CONFESSION CONTROVERSY March 3, 1997 TRANSCRIPT

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Timothy McVeigh's lawyer accused The Dallas Morning News of "fraud, deception and theft" after it ran a story that McVeigh admitted guilt in the Oklahoma City bombing. McVeigh's alleged confession came from a defense memo, one that his lawyers say was found by illegal computer hacking. Jim Lehrer looks at both sides of the issue following a Kwame Holman backgrounder.

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March 3, 1997: A Kwame Holman backgrounder on the Dallas Morning News report of Timothy McVeigh's guilt. July 19, 1996: A panel of terrorist experts and civic leaders discuss attempts to balance security versus personal freedom. April 19, 1996: A panel of NewsHour regulars looks at the ceremonies on the one-year anniversary of the bombing and the after-effects of the bomb. April 19, 1996: Betty Ann Bowser reports on the mood and the ceremonies at the site and around the city one year later. April 18, 1996: Betty Ann Bowser reports with an update from Oklahoma City, where people are preparing to observe a painful anniversary on April 19th. April 5, 1996: President Clinton's speech to the people of Oklahoma City, marking the one year anniversary of the Oklahoma bombing. EXTERNAL LINKS The Web page of the Dallas Morning News.

JIM LEHRER: Now two views of The Dallas Morning News decision to publish that article. Those views come from Larry Pozner, First Vice President of the National Association of Criminal Defense Lawyers, and Paul McMasters, a former newspaper editor who's now First Amendment ombudsman for the Freedom Forum, a journalism issue center. Mr. Pozner, is the issue how the Dallas Morning News got this material, or the fact that they published it from your perspective?

LARRY POZNER, National Association of Criminal Defense Lawyers: The damage would have been bad enough had they merely obtained it, but the publishing of it just puts the issue over the top.

JIM LEHRER: And what is--in what way?

LARRY POZNER: America has waited two years for a fair trial in a case of momentous importance, and instead of that, we have a newspaper for its own private gain publishing a story that virtually destroys the right to a fair trial.

JIM LEHRER: In what way? How does it destroy the right to fair trial?

LARRY POZNER: We ask a jury in this case and in all cases to come to court, hear the evidence that is lawfully admitted, and make a decision based on the evidence. Now, The Dallas Morning News has put into play a story of tremendous significance that can never be rebutted and that will never be introduced into trial.

JIM LEHRER: And the consequence of that is?

LARRY POZNER: The consequence is we're going to make jury selection infinitely harder now, and we're going to, in the end, ask people, can you take something you've heard and put it out of your mind, and jurors will say, I'll try, and the question we have to ask is we ask human beings to put something out of their mind, where do they put it?

JIM LEHRER: Mr. McMasters, did The Dallas Morning News do the wrong thing or the right thing?

PAUL McMASTERS, The Freedom Forum: I think they did the right thing.

JIM LEHRER: And why?

PAUL McMASTERS: Well, I think, as Larry says, this is a trial of momentous importance. And I think that to wait with our hands in our pockets until this whole thing is wrapped in a pretty package and tied up with a bow and handed to us is not the American way, or democratic way. I think that's a crimped view of the press, to say it's simply publishing something for the bottom line. I think that there were sincere and serious considerations made by the folks at The Dallas Morning News to give the American people information they could use.

JIM LEHRER: The public has a right to know that this statement was made by McVeigh?

PAUL McMASTERS: Absolutely. And I think that the public is quite capable of putting this not out of their minds but aside to make a good and deliberate decision in this case. We've seen stories of this nature in May, after the bombing, a month after the bombing. The New York Times reported essentially the same thing in July of 1996, Newsweek reported essentially the same sorts of things. We have seen hundreds, literally hundreds, of those clips of Timothy McVeigh walking out of a jailhouse in jail uniform and shackles, and I don't think that any American that is chosen to serve on a jury is going to be unduly prejudiced by that.

JIM LEHRER: What about Mr. Pozner's flat statement that this makes it impossible for McVeigh to have a fair trial?

PAUL McMASTERS: Well, Jim, there is remedy at law for any time a fair trial is tainted or suspected of being tainted from voir dire, questioning the jurors, to change of venue, to instructions by the judges to the attorneys in a case, to instructions by the judges to the jurors, and ultimately to appeal. There is no remedy at law for censorship or prior restraint.

JIM LEHRER: Mr. Pozner, what about that? Do you have a way out? In other words, lawyers for McVeigh have a way to challenge this.

LARRY POZNER: That's flat wrong. You have a way to challenge government impropriety, but there is no way for the citizen to challenge the impropriety of a newspaper publishing the story. And when the gentleman says we're not content to wait until this is wrapped up in a pretty package with a bow, that pretty package with a bow is called a trial. And that's how we've done it for 200 years. For 200 years we said we will have a fair trial to determine the evidence. Now, what's happened here is the Dallas Morning News has said they love one part of the Bill of Rights more than all the rest of the Bill of Rights. They've said they have a First Amendment right to print it, and the Fourth, Fifth, Sixth Amendments be damned; they're going to go ahead. The public didn't need this story. What the public wants and needs is a fair trial to a fair resolution.

JIM LEHRER: Mr. McMasters, is that really the crux of this, the conflict between the First Amendment, which guarantees the right of freedom of the press, versus say, what is it, the Fourth--what is it--the Sixth Amendment, that guarantees the right to a fair trial.

PAUL McMASTERS: It's a traditional conflict, and Mr. Pozner knows that in most of the court decisions when those two are in conflict, invariably, the people's right to know does not get short shrift, and neither does a fair trial. There is ways to accommodate both. There are ways to accommodate both.

JIM LEHRER: But what about his point that usually it's the government that you have to move against, not against the newspaper?

PAUL McMASTERS: Well, as I mentioned before, there have been plenty of reporting that could prejudice the trial either way. And, again, that is why we have a jury, to sort all of that out, to listen to the judge, to listen to the two sides of the cases, and I have faith that they will do it.

JIM LEHRER: Mr. Pozner, is it your position that newspaper editors or television news directors or anybody in the news business, when they get a piece of information, should evaluate the potential it might--the potential harm, or the potential impact it might have on other events before it's published, or broadcast?

LARRY POZNER: No, I'm not asking for any rule like that. I'm saying when a newspaper 30 days before trial says it possesses information that, No. 1, it knows will always be inadmissible and No. 2, it knows it has no right to publish it, that it is not publishing it with the defendant's permission or their counsel's permission, then they have no right to go ahead and publish and put their own rights above the rights of America to a fair trial.

JIM LEHRER: Inadmissible, we should make that point clear to the non-lawyer, that statement, if it in fact exists in the form that it was published, would be inadmissible because it was made to his lawyers, rather than to a law enforcement officer, that's the point, right?

LARRY POZNER: What's--the point is they say that they have confidential information, that for 200 years they have understood they're not--that no lawyer could reveal, so they possess something they know they're not entitled to have, and they possess it knowing no jury will ever here it. So they say let's make sure every potential juror does hear it.

JIM LEHRER: Is he right about that, Mr. McMasters?

PAUL McMASTERS: I don't know how he can be privy to what went on The Dallas Morning News newsroom. I do know the people there, and I know that they discuss these issues seriously and take them seriously. And they bring their lawyers into the case. I don't believe that Ralph Langer or anybody else at The Dallas Morning News--

JIM LEHRER: He's the executive editor, right?

PAUL McMASTERS: The executive editor, right. Would ever publish anything they knew to be illegal, or tolerate what they knew to be criminal practices getting the story?

JIM LEHRER: But what about the point that Mr. Pozner's making, is that this information, unlike some other information, is so privileged that it would never be made public in the course of the trial? In other words, unless it came out in some list the lawyers chose on their own, the defense lawyers chose, yes, this defendant confessed this crime to us, which is a very unlikely event, they made the decision to kind of, in effect, play God?

PAUL McMASTERS: I should point out here too that though nowhere does the word "confess" or "confession" appear in any of the stories that The Dallas Morning News published, even though Mr. Jones has used that term and others too, but I don't think that anybody can say that a good juror will not be able to handle this kind of information, just as he or she has handled all the other information that's come out, and this case, the unabomber case, we haven't seen that go to trial yet, but we saw the O.J. Simpson trial go to--go through two different variations, and I think the jury's reached decent decisions in both cases.

JIM LEHRER: Mr. Pozner, what that? There have been an awful lot of--this isn't the first highly publicized crime in this country. There have been an awful lot of trials and an awful lot of juries.

LARRY POZNER: Nor will it be the last time they publicize--

JIM LEHRER: Right.

LARRY POZNER: But wait a second. There's a difference between airing something before it comes into evidence knowing it's going to come in--DNA test results, for instance--and airing something that will never come into evidence. We also need to remember the O.J. jury was sequestered, although I have to point out we should never use the O.J. case as an example of anything. But the point is this: They are not publishing something that a jury could later hear and decide on. They knew something no juror could ever hear. They knew they were publishing something no person ought to have their hands on, and yet they did it. And they did it because they felt their right is an absolute right; that their right should override the rights of America to fair trials.

JIM LEHRER: Absolute right of America--I mean, absolute right to overrule the right of fair trial?

PAUL McMASTERS: I sure wouldn't characterize it that way, Jim. I think they were serving an absolute right of the American people to know about a significant event and to give the kind of detail that helps them make up their mind after they've seen the trial unfold.

JIM LEHRER: What do you think should be done about this, Mr. Pozner?

LARRY POZNER: Well, if The Dallas Morning News had taken these documents from an FBI computer, I'll tell you what would happen. The government would spring into high gear, and we'd have a thorough investigation. We'll need to wait to see if the government is as concerned when the items are allegedly taken from a defense computer, but there ought to be an investigation. Short of that, what are we going to do? We're going to ask human beings to set aside that which they've heard, that which they've been told exists. We're now going to try to do a very difficult trial under harder circumstances. This didn't further America's goals of a fair trial. This wasn't in the public interest. You know, they don't publish juveniles' names. They don't publish gory photos. Editors every day make hard decisions saying you know, somebody in the public might want to know, but it's beneath our standards to print it. Apparently, this isn't.

JIM LEHRER: Mr. McMasters, do you believe this decision furthered the right of the First Amendment and freedom of the press?

PAUL McMASTERS: Yes, the public's First Amendment rights. They have a right to know what's going on in a democracy. They have a right to know what's going on in a trial of such significance. And I don't think the right of a fair trial has been abrogated. It may make it a little bit changed in strategies and difference, but the fact that the people know something doesn't mean that fair trial has been eliminated.

JIM LEHRER: All right.

LARRY POZNER: For 200 years we've said no one has a right to peek in a lawyer's file. That's been the rule in civil law, in criminal law, in divorce law, in every case in American history. Now there's a new rule today in Dallas.

JIM LEHRER: New rule?

PAUL McMASTERS: I don't think there's a new rule at all. I think it's the same old rule being applied as it always has, and I think it's served us well.

JIM LEHRER: Well, we have to leave it there. Thank you both very much.

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