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| FREE PRESS VS. FAIR TRIAL | |
 November 12, 1999 
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The NewsHour Media Unit is funded by a grant from
the Pew Charitable Trusts.
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| Two competing interests | ||||||||||||||
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Mr. Gray, why was it essential to have the entire Dan Rather interview and what did you learn from it that was new or different?
TERENCE SMITH: Well, when you got the full and unedited version, did you discover anything new or different? GUY JAMES GRAY: Actually I got it Tuesday. And I haven't had time to read through it yet. But we needed it to introduce into evidence the portion about the sandals, and we introduced the whole transcript. And I'll go through it this weekend. I know there are a couple of things that we'll use on cross at least. TERENCE SMITH: All right. Floyd Abrams, why did CBS fight so hard on this issue given the fact that there were no confidential sources involved in this case?
TERENCE SMITH: All right, Mr. Gray, do you see any merit in that argument from the media's point of view? Is there a competing right in your view? GUY JAMES GRAY: Well, there would certainly be some merit if you're talking about a confidential source. There would be some merit if you're talking about a reporter's private notes. But the law in Texas is clear. If you interview a defendant, and what that defendant says is admissible in the courtroom. It's just a matter of Texas law as far as I'm concerned. |
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| Why CBS found the request | ||||||||||||||
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TERENCE SMITH: And the principle? Floyd did you want to say something?
TERENCE SMITH: That's the point I was trying to get at, Mr. Gray, which is in this case, not a confidential source, but in this case, do you recognize a competing interest there?
TERENCE SMITH: Floyd Abrams, if this principle is so important, why in the end did CBS decide to, essentially, throw in the towel? FLOYD ABRAMS: Well, CBS exhausted the Texas courts. They went from the trial court to the intermediate court to the highest court. TERENCE SMITH: Was there no appeal to the federal level? FLOYD ABRAMS: No effective appeal to the federal level. Texas law is, as Mr. Gray says, clear. The opinions in the circuit - in the Fifth Circuit where Texas is -- are also clear. Unfortunately, CBS was in a position where there was simply no legal recourse at all in the place where this was going on. I was fighting very hard... I was retained to fight very hard in New York against turning over the outtakes. And the prosecution dropped its request for the actual outtakes today in the New York courts. So CBS did everything it could to resist. The question at the end of the day was, the courts having found there was no defense, a producer about to go to jail, should CBS in effect tell the producer go to jail even though there is no law at all that we can use to get you out of jail? And that becomes an important decision. I know a lot of reporters certainly will go to jail to defend confidential sources. Some have even gone to jail for an issue like this. But I can't say that's the norm. The principle though remains the same, and the important thing is CBS fought hard, very hard, to protect that principle and will fight again. TERENCE SMITH: Mr. Gray, why did you drop the request for the outtakes? GUY JAMES GRAY: Well, sir, we haven't dropped the request for the video outtakes. We dropped a subpoena for Dan Rather.
TERENCE SMITH: Mr. Gray? GUY JAMES GRAY: I'll have to check into that. The agreement I signed was drop on Dan Rather, not the video. |
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| A jury's right to now | ||||||||||||||
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TERENCE SMITH: All right. There are shield laws in 30 states and the District of Columbia, Mr. Gray, but not in Texas? Tell us why.
TERENCE SMITH: Floyd Abrams, do you expect this to have any wider effect in other states? Will prosecutors move more vigorously, perhaps, in other states to pursue material like this? FLOYD ABRAMS: I don't think so. I think that the very fact that CBS fought and fought and fought in Texas, in New York. Were this not Texas, were there not a state where there were no protections at all and where the law was clear on that, I think CBS and Mary Mapes and Dan Rather and all of us had a very good chance of winning. So this is an ongoing battle about an issue of principle. It is not to benefit CBS, not to benefit its reporters. On this one, the entire basis of it is this is a way to get more information, more important information to the public. And that's why so many states recognize this. TERENCE SMITH: All right, Mr. Abrams, Mr. Gray, thank you both very much. |
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TERENCE
SMITH: Joining us now are lawyers for the prosecution and for CBS. Prosecutor
Guy James Gray is the criminal district attorney of Jasper County, and
First Amendment specialist Floyd Abrams represented Dan Rather and CBS
in New York. Welcome to you both. 
GUY
JAMES GRAY, criminal district attorney, Jasper County, Texas: Well,
the first thing is the rules of evidence. There was a portion of the
aired interview that we needed to get into evidence. Under our rules,
we can't do that unless we have a full, unedited version. So by getting
that, we were able to air a portion where Berry talks about the shoes
that King was wearing and we'll use it to try to establish at least
that King was a passenger and Berry was the driver. What was the second
part of the question? 
FLOYD
ABRAMS: Well, CBS fought very hard on this because it believed and believes
that there's a principle at stake here. The principle is that Dan Rather
doesn't work for the police, and that people that speak to Dan Rather
understand that he's a journalist and not a police agent. Here we have
a situation where a defendant in a case agrees to an interview with
Dan Rather. It happened to be not confidential. But it was an interview
with Dan Rather. If the word gets out, if the perception exists that
by speaking to a CBS journalist you are, therefore, inevitably, immediately
speaking to the police, I don't think there's any doubt but that people
won't talk. And, therefore, the public won't learn. I mean the idea
of this is that it's a good thing for the public to hear interviews
like this and that there will be an inevitable amount of fewer interviews
if people that the press talks to wind up thinking, well, it's not really
a CBS correspondent. This is going right to the police. So, it's a very
dangerous precedent. 
FLOYD
ABRAMS: I was just going to say Mr. Gray is correct. That's why the
Texas courts ordered the material released. The issue of principle,
though, doesn't change. I mean in a lot of states, as you pointed out
earlier, in over 30 states, including California and New York and in
lots of others, there's legal protection afforded because a decision
has been made that there is a competing interest. And it's a competing
interest that matters. The interest is it's a good thing to have an
informed public. And the underlying theory here is that the public just
will not be informed if people that talk to journalists understand that
when they're doing so, it's really not a journalist they're talking
to, but a policeman with a journalist press card.
GUY
JAMES GRAY: I'm sure there is a competing interest. The doctors say
they don't want to tell what somebody tells them so they can treat a
patient. The preachers say they don't want to tell what somebody tells
them so they can heal their soul. Everybody says that same thing, that
we have a private right that should be protected. It's probably a little
over my head in terms of philosophy, but I recognize these rights and
I also recognize the right of a jury to know every fact that they can.
If they have got to decide a life and death case, the jury wants to
know it. The juries asked for these transcripts.
FLOYD
ABRAMS: Well, I can tell you, having been in court today in New York,
that the requests for the video outtakes have been dropped. 
GUY
JAMES GRAY: Well, I don't know why. I can understand that there should
be maybe some privacy and a private source that you're using. Cops feel
that same need. I think I can understand that the notes of a reporter,
maybe, should be private, but I don't believe that the statements of
an accused should ever be private. Any reporter should know when you
talk to a defendant that information's going to be made available to
a jury.