The Court of Public Opinion
[Sorry, the video for this story has expired, but you can still read the transcript below. ]
JIM LEHRER: The legal system is alive and well again. That is the message many have drawn from the Timothy McVeigh trial that ended yesterday with a guilty verdict. We explore that question from several perspectives, first from those of three lawyers: Lee Cooper, the president of the American Bar Association; Peter Neufeld, a criminal defense attorney who was on O. J. Simpson’s defense team; and Jeffrey Abramson, a professor of law and politics at Brandeis University, author of the book We the Jury: The Jury System and the Ideal Democracy. Mr. Cooper, the legal system works after all, is that the message of the McVeigh trial?
LEE COOPER, American Bar Association: It works every day in America, and we’re proud of the way it works. And what you saw in the McVeigh trial is what happens in courtrooms across this nation, hundreds, even thousands of courtrooms every day, even though this was a high profile case in the communities across this nation and courthouses across this nation. Those cases were also high profile cases. I’m very proud of the way our justice system, particularly our criminal justice system, works in this nation.
JIM LEHRER: But do you agree with those who say, Mr. Cooper, that the system was, in fact, on trial, along with Timothy McVeigh to some extent?
LEE COOPER: The system is always on trial. And it ought to be, because the system belongs to the people, belongs to the public. It doesn’t belong to the judges. It doesn’t belong to the lawyers. Only by the public confidence the system has can the system work. And I think some of that measure of public confidence has been restored in the system with the McVeigh trial.
JIM LEHRER: Mr. Abramson, do you agree with that: at first there was a lowering of confidence going into the McVeigh trial, and maybe some of it has been lifted back?
JEFFREY ABRAMSON, Brandeis University: Well, you know, Jim, I think first we had a firestorm of criticism after the Simpson trial and now we have a firestorm of congratulations. The truth, it seems to me, must be somewhere in-between. The sky wasn’t falling, but we’re not in heaven now. I think the good thing about Judge Matsch’s procedure here was that nothing was on trial except this particular defendant. The system wasn’t on trial. The federal government wasn’t on trial. To the extent that it worked differently than other trials, the Simpson trial, is because of the dynamite focus on the dynamite.
I would just quickly add that if we had a historical perspective on this kind of trial, a conviction of a domestic radical, moreover a domestic radical who kills nineteen children and eight federal agents, that’s nothing new. Juries almost always convict in this kind of case. And I don’t know if elections are going to be portable to cases where jurors are not really historically gung ho to convict.
JIM LEHRER: In other words, this was an easy call?
JEFFREY ABRAMSON: Well, you know, it could have been messed up. The prosecution could have messed it, but I would say in historical perspective the lesson is–with the exception of perhaps Vietnam and Europe, where the war, itself, became unpopular, jurors almost always convict acts of domestic terrorism.
JIM LEHRER: Yeah. Mr. Neufeld, the trial that you participated in, the Simpson trial, has been cited–rightly or wrongly–as the worst example of the system run amuck. And now it’s now being compared with the McVeigh trial. Is that a fair comparison?
PETER NEUFELD, Criminal Defense Attorney: Well, Jim, really it’s not a fair comparison. In the first place every trial is different, obviously. I think if you want to draw one important lesson from this case, it is keep the cameras out of the courtroom, and you’ll find everybody conducting themselves in a more responsible and professional fashion; the lawyers, judges, the witnesses, and not least of all the press, themselves. I think in this case they conducted themselves in a more disciplined fashion, and the press certainly didn’t do that in the Simpson case.
JIM LEHRER: And would agree that the lawyers didn’t either?
PETER NEUFELD: Well, I think what happens is that the press creates this kind of environment where, where lawyers start acting out, where judges start acting out, and it’s not very healthy for those who are pursuing justice. And so in this case you didn’t have the cameras, and the whole thing became more toned down, and it wasn’t–even though the issues were certainly more important–it didn’t have that kind of–that circus atmosphere. And we’re all better off without it.
JIM LEHRER: More important, because more lives have been lost, is that what you mean?
PETER NEUFELD: Well, obviously, it’s more important. How can you–I mean, look, it’s the single largest act of terrorism in the history of the republic. It’s one of the most significant prosecutions that’s ever happened in this country and should be taken with a kind of solemn approach. And it was, and that’s to everyone’s credit.
JIM LEHRER: Mr. Cooper, do you agree that television cameras turn players into abnormal people?
LEE COOPER: I think we all have a natural tendency to play to the camera, but I think even in this case if the judge had decided to have cameras in the courtroom I think the trial would have gone just like it went anyway. I think the judge–
JIM LEHRER: Wait a minute. In other words, if let’s say we had the same set of circumstances, the same facts, the same defendant, the same courtroom, if a television camera had been in there and the lawyers had been able to talk to reporters at will as they were in the Simpson case and in a lot of other cases; nothing would have changed?
LEE COOPER: Well, I didn’t say lawyers free to talk to reporters at will.
JIM LEHRER: Okay.
LEE COOPER: I just said cameras in the courtroom.
JIM LEHRER: Cameras in the courtroom in and of themselves is not going to determine the outcome of a trial or how a trial is conducted. That’s going to most often be determined by the professionalism of the judge, the professionalism of the lawyers. But the trial is for the people–the accused, for the victims, and the families of the victims. That’s who the trial is for. The trial is not for the public, and that’s why it was so pleasing to see that in this case–a very complicated case–was tried in a very short period of time and the jury was able to reach a verdict after apparently considerable deliberation.
PETER NEUFELD: I think the problem–
JIM LEHRER: Yes, go ahead.
PETER NEUFELD: No. I think the problem is he’s talking about an abstract ideal that in reality, though, once the press gets involved with cameras in the courtroom, you have this kind of feeding frenzy by the media where they, themselves, are making stories about the witnesses who appear in court each day. Where the press has stories outside the courtroom about the agents and lawyers who accompany those witnesses and everything gets ratcheted up in pressure and it creates an environment where people tend to act out in a way that’s inappropriate. And that happens just by the mere fact that you place that camera in a courtroom in a high profile case. And I dare say even this case, with some of the people who testified for the government and for the defense, they would have been acting differently on the witness stand if there were cameras there. They would have been acting differently when they came out of court, and would have just been a very, very different environment.
JIM LEHRER: Mr. Abramson, where do you come down on this?
JEFFREY ABRAMSON: Well, I’m of two minds, but I think we ought to avoid the presumption that there are the professionals who can tolerate and behave before cameras and there are the rest of us who somehow are reduced to circus animals if the cameras are there. Now, I think we start with the principle that information is good and that the public has a right to know what’s going on in trials.
PETER NEUFELD: That’s not entirely correct. You start with the premise that the defendant has a right to a fair trial. That’s the constitutional protection.
JEFFREY ABRAMSON: We start with–
PETER NEUFELD: But there’s no premise that says that TV cameras have a right to be present in a courtroom.
JIM LEHRER: All right.
JEFFREY ABRAMSON: If you read the premise under the 6th Amendment that trials are to be public and we have to sort of worry about what that means in this particular age, in this particular time, I think that, of course, there’s no constitutional right to have cameras in the courtroom, but, you know, I think before we draw the lesson that the–which I think is already being drawn, that this case proves that television is the culprit, I think we ought to step back from that and have a bit more faith in the ability of people not to succumb to the worst of human impulses.
You know, I’m told by people who were at this court that it was conducted with a quiet kind of dignity. And I do sympathize with arguments that were just made that sometimes cameras–cameras are bulky and noisy in ways that simply do not–do not play into the ordinary decorum of courtrooms, but, on the other hand, you know, this was a trial that should have been seen. This was a trial that should have been seen. This was a trial that if we’re going to deliver a civics lesson from it, we should search for ways while protecting the rights of defendants to quite dignity that do understand the fundamentally in the United States are open and public events.
JIM LEHRER: So you would disagree then when Mr. Cooper said a moment ago that this trial–these trials are not held for the public; they’re held for the defendants and the parties to the trial, and that is the No. 1 priority; you think that the public does have a right to see some of them.
JEFFREY ABRAMSON: I do. I worry about prioritizing fundamental values. Are the rights of defendants fundamental? Yes. In a democracy, is justice a public event, does the public need to have confidence in the system, should the public be able to watch, should the public be able to have a forum? These are fundamental. Is there tension between them? Yes. But I don’t think we should give up and say we have to choose. Democracy is a process of accommodating the public’s interest and the defendant’s interest and the state’s interest.
JIM LEHRER: Mr. Cooper?
LEE COOPER: Well, I have no problem with the media scrutiny of our justice system. I’m proud of our justice system. And that’s what helps the public confidence of our justice system. In retrospect, it would have been nice to have had cameras in the courtroom in the trial so the American public can see that this case is the normal case. The O. J. case was an aberration; it was a fluke. This case is the normal case that occurs across this nation a hundred or a thousand times a day, where it’s done with dignity. It’s done with awe. It’s done with piety to ensure that the defendant gets a fair trial, the state gets a fair trial, and the jury can make a reasoned decision about conviction or innocence. And this is the way trials happen in the United States, and it’s too bad we didn’t get a chance to look at it, and I don’t think cameras would have changed the professional attitude of this judge or these lawyers in this case.
JIM LEHRER: Mr. Neufeld, let me ask you the question. Do you think that all of this praise for this trial would be different if the verdict had been “innocent,” if it had been “not guilty,” and a majority of the people had disagreed with it?
PETER NEUFELD: I think, of course, it would have been different. I mean, obviously, one of the primary reasons there was a lot of criticism about the Simpson case was not until after the case was over and the jury came with a “not guilty” verdict, and you had a nation that was divided over the correctness of that verdict. You don’t have that same phenomena here. You don’t have a large block of people in America thinking that FBI agents will go out of their way to frame this–this white reactionary on the single worst act of terrorism in the history of the country; however, you did have in the Simpson case large numbers of people bringing their life experiences to bear and believing that, yes, a white racist police officer, a notorious white racist police officer, could frame an innocent black man. So you have these two very, very different experiences. And you can’t even compare them that way.
But what you do have is you have a press in this case who believed in the correctness of the verdict. You had a press corps in the Simpson case who did not believe in the correctness of the verdict. And the way those two things spin out when the trial is once over has a huge impact on whether we Americans as a body have a catharsis as a result of the trial or have a healing experience. I think what you’re seeing here now is the latter. What you had in the Simpson case was the former.
JIM LEHRER: Do you agree with that, Mr. Abramson, that the verdict has a lot to do with how people feel about how terrific this trial was?
JEFFREY ABRAMSON: Absolutely. I mean, we staved off disaster, the disaster that McVeigh might have been acquitted. And I think that’s the most you can say here.
JIM LEHRER: And we would be talking about what a terrible travesty–
JEFFREY ABRAMSON: We would–
JIM LEHRER: –that the system doesn’t work and all that, right?
JEFFREY ABRAMSON: The system–the jury system cannot convict in even the most obvious cases, et cetera. But, you know, I think Mr. Neufeld’s remarks did pinpoint the problem here. Before we run off congratulating that everything is fine, the fact of the matter is that–that the difference between this case and the Simpson case highlights the problem areas. Everything isn’t fine in the jury system. The jury system does have problems with sexual violence. The jury system does have problems when the defendant is of a different race than the jurors. Those kinds of problems were averted here, and, you know, within a certain narrow area, where the issues are clear, where race is absent, the jury system works. It doesn’t especially work and won’t work the next time we have sexual violence, television and race together.
JIM LEHRER: So we just have to remember what we’re talking about at any given time?
JEFFREY ABRAMSON: Different trials produce different juries.
JIM LEHRER: All right, gentlemen. Thank you all three very much.