES THEMSELVES, AND THE SOONER THE BETTER. JUDGES SHOULD CONCENTRATE THEIR RESOURCES ON HELPING THE PARTIES AND ATTORNEYS TO MEET EARLY AND OFTEN. OF COURSE, SOME VERY FEW CASES MUST GO TO TRIAL. THOSE ARE THE FEW MOST JUDGES ARE KNOWN FOR. SO, LET US DELVE INTO HOW WE MIGHT DEAL WITH THE MEDIA AND SOCIAL MEDIA IN THOSE FEW INTRACTABLE MATTERS THAT CANNOT BE SETTLED.
MOST TRIAL JUDGES MUST DEVOTE OVER 95% OF THEIR COURT’S EFFORTS AND ASSETS TO CASES NOTED ONLY BY THE PARTIES. SHOULD A CASE GO TO A JURY TRIAL, THE WHOLE TRIAL WILL LIKELY LAST A FEW DAYS AND GARNER LITTLE MEDIA COVERAGE. FURTHER, SOCIAL MEDIA IS NOT KNOWN TO GET EXORCISED OVER CASES THAT ARE NOT SALACIOUS OR DO NOT INVOLVE ALLEGED MISDEEDS BY POLITICIANS.
SHOULD WE TAKE SPECIAL CARE FOR THOSE RARE CASES THAT COME TO OUR BENCHES IN A HAIL OF MEDIA AND THAT ARE DISPOSED BY JURORS WHO HAVE ALL THE TEMPTATIONS OF SOCIAL MEDIA? YES! HOWEVER, WE CAN BEST PREPARE FOR THOSE ANOMALOUS MATTERS BY FOLLOWING SOUND AND FAIR PROCEDURES IN ALL OUR CASES.
FIRST, OUR COURTS MUST BE OPEN. THAT MEANS ACCESSIBLE AND WELCOMING. JUDGES AND THOSE UNDER THEIR CONTROL MUST TRULY BELIEVE IN BOTH THE FIRST AND SIXTH AMENDMENTS AND STRIVE TO SUPPORT THEM EVERY DAY, NOT JUST FOR HIGH PROFILE MATTERS OR JURY TRIALS.
TRIAL JUDGES CAN IMPLEMENT PROCEDURES THAT FROM THE DATE A CASE IS FILED UNTIL IT IS DISPOSED, THE PARTIES AND THEIR ATTORNEYS FEEL COMFORTABLE SEEKING COURT INFORMATION SUCH AS SCHEDULING AND CONFERING ON THE RECORD WITH THE JUDGE AS SOON AS THE ISSUES ARE CLOSED. ENCOURAGING THE PARTIES TO CONFER AND PROVIDING FACILITIES SUCH AS A CONFERENCE ROOM AT THE COURT TO DO SO, WILL MOVE THE DATE OF WHAT ALMOST CERTAINLY WILL BE A NON-TRIAL DISPOSITION CLOSER TO THE DATE THE CASE WAS FIRST INITIATED.
THE JUDGE, SUBJECT TO ETHICAL RESTRICTIONS, SHOULD BE READILY AVAILABLE FOR PRE-TRIAL, ON THE RECORD CONFERENCES. THE COURT SHOULD HAVE A MEDIA CONTACT PERSON WHO ALSO SERVES TO COORDINATE THE JUDGE’S AVAILABILITY. THE JUDGE SHOULD NOT MEDIATE THE CASE, THERE ARE PROCEDURES FOR THAT SUCH AS THE DISPUTE REOLUTION ACT, 12 O.S. 1801, ET. SEQ. HOWEVER, THE TRIAL JUDGE SHOULD BE AVAILABLE TO CONSIDER SETTLEMENT PROPOSALS FROM THE PARTIES AND COVERAGE PROPOSALS FROM THE NEWS MEDIA.
THESE PRE-TRIAL HEARINGS WILL BE NECESSARY ANY WAY TO PREPARE FOR A TRIAL, IF NEEDED, SO JUDGES SHOULD ENCOURAGE THEM TO BE EARLY AND OFTEN.
AND, IF YOU DO NOT MIND, LET ME SUGGEST THE FOLLOWING PERSONAL AND POLITICAL ADVANTAGE TO A TRIAL JUDGE. IN FACT, MY STAFF AND I DEVELOPED AND PUBLISHED OUR COURT MISSION STATEMENT BASED MAINLY ON HELPING CITIZENS OF OUR HOME COUNTY TO GET ALONG.
I SERVED AS A PARTISAN ELECTED JUDGE IN INDIANA FOR 40 YEARS; I FINISHED MY LAST 6-YEAR TERM AS A CIRCUIT (DISTRICT) COURT JUDGE IN 2018. I INSTITUTED MY SYSTEM OF EARLY SETTLEMENT SOON AFTER I ADOPTED MY COURT’S MISSION STATEMENT. I RAN UNOPPOSED IN BOTH MY PRIMARY AND GENERAL ELECTIONS FOR ALMOST 40 YEARS IN A SMALL COUNTY OF 25,000 RESIDENTS. APPARENTLY, THE BAR AND THE PUBLIC AND BOTH POLITICAL PARTIES APPROVED.
“THE MISSION OF THE POSEY CIRCUIT COURT IS TO HELP CREATE A COMMUNITY IN WHICH INDIVIDUALS, FAMILIES, AND ENTITIES ARE ENCOURAGED AND FACILITATED TO RESOLVE LEGAL PROBLEMS AMONG THEMSELVES AND TO PROVIDE A FORUM IN WHICH LEGAL ISSUES THAT ARE NOT PRIVATELY DISPOSED OF ARE FAIRLY AND EFFICIENTLY DECIDED ACCORDING TO APPLICABLE LAW IN AN ATMOSPHERE OF MUTUAL RESPECT AND POSITIVE INNOVATION.”
AND, YES, I DID HAVE A FEW HIGH PROFILE CASES AND OVER 100 JURY TRIALS AS JUDGE, BUT I ALSO HELPED DISPOSE OF THOUSANDS OF DISPUTES WITHOUT TRIAL AND I BELIEVE MY STAFF AND I HELPED MAKE OUR COUNTY A BETTER PLACE TO LIVE BY REDUCING ILL WILL. IN OTHER WORDS, I BELIEVE WE ACCOMPLISHED WHAT MY BROTHER, PHIL, SAID LAW IS FOR.
OKAY, WE HAVE DEVELOPED AND SET IN PLACE WORKABLE AND FAIR PROCEDURES FOR ALL OF OUR CASES, WHAT ABOUT ANY SPECIFIC GUIDELINES FOR THE OCCASIONAL SPECIAL NEEDS CASES INVOLVING HIGH MEDIA INTEREST AND JURY TRIALS WITH THEIR INEVITABLE SOCIAL MEDIA ISSUES?
II. OBJECTIVE DEALING WITH CASES WITH HIGH MEDIA INTEREST
“AFTER THIS SESSION JUDGES SHOULD BE MORE CONFIDENT IN HANDLING THE CASES IN WHICH THE MEDIA, AND THE PUBLIC, HAVE A HEIGHTENED INTEREST; AND JUDGES SHOULD BE BETTER ABLE TO DO SO WITHIN OUR ETHICAL REQUIREMENTS AS DEFINED BY THE OKLAHOMA SUPREME COURT, OUR OKLAHOMA ETHICS COMMISSION AND BOTH THE U.S. AND OKLAHOMA CONSTITUTIONS.”
III. JUDGES AND THE MEDIA
IN AID OF THESE OBJECTIVES, I RECOMMEND THE FINE ARTICLE ON OKLAHOMA JUDGES USE OF SOCIAL MEDIA BY JUDGE THAD BALKMAN OF THE 21ST JUDICIAL DISTRICT. OKLAHOMA BAR JOURNAL, AUGUST 2023. JUDGE BALKMAN ADVISES AT PAGE 27:
“…[J]UDGES MUST EXERCISE GREAT CAUTION WHEN USING SOCIAL MEDIA. A JUDGE’S DUTY TO MAINTAIN IMPARTIALITY AND AVOID ANY APPEARANCE OF BIAS MEANS THAT JUDGES MUST BE SELECTIVE IN CHOOSING THEIR FACEBOOK FRIENDS AND OTHER SOCIAL MEDIA CONTACTS, AND JUDGES SHOULD NOT PUBLICLY EXPRESS THEIR OPINIONS ON CONTROVERSIAL ISSUES.”
JUDGE BALKMAN WILL SPEAK WITH US A LITTLE LATER.
FOR GENERAL BACKGROUND ON OUR TOPICS THESE NEXT TWO HOURS, I RECOMMEND THE ARTICLE BY JORDAN GRUCE, SOCIAL MEDIA AND THE COURT. EXPLORING IMPACTS, CHALLENGES, AND LEGAL CONSIDERATIONS IN THE DIGITAL AGE (2024), INDIANA STATE UNIVERSITY HONORS COLLEGE.
GRUCE NOTES THE RAPID AND ONGOING CHANGE IN DIGITAL MEDIA AND POSITS:
“THE UNITED STATES HAS HAD A LONG-STANDING TRADITION OF TRIALS BEING PRESUMPTIVELY OPEN TO THE PUBLIC AND THE MEDIA. THIS WAS ESTABLISHED UNDER THE ASSUMPTION THE PUBLIC WOULD OVERSEE THE ADMINISTRATION OF JUSTICE AND HOLD COURTS ACCOUNTABLE FOR THE FAIR TREATMENT OF CITIZENS AND THE APPLICATION OF THE LAW.”
UNFORESEEN, HOWEVER WAS THAT NOW PEOPLE CAN CREATE ANY “FACTS” THEY LIKE AND POST THEM ANONYMOUSLY TO THE WORLD INSTANTLY. THE GENIE IS NOW OUT OF THE BOTTLE AND JUDGES MUST REMAIN AWARE OF THE FRENETIC PACE OF CHANGE IN DIGITAL TECHNOLOGY SUCH AS WIKIPEDIA AND ARTIFICIAL INTELLIGENCE. FOR AN EXAMPLE, I HAVE INCLUDED IN YOUR HANDOUTS AN ARTICLE CREATED COMPLETELY WITHOUT MY INPUT VIA ARTIFICIAL INTELLIGENCE. IT IS MY HOPE THAT THE REST OF THE MATERIAL, WHICH I DID CREATE, IS OF AT LEAST, EQUAL UTILITY FOR THE ATTENDEES HERE TODAY.
NOT THAT LONG AGO, OKLAHOMA JUDGES WERE CONCERNED MAINLY WITH COURT COVERAGE FROM THE TULSA WORLD, THE DAILY OKLAHOMAN AND THEIR LOCAL NEWSPAPERS, SAY THE PAWHUSKA JOURNAL-CAPITAL; TWENTY-FOUR/SEVEN CNN TYPE MEDIA BLITZES WERE AS RARE AS CELL PHONES. BUT TODAY THE JUDICIARY HAS TO ENSURE JUSTICE IN THE CASE BEFORE THEM, AND IF IT IS A HIGH-PROFILE MATTER, THE TRIAL JUDGE HAS TO CONSIDER JUSTICE FOR THE PARTIES AND THE PUBLIC’S RIGHT TO KNOW WHAT IS GOING ON IN THEIR LEGAL SYSTEM. WE JUDGES MUST BE AWARE THAT THE PUBLIC DOES HAVE A RIGHT TO KNOW HOW THEIR LEGAL SYSTEM IS FUNCTIONING AND IF IT IS FAIR, IMPARTIAL, UNBIASED AND EFFICIENT. AND, OF COURSE, IT IS OUR DUTY TO ASSURE THESE VITALLY IMPORTANT MATTERS IN THIS RAPIDLY EVOLVING DIGITAL AGE.
A. CANON 1, RULE 1.2
THE ABA’S MODEL CODE OF JUDICIAL CONDUCT DEMANDS:
“A JUDGE SHALL ACT AT ALL TIMES IN A MANNER THAT PROMOTES PUBLIC CONFIDENCE IN THE INDEPENDENCE, INTEGRITY AND IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY.”
UNNECESSARY SECRECY AND AN AURA OF ARCANE MYSTICISM ABOUT COURT PROCEEDINGS IS EVERY BIT AS DAMAGING TO PUBLIC CONFIDENCE IN OUR LEGAL SYSTEM AS IS UNGUARDED DISCLOSURE OR OFF-HAND COMMENTS OF WHAT SHOULD BE CONFIDENTIAL TRIAL MATTERS. JUDGES DO HAVE AN AFFIRMATIVE DUTY TO HELP EDUCATE THE PUBLIC ABOUT LEGAL PROCEEDINGS WHEN IT CAN BE DONE WITHOUT HARM TO THE PARTIES INVOLVED.
B. RULE 2.10
- “A JUDGE (OR ANYONE SUBJECT TO THE JUDGE’S CONTROL) SHALL NOT MAKE ANY PUBLIC STATEMENT THAT MIGHT REASONABLY BE EXPECTED TO AFFECT THE OUTCOME OR IMPAIR THE FAIRNESS OF A MATTER PENDING OR IMPENDING, IN ANY COURT, OR MAKE ANY NONPUBLIC STATEMENT THAT MIGHT SUBSTANTIALLY INTERFERE WITH A FAIR TRIAL OR HEARING.”
- “NOTWITHSTANDING THE RESTRICTIONS IN PARAGRAPH 1, “A JUDGE MAY MAKE PUBLIC STATEMENTS IN THE COURSE OF OFFICIAL DUTIES, (AND) MAY EXPLAIN COURT PROCEDURES.”
IN OTHER WORDS: JUDGES MUST NOT MAKE UNETHICAL COMMENTS OR ENGAGE IN UNETHICAL BEHAVIOR, JUDGES MUST NOT SAY OR DO ANYTHING TO PREJUDICE A CASE OR TO CAUSE A LOSS OF PUBLIC CONFIDENCE IN THE FAIRNESS AND IMPARTIALITY OF THE SYSTEM OF JUSTICE; HOWEVER, A JUDGE SHOULD SAY AND DO THINGS THAT PROMOTE PUBLIC CONFIDENCE IN THE INTEGRITY OF THE LEGAL SYSTEM.
IV. INDIVIDUAL RIGHTS VS. A FREE PRESS
A. OKLAHOMA’S CONSTITUTION
- II-22
“OKLAHOMA’S “FIRST AMENDMENT” IS BROADER THAN THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION AND AFFORDS ALL AND MORE OF THE FREEDOMS THE U.S. CONSTITUTION GUARANTEES.”
FOR OUR PURPOSES, THE MOST SALIENT FEATURES ARE: FREEDOM TO SPEAK, WRITE AND PUBLISH ONE’S THOUGHTS AND BELIEFS AND FREEDOM OF THE PRESS THAT AFFORDS THE PUBLIC THE RIGHT TO KNOW, ESPECIALLY ABOUT THEIR GOVERNMENT, INCLUDING THEIR LEGAL SYSTEM.
B. OKLAHOMA’S CONSTITUTION
- II-1 AND II-2; II-6 THROUGH II-10; AND II-17 THROUGH II-21
OKLAHOMA’S CONSTITUTION MIRRORS AMERICA’S SIXTH AMENDMENT AND GUARANTEES THE RIGHT TO AN ATTORNEY, A SPEEDY AND PUBLIC TRIAL WHERE A CRIME IS ALLEGED TO HAVE OCCURRED (IN A CRIMINAL CASE), AN IMPARTIAL JURY, THE RIGHT TO BE INFORMED OF ANY CHARGES, THE RIGHT TO CONFRONT WITNESSES AND, IN GENERAL, THE RIGHT TO DUE PROCESS INCLUDING A LEGAL PRESUMPTION OF INNOCENCE AND COMPULSORY PROCESS TO HAVE WITNESSES APPEAR.
JUDGES ROUTINELY COMPLY WITH THE U.S. AND OKLAHOMA CONSTITUTIONS IN THEIR ALMOST DAILY DOCKETS.
OKLAHOMA, ALSO, CONSTITUTIONALLY GUARANTEES THE RIGHTS OF VICTIMS IN SECTION II-34:
“… A VICTIM OF A CRIME SHALL HAVE THE … RIGHT, … TO BE TREATED WITH FAIRNESS AND RESPECT FOR THE VICTIM’S SAFETY, DIGNITY AND PRIVACY; ….”
- II-6
“THE COURTS OF JUSTICE OF THE STATE SHALL BE OPEN TO EVERY PERSON …”
- II-22
LIBERTY OF SPEECH AND PRESS
“… AND NO LAW SHALL BE PASSED TO RESTRAIN OR ABRIDGE THE LIBERTY OF SPEECH OR OF THE PRESS.”
V. BALANCING DUTY
MOST JUDGES SELDOM HAVE TO DEAL WITH A HIGH-PROFILE CASE. USUALLY, WE MAKE IT THROUGH OUR JUDICIAL CAREERS WITH ONLY A FEW CASES THAT REQUIRE THE JUDGE TO CONSIDER A CHANGE OF VENUE, GAG ORDERS, INDIVIDUAL VOIR DIRE, JURY SEQUESTRATION, INSTRUCTIONS OR HANDOUTS OF MEDIA GUIDELINES, SEATING ALLOTMENTS, CLOSED TRIALS, WITH CAREFUL RESTRICTIONS AND CONSENT OF THE ACCUSED, OR EVEN SUB JUDICE FINDINGS OF CONTEMPT AGAINST MEMBERS OF THE MEDIA.
“CHANGE OF VENUE, GAG ORDERS, INDIVIDUAL VOIR DIRE
JURY SEQUESTRATION, INSTRUCTION AND MEDIA HANDOUTS, SEATING ALLOTMENTS
RESTRICTED ACCESS TRIALS, SUB JUDICE, AMICUS”
“MOST IMPORTANTLY, A TRIAL JUDGE CAN AND SHOULD DEMAND INPUT FROM THE PARTIES, THROUGH THEIR ATTORNEYS, ON SUGGESTIONS FOR DEALING WITH THE MEDIA, POTENTIAL JUROR PREJUDICE AND POSSIBLE JURY INSTRUCTIONS CONCERNING MEDIA INFLUENCE AND CONTROL OF JURY SOCIAL MEDIA GUIDELINES. AS IN ANY CASE, THE TRIAL JUDGE MAY AND SHOULD ORDER THE PARTIES TO FILE CONCISE PRE-TRIAL BRIEFS ON EACH OF THESE ISSUES.”
“THEN THE JUDGE SHOULD HOLD ON-THE-RECORD HEARINGS ON THESE MATTERS AND WORK TOWARD AGREEMENT FROM THE PARTIES AS TO HOW BEST TO APPROACH EACH ISSUE IN THE SPECIFIC CASE AT BAR.”
WITH CONSENT OF THE PARTIES, THE JUDGE MAY ALSO SEEK AMICUS ADVICE ON MEDIA ISSUES FROM THE MEDIA, IN WRITING, WITH SERVICE ON ALL PARTIES.
WHILE A FEW OF OKLAHOMA’S 77 COUNTIES AND 26 JUDICIAL DISTRICTS HAVE LARGE POPULATIONS, MOST OKLAHOMA JUDGES PRESIDE OVER LARGE GEOGRAPHICAL AREAS WITH MORE SPARSE POPULATIONS. IN OTHER WORDS, MOST OF OKLAHOMA’S JUDGES PRESIDE IN SMALLER POPULATIONS WITH INFREQUENT OPPORTUNITIES TO MANAGE HIGH PROFILE CASES. HOWEVER, IT COULD HAPPEN TO ANY JUDGE, SO BEING AWARE OF ETHICAL AND EFFICIENT MODES OF PROCESSING MEDIA FRENZY CASES IS PRUDENT. ALSO, SOME OKLAHOMA JUDGES, SUCH AS IN OKLAHOMA OR TULSA COUNTY, DO HAVE MORE EXPERIENCES WITH AN AROUSED MEDIA. EVEN THE NATIONAL MEDIA MAY TAKE AN AVID INTEREST IN SOME CASES. EACH OF THE PARTIES IN SUCH CASES PLUS THE GENERAL PUBLIC MUST BE CONSIDERED BY THE TRIAL JUDGE.
VI. WHERE WE HAVE BEEN
A. JOHN PETER ZENGER
COLONIAL AMERICANS WERE ASSIDUOUSLY ANTI-MONARCHIAL GOVERNMENT AND STRONGLY SUPPORTED FREEDOM OF SPEECH AND FREE PRESS. THAT IS WHY THE FIRST AMENDMENT TO THE U.S. CONSTITUTION GUARANTEES BOTH.
THE 1734 JURY TRIAL OF NEW YORK PRINTER JOHN PETER ZENGER SET THE TONE FOR AMERICA’S ATTITUDE TOWARD THE LEGAL SYSTEM AND FREE SPEECH. ZENGER RAN ONE OF ONLY TWO TRULY FUNCTIONING PRINT SHOPS AT THAT TIME. HE PUBLICLY CRITICIZED THE APPOINTED BRITISH COLONIAL GOVERNOR WILLIAM COSBY. COSBY CHARGED ZENGER WITH SEDITIOUS LIBEL AND PUT HIM IN JAIL.
AT ZENGER’S TRIAL, HIS ATTORNEY, ANDREW HAMILTON, ARGUED TO THE CITIZEN JURORS THAT WHAT ZENGER PRINTED WAS TRUE AND, THEREFORE, SHOULD NOT BE A CRIME. THE JURY AGREED AND NULLIFIED THE CHARGE. THE ZENGER CASE AND THE 1789 U.S. CONSTITUTION’S BILL OF RIGHTS SET THE TONE FOR AN OPEN LEGAL SYSTEM.
B. SOCRATES
OF COURSE, THE FOUNDING FATHERS RELIED GREATLY ON THE WISDOM OF THE ANCIENT GREEKS, SUCH AS PLATO, IN FEARING GOVERNMENTS THAT FEARED TRUTH. AS SOCRATES TAUGHT, “THE UNEXAMINED LIFE IS NOT WORTH LIVING.” SOCRATES ADMONISHED HIS ATHENIAN JUDGES TO DO JUSTICE, NOT MAKE A PRESENT OF IT.
SOCRATES WAS CONDEMNED TO DEATH BY THE ATHENIAN SENATE FOR EXERCISING HIS FREEDOM TO SPEAK. THOSE PHILOSOPHERS OF THE ENLIGHTENMENT, SUCH AS JOHN LOCKE, MONTESQUIEU AND ROUSSEAU, CARRIED ON THE SOCRATIC TRADITION OF COURAGEOUS SPEECH AND OPEN GOVERNMENT. OF COURSE, THERE WAS NO ELECTRONIC MEDIA FROM 500 B.C.E. UNTIL THE TELEGRAPH WAS INVENTED IN THE 1830’S. SO, ONLY PEN AND PAPER JOURNALISTS COVERED TRIALS AND ONLY PRINT MEDIA INFORMED THE PUBLIC. JUDGES HAD LITTLE PROBLEM PRESIDING OVER EVEN THE MOST SENSATIONAL CASES.
C. CHARLES LINDBERGH
HOWEVER, AS WE LAWYERS SAY, “HARD CASES, SUCH AS THAT OF SOCRATES, MAKE BAD LAW”. AND ONE OF THE HARDEST MEDIA FRENZY CASES, THE LINDBERGH TRIAL, LED THE AMERICAN BAR ASSOCIATION TO ENDORSE TRULY BAD LAW FOR HIGH PROFILE CASES. ABA CANON 35 WAS ADOPTED IN 1937 AND VIRTUALLY ABROGATED THE FIRST AMENDMENT IN AN ATTEMPT TO PROTECT THE SIXTH. WHY?
IN 2025 IT IS DIFFICULT TO RECONSTITUTE THE AURA AROUND “AMERICA’S LONE EAGLE”, “LUCKY LINDY”. CHARLES LINDBERGH WAS A HANDSOME, WELL-SPOKEN SON OF AMERICA’S ANGER AT GERMANY OVER WWI AND ITS PRIDE IN AMERICA’S BURGEONING TECHNOLOGICAL ACCOMPLISHMENTS AND INVENTIVENESS. LINDGERGH (1902-1974) BECAME AMERICA’S SHINING EXAMPLE OF PATRIOTISM AND PROGRESS. HE WAS THE SINGULAR HERO FOR THE WHOLE COUNTRY. HE MADE THE FIRST SOLO FLIGHT FROM THE U.S.A. TO EUROPE AND, AS AN OFFICER IN THE U.S. ARMY AIR CORPS RESERVES, HE RECEIVED THE DISTINGUISHED FLYING CROSS AND THE MEDAL OF HONOR DIRECTLY FROM PRESIDENT CALVIN COOLIDGE IN 1927.
WHEN LINDBERGH’S SON WAS KIDNAPPED AND MURDERED IN 1932, AMERICA WAS TOTALLY TRAUMATIZED AND THE WHOLE COUNTRY’S MEDIA WAS IN A “BLOOD IN THE WATER FRENZY”. AND, WHETHER INNOCENT OR TRULY GUILTY, ILLEGAL GERMAN IMMIGRANT RICHARD BRUNO HAUPTMANN WHO WAS IN THE GERMAN ARMY IN 1917-1918, PROVIDED THE PRESS AND THE PUBLIC WITH LEGAL FODDER FOR REVENGE.
FURTHER, THE TRIAL TOOK PLACE IN THE SMALL NEW JERSEY COMMUNITY OF FLEMINGTON WITH LITTLE FACILITIES FOR THE MASSIVE MEDIA ONSLAUGHT. TRIAL JUDGE THOMAS WHITAKER WAS OVERWHELMED. ALSO, NOT ONLY WAS A TELEGRAPH HOOKUP CONNECTED IN THE COURTROOM BUT NEWSREEL CAMERAS WERE ALLOWED. MEMBERS OF THE MEDIA SURREPTITIOUSLY RECORDED WITNESS TESTIMONY AND EVEN ATTEMPTED TO CONTACT JURORS DURING THE TRIAL. A HARD CASE INDEED! THE ABA WAS SO CONCERNED WITH THE GATHERING POWER AND INVASIVENESS OF THE HOT NEW ELECTRONIC MEDIA IT ADOPTED CANON 35 IN 1937 THAT VIRTUALLY SEALED OFF THE LEGAL SYSTEM FROM THE MEDIA. IT WAS NOT UNTIL 1982 THAT THE ABA REPEALED CANON 35, ALTHOUGH IT WAS AMENDED IN 1952, PROBABLY DUE TO THE LEGAL PROFESSION’S CONCERN WITH THE RED SCARE AND MC CARTHYISM THAT WAS SHUTTING DOWN MANY OF THE RIGHTS GUARANTEED BY THE FIRST AMENDMENT.
IN 1953 OKLAHOMA’S SUPREME COURT, TO ITS CREDIT, ALLOWED THE TRIAL JUDGE TO ADMIT T.V. CAMERAS IN THE COURTROOM FOR PORTIONS OF THE MURDER TRIAL OF BILLY EUGENE MANLEY. THIS WAS THE FIRST TIME SUCH ALLOWANCE WAS MADE IN THE UNITED STATES. BUT THE OKLAHOMA SUPREME COURT, PROPERLY, PUT TOTAL CONTROL IN THE HANDS OF THE TRIAL JUDGE WITH CAUTIONARY GUIDANCE.
VII. SPECIFIC SUGGESTIONS FOR TRIAL JUDGES
HANDLING A HIGH-PROFILE CASE
NEITHER THE OVERLY TACITURN OR THE LOQUATIOUS APPROACH IS RECOMMENDED. JUDGES WHO HAVE THE LUXURY OF A PUBLIC AFFAIRS SPOKESPERSON SHOULD MAKE SURE THAT PR PERSON IS WELL VERSED IN WHAT IS BOTH PROPER AND PROHIBITED UNDER THE ETHICAL RESTRAINTS ON THE JUDGE AND THOSE UNDER THE JUDGE’S CONTROL.
THEN ALL MEDIA CONTACTS SHOULD GO THROUGH THE SPOKESPERSON WHOSE NAME, POSITION AND CONTACT INFORMATION SHOULD BE READILY AVAILABLE TO THE MEDIA AND THE PUBLIC.
SHOULD YOU HAVE A LIMITED STAFF YOU MIGHT APPOINT A TRUSTED BAILIFF, COURT REPORTER OR CLERK AS THE COURT’S MEDIA CONTACT PERSON AND MAKE SURE ALL COURT-RELATED PUBLIC INFORMATION IS CHANNELED THROUGH THAT ONE PERSON SUBJECT TO YOUR PERSONAL GUIDANCE.
THE MEDIA IS NOT AN ENEMY OF THE LEGAL SYSTEM AND JUDGES SHOULD NOT TREAT THEM AS SUCH. JUDGES HAVE IMPORTANT DUTIES AND SO DO REPORTERS. REPORTERS OFTEN ARE POORLY PAID, UNDER STRICT DEADLINES AND MAY NOT BE VERSED IN THE ELEMENTS OF TRIALS. A ONE-PAGE MEDIA HANDOUT WITH CLEAR GUIDANCE AS TO WHAT IS OR IS NOT PERMISSABLE ALONG WITH BRIEF EXPLANATIONS OF LEGAL TERMS AND PROCEDURES CAN ENHANCE THE COURT’S STANDING WITH THE REPORTERS. SUCH AN INFORMATION SHEET SHOULD SET OUT THE CASE SCHEDULE AND, IF A WITNESS SHOULD NOT BE PUBLICLY NAMED, SAY A CHILD OR AN ALLEGED SEXUAL ASSAULT VICTIM, OR MEMBERS OF THE JURY, EXPLAIN WHY.
AS FOR THE JUDGE’S PERSONAL CONTACT WITH THE MEDIA, THE CURT RESPONSE, “NO COMMENT!”, IS NOT ONLY RUDE AND COUNTERPRODUCTIVE, IT IS UNNECESSARY. A JUDGE CAN POLITELY EXPLAIN HE OR SHE IS NOT ALLOWED BY LAW TO TALK ABOUT PENDING CASES AND THE REPORTER SHOULD CONTACT THE COURT’S PR PERSON. REPORTERS ARE PEOPLE AND MOST PEOPLE RESPECT JUDGES AND THE LEGAL SYSTEM.
“PRUDENCE, THE FIRST AMENDMENT AND COMMON COURTESY DICTATE THAT JUDGES REMEMBER TO TREAT THE MEDIA THE WAY THEY THEMSELVES WOULD LIKE TO BE TREATED.”
AS SET OUT BEFORE, THERE ARE SEVERAL METHODS TO HELP ENSURE A FAIR TRIAL THAT DO NOT VIOLATE EITHER COURT RULES OR THE FIRST OR SIXTH AMENDMENT. AND WHEN IT COMES TO CAMERAS OR RECORDERS IN THE COURTROOM THE OKLAHOMA SUPREME COURT HAS MADE IT CLEAR NO SUCH ACCESS IS ALLOWED EXCEPT BY ADVANCE PERMISSION OF THE JUDGE. IF ANY TYPE OF ELECTRONIC DEVICE IS TO BE USED BY THE MEDIA OR THE PUBLIC, THE TRIAL JUDGE MUST SET THE RULES FOR SUCH USE PURSUANT TO OKLAHOMA SUPREME COURT RULE 28 AND ANY OTHER SPECIFIC DISTRICT COURT RULES SUCH AS SET FORTH IN OKL. ST. ANN. T. RULE 39.1.
OKLAHOMA’S POSITION ON CAMERAS AND RECORDERS IN TRIALS IS A REASONABLE, ALBEIT NOW A MINORITY VIEW. FORTY-SEVEN STATES ADMIT ELECTRONIC MEDIA INTO TRIALS WITH PRIOR PERMISSION AND AGREEMENTS TO ABIDE BY THE TRIAL JUDGE’S CONTROL. THE TREND FROM ABA CANON 35 IN 1937 TO 2025 IS STRONGLY ON THE SIDE OF MORE ACCESS BY THE MEDIA AND THE PUBLIC.
STATISTICS ESTABLISH THAT AMERICANS’ RIGHTS UNDER THE SIXTH AMENDMENT DO NOT SUFFER WHEN JUDGES JUDICIOUSLY ENFORCE THE FIRST.
VIII. A WOMAN IN A CAGE
AS MENTIONED EARLIER, FOR 40 YEARS I SERVED AS A TRIAL JUDGE IN A RURAL INDIANA COUNTY OF 25,000 RESIDENTS. POSEY COUNTY IS BORDERED ON THE SOUTH BY THE OHIO RIVER, ON THE WEST BY THE WABASH RIVER, ON THE NORTH BY THOUSANDS OF ACRES OF FARMLAND ACROSS ALMOST ONE HUNDRED UNCLUTTERED MILES TO THE LARGE CITY OF INDIANAPOLIS AND ON THE EAST BY EVANSVILLE WITH ITS ALMOST 200,000 RESIDENTS.
PEG AND I LIVED IN THE COUNTRY WHERE OUR FEW NEIGHBORS BROUGHT US THE WORLD’S BEST SWEET CORN AND OUR RARE VISTORS WERE SHERIFF’S DEPUTIES BRINGING US WARRANT APPLICATIONS. OUR LIVES DEFINED BUCOLIA. I WROTE A COLUMN FOR OUR TWO LOCAL NEWSPAPERS WHOSE OWNERS AND EDITORS WERE FRIENDS OF MINE. WE HAD NO TELEVISION OR RADIO STATIONS IN OUR COUNTY.
HOWEVER, JUST ACROSS THE COUNTY LINE TO THE EAST, EVANSVILLE HAD NEWSPAPERS AND SEVERAL ELECTRONIC MEDIA OUTLETS. FORTUNATELY, THEY TOOK LITTLE INTEREST IN MY COUNTY OR MY COURT. THEN ABOUT 2:00 AM ONE MORNING IN SEPTEMBER OF 2014 IT SEEMED EVERY MEDIA OUTLET WAS HOT ON THE HEELS OF THE COUNTY SHERIFF’S DEPUTIES WHO AWAKENED ME FOR A SEARCH WARRANT.
ALTHOUGH I HAD PRACTICED LAW FOR 10 YEARS AND TRIED 60 JURY TRIALS, INCLUDING A POLITICAL CORRUPTION CASE AND SEVERAL MURDERS, AND I HAD BEEN A TRIAL JUDGE FOR 35 YEARS AVERAGING ABOUT 4 JURY TRIALS PER YEAR, I WAS SUDDENLY CONFRONTED WITH A CASE OF NATIONAL INTEREST. IT HAD EVERYTHING: SEX, TORTURE, STUPIDITY, FEAR AND GENERAL DISTASTEFULNESS.
I STILL REMEMBER READING THE SEARCH AND ARREST WARRANTS FOR A LOCALLY KNOWN METH USER, HIS MIDDLE-AGED METH USING GIRLFRIEND AND THEIR DOUBLE-WIDE OUT IN THE WOODS. ANOTHER METH USER’S EX-HUSBAND HAD GONE TO VISIT HIS EX-WIFE WHERE SHE WAS SUPPOSED TO BE VISITING THEIR EX-FRIENDS. WHEN HE WENT INTO THE HOUSE, HE SAW HIS EX-WIFE WITH A LARGE SPIKED DOG COLLAR AROUND HER NECK AND CHAINS ON HER FEET. THE THREE PEOPLE ALREADY AT THE HOME WERE HIGH ON METH AND THE WITNESS’ EX-WIFE WAS NAKED AND FILTHY.
THE EX-HUSBAND PROMISED THE COUPLE THAT IF THEY WOULD ALLOW HIM TO TAKE HIS EX-WIFE WITH HIM, HE WOULD NOT TELL LAW ENFORCEMENT ABOUT THE CHAINED WOMAN AND THE LARGE CAGE THEY KEPT HER LOCKED IN. THE EVENTUAL DEFENDANT TOLD THE EX-HUSBAND BOTH THE RAPIST AND THE WOMAN HAD BEEN HAVING SEX WITH THE VICTIM FOR TWO MONTHS HOPING SHE WOULD GET PREGNANT BECAUSE THE OTHER WOMAN WAS TOO OLD TO HAVE CHILDREN.
BECAUSE ONE OF THE ARRESTING DEPUTIES PLANNED TO RUN FOR SHERIFF IN NOVEMBER OF 2014, HE CONTACTED SEVERAL MEDIA PEOPLE ABOUT THE CASE AND COVERAGE EXPLODED WITH THE SENSATIONAL DETAILS. THE EVANSVILLE COURIER & PRESS, THE INDIANAPOLIS STAR AND EVEN THE LOS ANGELES TIMES AIRED THE ALLEGATIONS AND NAMED EVERYONE INVOLVED. THE PICTURES OF THE DEFENDANTS WERE RELEASED AND PUBLISHED AS WERE PHOTGRAPHS OF THE CAGE THANKS TO THE INVESTIGANTING OFFICERS WHO TOOK THEM.
FOX, CBS AND EVEN THE SEATTLE TIMES TOOK UP THE STORY. A CHANGE OF VENUE WAS MERITLESS AS THERE WAS NO PART OF SOUTHERN INDIANA THAT HAD NOT SEEN OR HEARD ABOUT ALL THE VILE BEHAVIOR OF THE DEFENDANTS AS WELL AS READ OR HEARD THEIR STATEMENTS.
I GATHERED MY COURT STAFF THE MORNING THE WARRANTS WERE EXECUTED AND IMMEDIATELY APPOINTED MY LONG-TIME HIGHLY COMPETENT AND JUDICIOUS COURT REPORTER AS THE MEDIA CONTACT PERSON. KATRINA PREPARED CARDS WITH HER NAME, POSITION, TELEPHONE NUMBER AND COURT EMAIL ADDRESS TO HAND OUT TO ALL WHO ASKED. I ROUTINELY WOULD RESPOND, “AS JUDGE I AM NOT ALLOWED TO COMMENT, BUT KATRINA CAN GIVE YOU DETAILS ABOUT OUR CASE SCHEDULE”.
I CONDUCTED INDIVIDUAL VOIRE DIRE AND GAVE SPECIFIC INSTRUCTIONS AFTER CONFERRING WITH THE ATTORNEYS, ON THE RECORD, AS TO HOW WE WOULD AND DID PROCEED. NEXT SESSION I WILL SPEAK WITH YOU ABOUT THE ELEMENTS OF THE PROCEDURE I USED.
CONCLUSION
THERE IS NO GOOD REASON WHY A HIGH-PROFILE CASE CANNOT BE FAIR AND ITS PROCESS AND OUTCOME RESPECTED BY THE PUBLIC. THE OKLAHOMA SUPREME COURT HAS CAREFULLY PROVIDED TOOLS FOR TRIAL JUDGES TO USE. IF WE REMEMBER TO HONOR BOTH THE FIRST AND SIXTH AMENDMENTS AND OUR TRIAL RULES AND ETHICAL JUDICIAL OBLIGATIONS, FAIR TRIAL AND FREE PRESS WILL BOTH INNURE TO THE PUBLIC’S BENEFIT.
TO HANDLE A HIGH-PROFILE CASE I RESPECTFULLY SUGGEST YOUR BEST TOOLS ARE HUMILITY AND PREPARATION. PREPARATION COMES FROM NECESSITY BUT I RECEIVED A VALUABLE LESSON IN HUMILITY FROM THE MOTHER OF A JUVENILE I WAS LECTURING ABOUT MORALITY EARLY IN MY JUDICIAL CAREER. THE CHILD HAD STOLEN ANOTHER CHILD’S BACKPACK AND WAS IN COURT FOR MY DISPOSITION.
HER PARENTS DID NOT APPEAR AT THE START OF THE HEARING, BUT JUST AS I WAS TELLING THE YOUNG MISCREANT THAT HER ADMISSION WOULD BRAND HER A THIEF, THE BACK DOOR OF MY COURTROOM BURST OPEN AND A LARGE WOMAN WITH HER HAIR IN CURLERS, WEARING A BATH ROBE AND BUNNY SLIPPERS MARCHED UP TO THE BAR IN FRONT OF MY BENCH AND SAID, “IF YOU WEREN’T WEARING THAT BLACK DRESS, I’D COME UP THERE AND SLAP YOUR FACE”. THEN SHE SLOWLY TURNED AND MARCHED OUT. YOU KNOW HOW I REACTED? I SAID TO MYSELF, “THANK YOU!” BECAUSE I IMMEDIATELY REALIZED THAT MY POMPOUS BEHAVIOR DESERVED HER REPROACH.
THAT WAS ONE OF THE BEST LEARNING EXPERIENCES OF MY EARLY JUDICIAL LIFE. I RECOMMEND THE SENTIMENT TO ANY JUDGE WHO MIGHT NOT KEEP HIS OR HER EYE ON THE BALL.
IF YOU RETURN AFTER THE BREAK FOR THE NEXT SESSION, WE WILL DELVE INTO SOCIAL MEDIA AND THE JURY. THEN WE WILL HEAR FROM JUDGE THAD BALKMAN OF THE 21ST JUDICIAL DISTRICT COURT AS TO HIS PERSONAL EXPERIENCES IN CASES OF HIGH MEDIA INTEREST AS WELL AS HIS KNOWLEDGE OF JUDGES AND THEIR RELATIONSHIPS WITH SOCIAL MEDIA. THEN WE WILL ENGAGE IN TABLE DISCUSSIONS BASED ON THE HANDOUTS YOU HAVE AT YOUR TABLES.
THANK YOU.
POWERPOINT PRESENTATION THAT GOES ALONG WITH THIS SEMINAR:
CasesWithHighMediaInterest_Modified-2-22025 Oklahoma Summer Judicial Education Conference – Cases With High Media Interest
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