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Louisville Law Examiner Serving The University of Louisville School of Law Community Volume 5, Number 6 Louisville, Kentucky, April 14, 1980 Law School Fields Two Teams In National Competition by Pat Chism After defeating an Ohio State Law School team by a large margin, a team from the University of Louisville School of Law in the Sixth Circuit Moot Court Competition fell before the eventual winner, Capital University of Columbus. The competition was held at the University of Akron on March 7. Stephanie Miller and Matt Livingood comprised the Louisville team, which was accompanied by facultyadvisor James J. Ragan. "We beat ourselves in the second round," said Mr. Livingood. "The others were less able to think on their feet, but they had reviewed the case so much that their responses were automatic. We think better on our feet. We just came up short on the questions." Prof. Ragan agreed that the Capital team was "finely honed. Capital places a great deal of emphasis on appellate argument. They had probably argued this particular problem ten to fifteen times before they came to the regional." Ms. Miller said, "It was like being up against a bunch of robots." But Prof. Ragan felt that they measured up well against the other teams. The two teams from Capital finished first and second in the Circuit competition. They both go on to participate in a national competition to be held in San Francisco during the national ABA convention in August. Twenty-one teams competed in Akron, with most being from Ohio. The team from Louisville and one from the Chase School of Law were the only teams representing the state of Kentucky, said Ms. Miller. The competition is sponsored by the Law Student Division of the ABA. Each team was assured two rounds. Finalists were determined by a "power pairing" approach and, if a team won both rounds, it automatically advanced. The vacancies in the field of eight semi-finalists were filled by the teams with the highest point differentials. U of L's team defeated Ohio State by 33 points and lost to Capital by 10 in a split decision, making their differential 23 points which was not enough to advance. "I do it because I enjoy it," said Mr. Livingood, in commenting on the competition. ''I think people are selling themselves short if they don't try out for these types of things. I know for one thing, it is looked on favorably on resumes." Mr. Livingood has become accustomed to appellate competition, as this is his second year on the Sixth Circuit competition, and he has also participated on the National Moot Court team from U ofL. "I got into it mostly because I have a fear of speaking," said Ms. Miller. "I knew I would have to get over it. It is better to do that now than in an actual courtroom situation." "What is helpful for people in there for the first time is to know that everyone else up there is as scared as you are," she said. "After it was over I was so hyped-up that I wanted to get in there and argue it again. We didn't get much sleep so I guess I was running on pure adrenalin." The problem involved nine constitutional issues and was argued as a case of first impression in the "court." It dealt with a private contractor who was building low income condominium units. The city condemned the property they were building on for a sewage plant, motivated, claimed the builder, by discrimination to prevent the project. The city counterclaimed saying they had a right to condemn, and that the units were to have an illegal racial quota anyway. A standing issue was also raised. The teams were given opinions of a district court and a court of appeals. They had to research the issue from there for the "Supreme Court" argument. "I learned how to research a case in the nitty-gritty," said Ms. Miller. There were only four people who tried out for the team this year. Prof. Ragan attributed part of the poor turnout to the timing of the competition. In the future, the Moot Court Board plans to promote it more, he said. Mr. Livingood felt it was a matter of developing school pride in this aspect as the Ohio schools have done while Ms. Miller said that having two teams from the school would give the school a much better shot at winning. Client Counseling Team by Craig Bell On March 8, 1980 the School of Law was also represented by a team composed of second-year day-division students Ray Haley and Ernest Caposela in the regionals of the National Client Counseling competition held in Lexington, Kentucky. The event, which is sponsored by the American Bar Association for the purpose of exposing law students to the problems an attorney may face while counseling clients, attracted about 120 law schools to the competition nationally. According to Mr. Caposela and Mr. Haley, they learned of the competition from Professor Marlin Volz through his Legal Counseling seminar. Prof. Volz served as the team's advisor and provided video tapes of past competitions for the team to observe so that they would be familiar with the format of the event and have some idea of what to expect in the competition. He also arranged for a number of attorneys to discuss client counseling problems with the team over dinner at Masterson's Restaurant. Mr. Haley and Mr. Caposela felt that time limit restrictions were a major reason that they were eliminated in the first round of competition by Thomas Cooley Law School of Detroit, Michigan, which went on to win the regional competition. The problem faced by the team involved giving legal ~dvice to a widow regarding business partnerships, decedents' estates, and ethical considerations. One psychologist and three attorneys served as judges for the event. Mr. Haley believes that a great portion of the competition deals with the need of an attorney to present a theatrical-like performance to the client and that making the client feel comfortable while talking to the attorney is of primary importance. Both Mr. Caposela and Mr. Haley stated that the competition was very worthwhile and expressed a hope that more U of L law school students would become involved in the competition next year. Matt Livingood and Stephanie Miller represented the School of Law in a Sixth Circuit Moot Court Competition held on March 7. Ray Haley and Ernest Caposela participated in a Client Counseling competition held on March 8. Prof. Marlin Volz, center, served as the team advisor. Circulation 4100 Irving Younger Prof. Younger Gives Lectures On Evidence On April 10, the Louisville Law Forum sponsored two lectures by Cornell Law School Professor Irving Younger. Prof. Younger is presently the Samuel S. Leibowitz Professor of Trial Techniques at Cornell. Because of his wide-ranging experience in courtroom practice. Prof. Younger is a nationally respected authority on the subject of evidence. He is chairman of both the Trial Advocacy Section of the American Association of Law Schools and the Committee on Teaching of Trial Advocacy for the Litigation Section of the American Bar Association. In addition to previous faculty positions at Harvard and Columbia University Law Schools, Prof. Younger served for several years as an Assistant U.S. Attorney in New York and later as a Judge of New York City's Civil Court. He is a 1958 graduate of New York University Law School where he served as editor-in-chief of the law review. During his first lecture at I :00 in the Allen Courtroom, Prof. Younger delivered a spirited, step-by-step account of the famous espionage trial of Alger Hiss. He discussed each phase of the evidence that had been presented, pointing out particular impeachment techniques used against some of the 112 witnesses who testified, and ended with an animated summation for the prosecution. At 8:00, Prof. Younger addressed a specific aspect of trial practice evidence, the examination of expert witnesses. He emphasized that the "cross-examination of an expert should be fun rather than intimidating ... If you don't bloody an expert every time you have the chance on cross-examination, shame on you ." A reception was held in the Cox classroom after the lecture. The Law Forum also hosted a dinner for Prof. Younger before his second lecture. Among those persons who attended were Kentucky Supreme Court Justice Marvin Sternberg, Circuit Court Judge Charles Liebson, District Court Judge Olga Peers and Louisville attorneys Larry Franklin and Gary Weiss. 2 Louisville Law Examiner, April14, 1980 Letter to the Editor Dear Editor: The Moot Court Board recently voted to postpone the voluntary rounds of the Pirtle-Washer competition until the fall term. It seems that several members of the first year class felt that it was unfair to ask them to compete again this term. A petition was hastily circulated and presented to the Board. I was, and still am, against shifting the bulk of the competition to the fall term. I had no vote on the matter since I am no longer on the Moot Court Board, but for the record I would like to explain my point of view. First of all, there was no master plan to make it rough for the first year class. That is pure paranoia. The program was structured by students, most of whom participated in the advanced rounds their first year here. This is a professional school and therefore it requires a higher standard of competence and devotion than undergraduate school. Secondly, shifting the bulk of the competition to the fall effectively destroys the National Moot Court competition for those who will be second-year students next year. The sizable number who signed up to continue in the Pirtle-Washer competition won't be able to participate in both effectively. The present sign-up list will require five rounds to pick the finalists. They will certainly be experienced, but they cannot compete here and in another city simultaneously. I think a legal education should include more than class attendance. The various competitions provide an excellent opportunity to learn valuable skills. I can't suggest strongly enough that everyone push themselves a little to participate in these competitions. The more competitors the better the team selected. And the better the team selected the greater the chances that a team from this school will place nationally. That bolsters the reputation of the school and cannot hurt job prospects down the line. Most day students clerk their third year. They have one foot in the "real world" and want nothing more than to put the trailing one in the same place. Employers are not blind to the fact that doing something outside of class requires a little chutzpah. That is why I feel so strongly about the various competitions in the second year. In conclusion, I feel that a number of events culminated in an unfortunate result. The National Moot Court will lose the benefit of a lot of energy. I hope the new Moot Court Board will find a way to overcome some of the obstacles that seem to appear every year. The program has only been in the hands of students for a short time. Some progress has been made, but there is still much more that can be done to make the progams more enticing and more competitive. The only limit is the students' willingness to improve this situation for themselves and those who will follow. Frank Burnette New Officers for 1980-81 Law Examiner Edlton of the Loulsvllk Lllw Emmlner for 1980-81 are, from left: leff Wade, Brandeis Brief Editor; Tom Schultz, Managing Editor; Elizabeth Ward, Editor-in-Chief; Frank Bush, Associate Editor; (standing) Craig Bell, Associate Editor; John Wright, Business Manager; and Scott Furkin, Photogaphic Editor. Gerald "Bear" Schray, Art Editor, was sitting under the table. Louisville Law Examiner EDITORIAL BOARD Sam B. Carl, Editor-In-Chief Greg Yopp, Managing Editor Elizabeth Ward, Associate Editor John B. Wright, .Jr., Business Manager Pat Claillm, Photoarapbic Editor Scott Farkla, .Photoarapber ·Gerald "Bear" Schray, Artht STAFF Jeffrey L. Wade, Brandeis Brief Editor CraiJ Bell, Articles Editor Pat Chism, Projects Editor Andy Altman FraakBusll HaiiSaaden Tom Schulz · ,JudRr MARLIN M. VOLZ. Advisor Professor A tBt:RT T. QUICK, Consultant The Louis.-ilte /_aw Examiner is .published eight timt'S durin~t the academk ~·ear in lht> Interest of tllr University of touisville School of l .aw commonit)·. Unsi~tned editorial opinions are thflse represenlinR a Rlajority vt~e of the editorial board and do not neressarit~· expt"t>Ss the views of the School of Law or the Univtrsit~· of Louisvillt>. Articles are invited from facull)· members. students, and members of the bar "·Ito wish to do freelance work, but any proposed arlide must be dt>ared in ad\'ant·e with lht> editor as to topk and length. This is to avoid duplication nf wnrage and insurl' that lht• artidt> "ill nnl be beyond workable length fctr a newspaper fnrmal . Address all communications to the Louisville Law Examiner, School of Law, University of Louisville, Louisville, Kentucky 40208. Phone 502-588..(i398. 11Brandeis Brief'' Series Emerging Legal Issues Trial by Television: Point of No Return? PART II By George Gerbner The Annen berg School of Communications University of Pennsylvania INSTITUTIONAL CROSS-PURPOSES Entertainment is the cultivation of conventional morality. it " entertains" the basic values and norms of the community and cultivates conformity to those norms. An imporant part of that is the exploitation of popular prejudices and the cultivation of public support for the suppression of threats and challenges to the social order. From the arenas of the Roman empire to the present, show trials, highly publicized confessions, public tribunals and executions have formed a part of that process. The most widely frequented shows in London just emerging from the middle ages were "public executions; and even after these were abolished, attendance at murder trials remained as a more socially restricted but nevertheless much sought-after entertainment. A visit to a hanging might well, one presumes, have followed a gentle prodding with a stick of some madman at Bedlam." 10 · The great show trials and public confessions of the twentieth century occurred under dictatorships and periods of witch hunt in democracies. They were a part of the ·entertainment mainstream, now joined by much of what we call news, compelling attention, exposing deviation, spreading fear, and cultivating conformity. The most recent state to use television trials in a systematic way is the new Islamic government of Iran which broadcast them and aired "full confessions" nightly on television. 11 Tempering the swift and powerful tides of the cultural mainstream are the protections provided by those specialized institutions whose integrity is essential for the survival of self-government, if not of the human spirit. These institutions adjust the social order to a plurality of interests and hold out the possibtlity of peaceful reform and renewal under changing conditions. Perhaps the most important are the legal protections afforded those accused of deviating from the norms of conduct, particularly in ways most likely to draw media attention. The struggle to remove trials from the public arena parallelled the fight against secret proceedings, the Star Chamber. In fact, the two are sides of the same coin. Arbitrary power wants no public witness to its private deliberations but needs all the hoopla it can get to legitimize its actions. The integrity and independehce of judicial proceedings serve to protect the accused from both arbitrary power and public prejudice. The purpose of open trials is to help assure observance of these protections, not to entertain or even to educate. The legitimacy of a legal system does not derive from immediate popular approval of court decisions. The vigilance of a free press is needed to prevent judicial abuse and the erosion of the legal protections of a fair trial, but not to add the pressure or popular clamor to the proceedings. Reasons for Canon 35 General entertainment and specific rights have never mixed well. Chief Justice Warren pointed out in Estes v. Texas that "In the early days of our country's development, the entertainment a trial might provide often tended to obfuscate its proper role." And he continued. citing other accounts: The people thought holding court one of the greatest performances . . . the country folk would crowd in for ten miles to hear these 'great lawyers' plead; and it was a secondary matter with them whether he won or lost his case, so long as the 'pleading' was loud and long. In early frontier America, when no motion picture, no televison, and no radio provided entertainment, trial day in the country was like fair day, and from near and far young and old converged on the county seat. The criminal trial was the theater and spectaculum of old rural America ... All too easily, lawyers and judges became part-time actors at the bar ... 12 When functions of public entertainment and civic responsibility shifted to the press, new problems emerged. Crime and court reporting were the big guns in the circulation wars of the 19th century. They were also weapons of the press on the way to establishing itself as the organ of business community rather than of local governments and parties on whose patronage it had to depend before. In that process, the press shook up some bloated and venal local administrations, police, and court systems. It also laid claim to conduct trials by newspaper for what James Gordon Bennett of the New York Herald called the "living Jury of the Nation," ignoring the essential contrast between jury box and arena. The rise of movies as competing mass entertainment made Hollywood the "sin capital" lucrative and lrrestible copy. Movie comedian Roscoe "Fatty" Arbuckle was charged with the rape and murder of a starlet in a hotel room in 1921. The accusation was instantly leaked. The arrest was staged for reporters. William Randolph Hearst said that the trial sold more newspapers than the sinking of the lusitania. The press coverage firmly established Arbuckle as "villain incarnate, a gross vulgarian of obscene appetites."13 The resulting public agitation and the threat of legislation forced the movie industry to start its Production Code. After three trials Arbuckle was found not guilty but was ruined and died in disgrace a decade later. The American Bar Association appointed a special committee in 1924 to curb "unwholesome tendencies" in news reporting. The committee reported in 1927 that "There can be no more opportune time than the present for the press to cease (continued on page 3) , I Louisville Law Examiner, April14, 1980 making vulgar amusement of our law enforcement institutions ... " Instead, however, crime photographers entered the courtroom, disrupted proceedings and sneaked pictures of convicted murderers dying in the electric chair.14 The 1935 trial of Bruno Richard Hauptman, accused of kidnapping the twentymonth old son of Anne and Charles Lindbergh, attracted an army of reporters and photographers. The American Bar Association called the Hauptman trial "the most spectacular and depressing example of improper publicity and professional misconduct ever presented to the people of the United States in a criminal trial." 15 The ABA passed Canon 35, a ban on cameras and microphones in the courtroom. But two more landmark cases had to exact their high price in public understanding and justice before the lesson sunk in - at least temporarily. They were the 1954 murder trial and conviction of Dr. Sam Sheppard and the 1965 swindle trial and conviction of Billie Sol Estes - both eventually reversed be-cause of massive, pervasive and prejudicial publicity. · In the latter case, the "circus atmosphere" prevailing at the trial, inevitable in the days of hot lights, heavy cameras, and massive cables, has received the lion's share of attention in causing the reversal of the conviction. Actually, however, other considerations, as valid today as they were then, if not more so, weighed heavily in the decision of the Court, as a few excerpts from Mr. Justice Clark's majority opinion will indicate: We start with the proposition that it is a 'public trial' that the Sixth Amendment guarantees to the 'accused.' ... It is said, however, that the freedoms granted in the First Amendment extend the right to the news media to televise from the courtroom, and that to refuse to honor this privilege is to discriminate between newspapers and television. This is a misconception of the right of the press . . . The television and radio reporter has the same privilege. All are entitled to the same rights as the general public ... As has been said, the chief function of our judicial machinery is to ascertain the truth. The use of television, however, cannot be said to contribute materially to this objective. Rather its use amounts to the injection of an irrelevant factor into court proceedings ... . . . From the moment the trial judge announces that a case will be televised it becomes a cause celebre ... The whole community, including prospective jurors, becomes interested in all the morbid details surrounding it ... And we must remember that realistically it is only the notorious trial which will be broadcast because of the necessity for paid sponsorship ... If a community be hostile to an accused, a televised juror, realizing that he must return to neighbors who saw the trial themselves, may well be led 'not to hold the balance nice, clear, and true between the State and the accused .. .'~ .. . . . We know that distractions are not caused solely by the physical presence of the cameras and its tell-tale red lights. It is the awareness of the fact of telecasting that is felt ... throughout the trial ... ... The impact upon a witness of the knowledge that he is being viewed by a vast audience is simply incalculable ... While some of the dangers mentioned above are present as well in newspaper coverage ... the circumstances and extraneous influences ... in the televised trial are far more serious ... A major aspect of the problem is the additional responsibilities the presence of television places on the trial judge. His job is to make certain that the accused receives a fair trial ... Our jduges are high-minded men and women. But it is difficult to remain oblivious to the pressures that the news media can bring to bear on them both directly and through the shaping of public opinion. Moreover, where one judge in a district or even a State permits telecasting, the requirement that the others do the same is almost mandatory. Especially is this true where the judge is selected at the ballot box. Finally we cannot ignore the impact of courtroom television upon the defendant ... A defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or city or nationwide arena. The heightened public clamor resulting from radio and television coverage will inevitably result in prejudice. Trial by television is, therefore, foreign to our system ... 16 Recent trends Foreign or not, its day has come. Memories of trials by newspaper and the fiascos of Sheppard, Estes, and lesser cases made most courts hold back, except in Colorado where the trial of Black Panther LaurenT. Wilson was televised in 1970. Then the drawing power of the Watergate impeachment hearings and the lure of sensational trials led to mounting media pressure on the courts. Murder cases were televised in the states of Washington, Utah, Nevada, and Indiana. In an Ohio test case, the defendant, charged with the rape and murder of a 9-year-old girl, was allowed to be hypnotized during the examination, creating high viewer interest in the trial. Hustler magazine owner Larry Flynt was shot during a recess of his televised trial. Other notorious cases, some violating unenforced laws and guidelines, added to the pressure. 17 The murder-robbery case of 17-year-old Ronney Zamora, televised during a oneyear "experiment" in the state of Florida, became a national media sensational because television itself was "on trial" when the novel defense charged it with inducing insanity through "involuntary subliminal intoxication." The ratings were reported to have exceeded those of the Johnny Carson Show. When Zamora was sentenced to life imprisonment, press reports claimed that television was "acquitted." The defendant, on the other hand, may have been ill served. In an unsuccessful attempt to obtain a new trial, distinguished criminal lawyers and a Dade County Criminal Court Judge testified that Ronney Zamora's defense became secondary to other interests served by the television coverage. 18 The current "experiment" in Iowa courtrooms specifies that a defendant or witness may seek to have video recording stopped "upon showing that harm would result." 19 How can a person involved in a trial know, let alone show, such a thing? Already a Florida District Court of Appeals has overturned a conviction because the judge allowed the trial to be covered against objection and without "a full evidentiary hearing on the possible effects of coverage."20 In another Miami case, the defendant appealed a $1.6 million judgment on grounds that the jury returned a "newsworthy verdict in hope and expectation that they would receive further television coverage." 21 Yet another aftermath of the Florida "experiment" is the first case headed for the U.S. Supreme Court in which the defendants claim that the presence of television denied them a fair and impartial trial. 22 The current offensive Soon after the Florida "experiment" was declared a success, television pr pared for the pig push. Camera crews are not journalists; they are union techr (continued on page Dean 's Dicta On Wednesday, March 12, 1980, the University of Louisville School of Law sponsored a debate between Professor James R. Merritt and Judge Charles M. Leibson on the related roles of theory and practice in the education and training of lawyers. This was not the first - and certainly, not the last - time this subject has been discussed by legal educators. From the time of the establishment ofl the Inns of Court in rriedieval England, lawyers have always beert concerned about the balance between academic and skills training in the preparation of members of the Bar. In colonial America, George Wythe, the first legal academician, taught law to Thomas Jefferson and other leaders of our young nation at the College of William and Mary. At Harvard Law School, Joseph Story developed a law curriculum in the 1830's that attracted a number of studen~ in-terested in the theoretical aspects of the Dean Harold G. Wren law. But skills training remained in the law offices, and most persons were admitted to the Bar after "reading law" . During the mid-nineteenth century, a number of law schools, including our own, were established to provide academic training for future attorneys. The lecture method was typically used to explain and analyze various fields of law. In the late nineteenth century, Christopher Columbus Langdell introduced his famous "case method" at Harvard. For many years the case method and the lecture method competed with one another, but in the 1930's and 40's, the case method became dominant in nearly every accredited law school. Throughout this period the emphasis in legal education was placed almost entirely on the theoretical aspects of the law. After World War II, the law schools introduced many skills training in both curricular and extra-curricular programs . Beginning with moot courts and law reviews, law schools extended their programs to include training in a variety of practical skills. In our law school, courses and seminars, client counseling, estate planning, trial advocacy, business planning, arbitration and many others were introduced. During the nineteen seventies, Chief Justice Burger, the American Bar Association, and many others expressed great concern about the need for practical training of lawyers. In 1978, our faculty increased the number of semester credit hours for graduation from eighty-four to ninety to some extent in recognition of the need for skills training. At the same time, the faculty introduced a required course in basic skills in the first-year curriculum. In my view, the introduction of these additional aspects to the law school curriculum has in no way jeopardized the fundamental theoretical training which every law student must acquire while he is in law school. Our school has sought to balance the theoretical and practical sides of legal education. The curriculum committee and the entire law faculty will continue to study the problem to make certain that we maintain a dynamic program, in keeping with the latest advances in legal education. Harold G. Wren Dean Circuit Court Judge Charles Llebson, left, and Prof. James Merritt, right, debated aspects of a legal education on March 12, 1980. "The mutual confidence on which all else depends can be maintained only by an open minclbnd a brave reliance on free discussion ." -Learned Hand Let us know your point of view. Letters to the editors should be typed and signed. T1le editors reserve the right to edit letters for space considerations and for clarity. 4 ' I.·J ,· .. · .·.. · 3 4 Louisville Law Examiner, April14, 1980 Ne"W" Placetnent Director Stresses Continuity by Tom Schulz "It is extremely important to have continuity for a placement office to be effective," Phyllis Liebson said soon after becoming the first "full-time" staff member of the law school placement office. A major factor Mrs. Liebson identified in achieving this continuity is to have the office run by a paid director: someone who can devote the time necessary to establish and maintain an effective service to students and alumni. Mrs. Liebson began filling that role on March 1, funding for her position being provided as a part of the Dean's budget for the law school. The current funds will run out June 30. After that the plans are uncertain. The current program, however, is at least a step in the right direction. Dean Harold G. Wren had said in his state of the law school address last semester that "One of the greatest needs of the law school at the present time is the necessary funding for an adequate placement program." Dean Wren also said in the same address that placement should be "placed in the budget as a line item as soon as possible." Though Mrs. Liebson's office hours are only from 9 a.m. to 2 p.m., Monday through Thursday, she is available for individual appointments if a student is unable to stop by during those hours. Kevin Renfro, a secondyear student, also works in the office under a work scholarship and is there Monday through Thursday afternoons and all day Friday. Mrs. Liebson's major goal is to establish an ongoing system, one that would continue from year to year. This would include files for student use on prospective employers, especially on firms and government agencies that have used the placement office in the past. Also included in her plans are files on individual students, their placement goals and their achievements. A placement officer is similar to a "middle man" or broker, trying to match interested students with the right firms, and interested firms with the right students, she explained. One of her projects in this respect is to attempt to prepare a list of those employers with interests in specific areas such as tax, criminal law, etc. She has contacted the Louisville Bar Association to get approval and information for this project. It is a matter of obtaining lists, she said. "Ninety per cent of the job is working with people," Mrs. Liebson said. One aspect of the job is to inform the student about the placement office, which is kind of a public relations job. Advertising the office's services to prospective employers is an equally important aspect. The most important service in this respect is the on-campus interviews which the office co-ordinates. Mrs. Liebson has had experience as a volunteer in a vocational office and has developed a background in vocational counseling. "I know what tools are necessary in seeking a job," she said. This is helpful in another area of the office's services, student counseling. Ideally this should begin when the student first enters law school with an aim towards identifying goals and defining the student's own skills. "Also important is to learn the steps in getting a job: writing a resume and developing interviewing skills. Interviewing itself is good experience," she said. The office also aids students in finding clerking jobs while still in school as well as finding jobs upon graduation. First-year law school students can guarantee themselves a commission as an Air Force officer and a position as an Air Force Judge Advocate officer through the Air Force ROTC Graduate Law Program. The law student enrolled in the Graduate Law Program completes all the requirements for the Air Force ROTC two-year program while attending the second and third years of law school. The Air Force ROTC program in· eludes academic classes and attendance at a six-week field training encampment during the summer before the second year of law school. The student must be enrolled as a first-year student. Students should contact Capt. Bill Hutchersonn at (502) 588-6576 on the Belknap Campus. Applications should be made by April 15. Selections are made each spring. Apply early. Applications will be accepted after April15 as long as individuals can be scheduled to attend field training the summer before their second year of law school. Sl1etl sttllle li!lllf •••• , ....... f••f•••·e After college, what will I do? That's a question a lot of young people ask themselves these days. But a two-year Air Force ROTC scholarship can help provide the answers. Successful completion of the program gets you an Air Force commission along with an excellent starting salary, a challenging job, promotion opportunities, and a secure future with a modern Air Force. If you have two academic years remaining, find out today about the twoyear Air Force ROTC Scholarship Program. It's a great way to serve your country and a great way to help pay for your college education. Air l~tr£e l~ttTt~ t;ate\vay t• a t;reat \\'ay •f l~lfe Placement Office Director Phyllis Liebson points to an area of Kentucky that is underrepresented by attorneys. Mrs. Liebson views the placement office as an integral part of the law school, a service to incomeing freshmen as well as to those looking for a job upon graduation and also a service for alumni, both those looking to hire and those looking for a change in positions themselves. She also points out the office is in a position to promote the school through its graduates and thus enhance the school's reputation. The reputational values is sometimes invaluable to the individual searching for a job. With the recent hiring of Mrs. Liebson, the placement office took a step forward. The office began in 1976 as a part-time venture under the direction of law student Dorothy Pitt. Her position was funded by Judge Marlin Volz who had always headed an informal placement service at the law school. The program continued with Judge Volz's law clerk devoting about one fourth of his time as placement officer. Susie and Bob McBeath served in this position successively. The Student Bar Association under presi-dent Matthew Welch was successful in obtaining two tuition remission scholarships for students to work in the office. , Each of the scholarships had a 90-hour work limit. Kevin Renfro is working under' the second of these scholarships. Gerald Schray held the previous one. The SBA has also published the senior placement bulletin which had 1 10 participating seniors this year. Mr. Welch said that Dean Wren had asked the SBA for money to fund Mrs. Liebson's position. Mr. Welch then discussed the matter with Dr. Edward Hammond, VicePresident of Student Affairs, in charge of the University Placement Office. Dr. Hammond offered to fund the position but stipu~ lated that the person hired would be under his direction. Mr. Welch said Dr. Hammond told him that it is "the Administration's job to find placement." Dean Wren declined Hammond's offer '"and instead fundedthe position through-the law school's budget. Mrs. Liebson, in discussing the placement office's future, said, "I hope it continues." News-In-Brief Phi Alpha Delta fraternity recently elected new officers for the 1980-81 year. The officers are: Timothy Scott, Justice; Gail Kaukas, First Vice-Justice; Antonette Logar, Second ViceJustice; Jerrold Perchik, Treasurer; Renona Browning, Clerk; Lucy Helm, Marshall; and Scott Fur kin, Recorder. The Delta Theta Phi fraternity has announced its officers for the 1980- 81 year: Sharon Conyer, Dean; William Parks, Vice-Dean; Linda Thomas, Clerk of the Rolls; Charles Mullins, Ritual; Patricia Kerlick, Tribune; Joseph D'Ambrosio, Bailiff; and Phillip Castagno, Exchequer. CORRECTION In the March edition of the Examiner, the evening Vice-President of the Moot Court Board Sharon Welch was mistakenly identified as Elenor Welch. The Examiner regrets the reporting error. Essay Contest Announced Submission for a third Alan Y. Cole Law Student Essay Contest on "The Exclusionary Rule: Do We Really Need It?" must be postmarked by June 30, 1980 and sent to CJS staff offices. Only students enrolled in ABA-approved law schools may compete for the $300 cash prize. Candidates for advanced law degrees and ABA employees are excluded. Entries may consist of a discussion of case law, litigation techniques, or any legal discourse which might further advance this field of law. Papers prepared for the 1979-80 school year are eligible, but published articles or those which have been accepted for publication are not. Each entry must have only one author; be double or triple spaced and not exceed 50 pages, including footnotes. It must include the author's name, permanent and temporary addresses and telephone numbers, name of law school and year of the student. The contest is named in honor of Alan Y. Cole, Washington, D.C., in recognition of his outstanding contributions to the Section as 1976-77 Chairperson and as a longtime Council member. Submissions will not be returned. The winner will be selected by a special threemember judging panel of Section volunteers and will be announced in July. Send entries to: Coordinator, Law Student Essay Contest, ABA Criminal Justice Section, 1800 M Street, N.W., 2nd Floor South, Washington, D.C. 20036. Louisville Law Examiner, Aprill4, 1980 5 Delahanty Sets Priorities For SBA by Elizabeth Ward Kevin Delahanty, the newly elected President of the Student Bar Association, feels the law school is faced with several problems and has set the priorities for his administration. As it was under the previous SBA administration, Mr. Delahanty stresses that the "first priority right now is a permanent placement office and a permanent placement director. (Former SBA President) Matthew Welch has obtained a lobby effort with the administration and a temporary placement director, Phyllis Leibson. At this time, we are discussing with Dean Wren and Dr. Hammond, who is Vice-President of Student Affairs for the University of Louisville, the possibilitr of the University supplying some funds for a permanent placement office and director." At a recent meeting with Dr. Hammond and Dean Wren, Dr. Hammond suggested that the University of Louisville might find some money in federal grants to fund a permanent placement office. However, this money would be contingent upon moving the law school's placement office to the Life Planning Center on the other side of campus. Dean Wren disapproved of this plan, expressing concern that lawyers would not utilize a placement office that was not directly connected with the law school, that is, located in the law school building and under control of the law school. "Matt and I suggested that perhaps a compromise would be in order and that the placement office could be located within the law school and controlled majorally by the law school with the University having some control over it," said Mr. Delahanty. "We did not come to any consensus of opinion, with Dean Wren sticking with his position that the placement office should be under the direct control of the University of Louisville Law School. Dr. Hammond maintained his position that in order to receive funds from the general University, he would have to have a placement office in the Life Planning Services with the overall University Placement Services. We have a meeting scheduled in April in which all parties concerned will attend to further our plans for a compromise. "Dean Wren for the last four years has submitted in his budget proposal for the Law School funds for a permanent placement office," Mr. Delahanty continued. "However, Frankfort has consistently cut the overall funding of the law school budget and Dean Wren has insisted that there isn't enough money to fund a permanent placement office after these cuts. He is given an overall figure, which he allocates according to his priorities and thus far one of his priorities has not been a permanent placement office. I believe that the students need and deserve a permanent placement office. I don't care where the funds come from as long as we have a permanent placement office in the law school under control physically at this point by the law school. However, if in order to get these funds we have to allow the Dean or Dr. Hammond some control such as a telephone hook-up with the Life Planning Services, that's fine with me, as long as the placement office stays in our building because a lot of us do not have the time to go across campus in between classes and utilize their services." Mr. Delahanty believes that if funds are contingent upon moving the placement office to the Life Planning Services, he would not accept them. In the near future, the ABA is expected to promulgate recommendations that a permanent placement office is an ABA requirement for all accredited law schools. "The second SBA priority," explained Mr. Delahanty, "is to change the grievance procedure so that law students may utilize this procedure to get rid of frustrations or to make suggestions on improvement of this University. The model grievance that we have on file in the Dean's secretary's office is not approved; therefore, it is not the grievance procedure that we must go to. I have learned through John Garner, President of the Student Government Association, that the University of Louisville Law School could not submit their proposal to the University of Louisville Grievance Procedure. Therefore, the grievance procedure we have upstairs is not in effect and any grievances we have will have to be submitted to the University. Our procedure and the University's are very similar but I'm not satisfied with either of them so this summer I and the to-be-formed grievance procedure committee will work to submit a proposal and change our grievance procedure. Our goal is to establish a policy which will permit a student to go through an informal grievance procedure to the Assistant Dean with our grievance, let him judge the merit, and then go on up to the Dean so he can judge the grievance itself." "A third priority at this time is more minority representation in this Law School. At this point in time, we are not in accordance with the Affirmative Action Program at this school. We have approximately 500 students in this Law School and there are only 5 to 6 minority students attending. This year 2 of those minority students will be graduating leaving 3 black students in a total population of 500 law students. This is grossly out of proportion with the minority representation we should have according to the Affirmative Action Program. If we don't make an effort to admit more black students, more Puerto Ricans, or more minority students, we will be under direct attack of the ABA. We admitted 3 minority students last year and all 3 flunked out. I don't believe there is any racial discrimination against black students in this Law School. However, I do believe there must be a greater effort to not only recruit black students but to form some type of program so that it will enable them to compete with white students on the law school level. These programs will include an awful lot of work such as tutoring services, teaching people how to review and how to take notes in the law school. Other facets of the program, I cannot come up with now, but I intend to work on it throughout the summer. I have talked to black students in this school and have learned that there is an 80 percent to 85 percent attrition rate in minority students. This may be due to cultural differences; however, I believe that it is not. The University of Kentucky has a tremendous minority recruitment program and they have a great percentage of minority students at their law school. I can't believe they can succeed in training black lawyers for the black community and the University of Louisville can be so inadequate. "My fourth priority is the grading system at the this University. This is one of the most hotly contested issues in the law school. You cannot go throughout a .day without hearing at least one sophomore or one freshman griping about the low grades received at this University. In my first year we started with 105 students. Out of 105 students, approximately 75 were left at the beginning of the second year. Still teachers persist in grading on a A, B, C, D grade curve. I don't understand how they can do that when they already flunked out 30 percent of our class. We have proved that we're the A, B, and C students. We are here and we are making an effort to learn law and I don't think we should be arbitrarily considered D students, especially after we have gone through the first year. We are graduate students and we have proved ourselves in college. We have proved ourselves on the LSA T scores and I believe we deserve to be graded not on an automatic curve system but according to our intelligence. There are a number of grading systems available. Professor Abramson suggested last year, after reviewing the Bar results, that this school should change its system to a percentage system. I think this would be more fair. I think students who received D's that are 64 percent, 1 point from a C, are aggrieved by getting this D because it lowers their grade point no matter if it's a 60 or 64. A grading system utilizing a proportion or percentage would more accurately reflect our knowledge." Mr. Delahanty also commented on his expectations of cooperation from the law school administration during his tenure as SBA President. "What I hope is that they will work with me in an effort to improve the law school. I believe that we have a professional administration dedicated to improving our legal education; however, I believe that they have not listened to the student body and the views we hold and are therefore holding one-sided viewpoints on most of the issues. "I believe that the professors are an excellent faculty and they probably place most of their emphasis on training students for the legal profession. As far as I can tell, most are at least willing to listen to student views and a number actually have been trying to improve the school. I point out Professor Abramson, especially, as holding views very similar to what we · would need and what the students desire: a more accurate grading system, fewer hours for freshmen. That the faculty and administration of the school are dedicated to improving the legal education is shown by their involvement with continuing legal education program, seminars with legal counseling and legal training. Not only are they trying to give us basis and theory of the law, but they are also trying to train us for the legal profession before we actually get out into the real world and apply our knowledge. That is to be commended. However, the faculty and the administration seem to think that in order to facilitate getting proposals or policies through that it is easier and faster just to avoid the students' opinions. They believe that we are just going to mess up the process; that we are going to drag and after they can adequately protect and Improve our law school without us. Until the students actually have more contact with the administration and teachers and have input with the policies of the school, we will not be able to get this law school to better itself and compete with the better law schools. The average student sees the faculty not as a person with whom he can go to and talk, but is scared of the professors, basing his viewpoints on only in-class interaction where the professor is all-powerful, allknowing. (Third-year student) Jim Seiffert · is trying to implement a new program having faculty advisors for a small number of students. The students are to schedule meetings with the professors every once ·in a while so they can discuss problems with the school, how to go about preparing for their classes, how to schedule their subjects of designated bar courses. When the students feel the professors are on their side and that they are there to help them, our University will improve. New SBA officers are: Jude Clark, Evening Vice-President; Teri Hasenour, Treasurer; Mike Luvisi, Secretary; Kevin Delahanty, Presi-/ dent; Ray Haley, Vice-President. (Not pictured is Darrel Coffey, LSD/ ABA Representative.) j I I 6 Louisville Law Examiner, April14, 1980 Aprile Addresses Trends In Criminal Procedure any young lawyer who has made it through law school and passed the bar deserves the best by Greg Yopp Recent weeks have not approximated the basic nine to five routine for Assistant Deputy Public Advocate J. Vincent Aprile, II of the Commonwealth of Kentucky's Office for Public Advocacy. Mr. Aprile, who is also a University of Louisville School of Law Lecturer, was in Providence, Rhode Island on February 25 presenting a three hour continuing legal education program and then on March 26, he was in Washington, D.C. appearing before the Supreme Court of the United States. At the invitation of the Public Defender of Rhode Island, Mr. Aprile presented his continuing education program to the trial and appellate public defenders as well as members of the private defense bar in Providence. The major topic of the presentation was "Hypnosis As A Method of Reviving A Witness's Memory,:• which focused on a defense strategy to combat the proliferation of hypnosis as a law enforcement tool in both the investigation and prosecution of crimes. "This is a crusade that I am very active ·in," said Mr. Aprile. "I'm very frightened of the misuse of hypnosis that is taking place in the law enforcement area and the criminal justice system." According to Mr. Aprile, from five to eight years ago people started attending special seminars lasting from three to four days where they studied how to be a nontheraputic hypnotist. "What these people believe is that memory is like a video tape; that everything that happens to you, you are storing like you are taking a picture of it and it can be retrieved." Under hypnosis the subject blocks his conscious thoughts and retrieves suppressed memories from his subconscious. But, it has been proven clinically that subjects under hypnosis are highly suggestible. They want to help and as a result may provide answers they think the hypnotist wants to hear. They honestly believe that what they have come up with is actually the truth. Mr. Aprile learned much of what he knows about hypnosis from one of the nation's leading experts on the subject, Dr. Martin Orne, who is a University of Pennsylvania psychiatrist. According to Mr. Aprile, Dr. Orne believes that only qualified doctors should employ hypnosis for susequent court room use rather than "hypno-investigators" who in essence create an eyewitness whose new found testimony will later be used in court. "In hypnosis for theraputic reasons it is true that the doctor hypnotises you and asks you to recall an event, but a therapist doesn't care if you recall reality or fantasy. Whatever you believe and are suppressing, if he can get that out, he can do away with the side effects of it. But it does not have to be reality. The hypno-investigators don't realize that and, as a result, they believe that anything that can be brought out is true," said Mr. Aprile. "Under hypnosis you will manufacture details. And the really incredible thing is you will become locked in. The right of confrontation and the right of cross examination under the Constitution goes down the drain." To combat the use of such hypnosis, Mr. Aprile advocates the use of a simple discovery motion whenever there is going to be an eyewitness testimony in a case. "They are using it. My big fear is we don't know when they are using it. " The remainder of Mr. Aprile's presentation was devoted to a discussion of the use of experts in reading comprehension to challenge the validity of a Miranda waiver and the defense use of a "sanity" defense. The challenge of the Miranda warning is made on the basis of readability. The idea is to bring in an educational expert to VIncent Aprile testify as to the level of educational reading and listening oral comprehension ability necessary to understand waiver. "Then see what kind your client really has and show that he could not have made a knowing, intelligent, and voluntary waiver because he couldn't comprehend the words," said Mr. · Aprile. On March 26, Mr. Aprile presented an oral argument before the Supreme Court of . the United States on behalf of the petitioner in David Rawlings vs. Commonwealth of Kentucky. "It's a very crucial case in the history of the Fourth Amendment and I hope it's not one in which I turn out to be a grave digger as opposed to a resurectionist," said Mr. Aprile. Discussing the appearance, which is his third before the Court, Mr. Aprile said, "I was happy with the argument in the sense that it was a very spontaneous thing. I talked about five minutes and after that it was all questions. They put me through the paces, there is no doubt about that. But that was much better than going out there and putting on a show. They got my show when they read my brief." Recounting his law school days at the University of Louisville where he was a member of the National Moot Court team, and relating it to what he knows now, Mr. Aprile said, "if you really get involved in the moot court program it can be a big help to you in appellate argument later on. It is a real model of what appellate argument is all about." There are no finer law books than West books. They are edited and printed for the practicing lawyer. They meet practical needs; answer practical problems, and they always offer maximum ease of movement from one publication to another through the Key Number System, citations and library references. If you're a student soon to practice law or already a seasoned practitioner, be sure you give yourself the advantage of the best tools an attorney can have ... West law books. O.K. CURRY representing WEST PUBLISHING COMPANY 584-5058 SBA President Kevin Delahanty and Matthew Welch present a composite picture of the third-year graduating class to Dean Harold G. Wren. WOODY'STA &ALE GARDEN brook & burnett THURSDAYS IN APRIL Pitchers of Draft Beer $1.50 Congratulations Cards NCAA Champs Congratulations Woody's A. C. Intramural Champs Louisville Law Examiner, April14, 1980 7 (continued from page 3) cians hauling and handl ing costly equipment whose every move and minute must be carefully budgeted. ABC's Steve Tello, who had run the broadcast pool for the grol}ndbreaking Zamora affair, was assigned to the biggest show yet in the line of legal spectaculars, the multiple college-girl sex murder trial of Theodore Bundy. With its lurid and intimate details and type casting fitting the dramatic media pattern, Bundy became the first nationally televised courtroom-originated reallife horror show of the new era. It cost ABC an estimated $2 million to field the crew and carry the event, a good investment by program cost and ratings standards. The judge, pronouncing his third death sentence, called the coverage, "the most accurate reporting of a trial. " 23 Bundy denounced the coverage and claimed that he had been victimized by media " sharks." Broadcasting magazine declared "VERDICT IS IN FAVOR OF TV IN BUNDY TRIAL." 24 Emboldened by their successes and impatient with legal inhibitions, the media launched a two-pronged offensive. Typical of one approach was a "First Amendment Survival Seminar" sponsored by the National Association of Broadcasters and other organizations in Washington on March 10, 1979. Jack Landau, director of the Reporters' Committee tor Freedom of the Press, told the meeting that courts think they are "above the laws of the country." The press should tight back "on our own turf," he said, referring to media campaigns and coverage. A Supreme Court correspondent urged his colleagues: "Don't try to join the system - beat it." He thought that "Time has surely come to use tricks" such as hidden recorders and parabolic microphones to pick up court proceedings. 25 A few months later the industry moved to set up a " First Amendment defense" insurance program to cover legal fees in cases involving access to information. 26 The other prong of the offensive is more circumspect. An example was the careful staging of a demonstration of "cameras in the courtroom" at the August 1979 Dallas meeting of the American Bar Association. Invited by the ABA, featuring a debate and a mock TV trial, the demonstration was designed to show, in the words of National Association of Broadcasters President Vincent T. Wasilevsky, " how effectively the electronic media can operate without any interference with the dignity and decorum of the proceedings." 27 Steve Tello of Zamora and Bundy fame was again pressed into service. Learning a lesson from Atlanta, camera crews donned pin stripes and were reported "almost indistinguishable from conservatively dressed ABA members." Cables were tucked down air conditioning ducts. The formal briefs used in the mock appellate proceedings were included in a booklet entitled "Cameras in the Courtroom: A Presidential Showcase Program" and distributed at the convention. Broadcasting magazine headlined the affair "TV in its Sunday Best for ABA demonstration," and concluded: "No muss, no fuss: It was an example of what television technology and professionalism can do in 1979." 28 Conflicting missions But dignity, decorum, technology, and professionalism are not the issues. Televi sion in its "Sunday best" is an institution with its own goals and mission. Collaboration with media, when not strictly codified, is a cottage industry in trading confidences. Those who have played the game the longest describe its rules in a study of congressional committee hearings and the media: (1) accept reporters' detmitions of what constitutes news, (2) accommodate inquiries, (3) ask tor anonvmity tor staff members (4 tl) to get some cred t for the boss. 29 Te1ev1sing Con res u der Congress1ona1 rather than television industry control predictably detracts from its entertainment values. The camera is usually trained on the Speaker's platform and on the tables where f loor leaders operate. It rarely it ever picks up a dozing member, empty seats, reaction shots and other potentially embarrassing sights. The networks that campaigned tor coverage under their control now found only a few snippets of the video feed suitable tor their purposes. In the first SIX months of gavel-to-gavel coverage, ABC and NBC used about 12 and CBS 19 pieces. The potent ial of audience appeal in selected trials is much greater. Already sex, gore, madness, and bizarre scenarios dominated the real-lite television courtroom scene, using real trials to confirm the fantasy image of justice on television. With the prospect of TV rather than the courts calling the shots, it may be instructive to consider the record of the press in using its rights to defend the rights of others, especially those with no money, clout, or popular appeal. A study of metropolitan newspapers' coverage of First Amendment cases be.fore the Supreme Court shows considerably greater concern with press rights than with the other basic freedoms. The study suggests that press advocacy of freedom is largely self-serving and could not be expected to help uphold rights inimical or irrelevant to its own. 30 The press also has a poor record of using information made available by the courts. Of the most significant verdicts reached by the California Supreme Court and released to the press, a sample of 10 state dailies reported one-fifth. Only conflict on the court helped draw press attention to a case.31 The first time the media ever paid sustained and compelling attention to the U.S. Supreme Court, even going to the extent of serializing the story, was the appearance of the personalized account of a thousand leaks, The Brethren by Bob Woodward and Scott Armstrong. 32 In the most sensitive area of citizens' rights, the area of crime reporting, the media work closely with the police and generally follow what one survey of research calls "the police version of crime."33 Most studies agree that crime news generally gives a misleading and prejudicial account of the frequency and nature of crime in a community34 and that such coverage provides the media "with a vehicle for communication to readers of the necessity for strong social controls."35 Broadcast coverage is, if anything, the most slanted toward the police view of due process, especially since the minicam gave crews the ability to follow police Ups to the field and to concentrate on the violent and the spectacular. A 14-week survey of community coverage found the programming "often arbitrary, superficial, or both," a casualty of "the so-called 'realities' of the TV Industry ... " 311 AT THE POINT OF "0 RETURN . Television presents a coherent world of Images and messages serving Its own institutional Jnterests. The question is whether the judiciary should be enlisted to add further credibility to media mythology. Plugging courtrooms into the television system can make them appendages of that system. Once televised trials attract a large national following, the process will be irresistible, cumulative, and probably irreversible. · The scenario unfolding now is what Chief Justice Warren warned against when he wrote with the majority in Est~s .v. Texas that "the tel~vising of criminal trials is inherently a denial of due process." Believing that the case at hand was only "a vivid illustration of the inherent prejudice of televised criminal trials," Warren wished to "make a definitive appraisal of television in the courtroom." In doing so, he predicted, with uncanny foresight, the entertainment pressures upon the selection and treatment of trials; the impact of notoriety upon participants, including jurors returning to their communities; the problem of impartially re-trying a case after wide national exposure; and the likelihood that defendants who have attracted public interest and find their " trial turned into a vehicle for television . . . are the very persons who encounter the greatest difficulty in securing an impartial trial even without the presence of television." Chief Justice Warren concluded that " the television industry, like other institutions, has a proper area of activities and limitations beyond which it cannot go with its cameras. That area does not extend into an American courtroom . . . Where the lives, liberty, and property of people are in jeopardy, television representatives have only the rights of the general public, namely to be present, to observe the proceedings, and thereafter, it they choose, to report them."37 There is no doubt that, whatever its general social functions, television has enriched the horizons of many who have been out of the cultural mainstream ever since the coming of print-oriented culture. Television can also spread occasional superb insight and enlightenment. England's BBC has broadcast the trials of France's Marshal Petain, of the Irish patriot Roger Casement, and of the Chicago Seven before Judge Hoffman. U.S. networks aired "A Case of Rape," "The Rosenberg Case," "The Execution of Private Slovik," and the "On Trial" series of historical cases. These were all dramatic enactments, with occasional documentary footage, trying to go behind the scenes and to illuminate the invisible but all-important principles of justice in a calmer historical perspective. Instant telecasting of live trials - television at its spontaneous best - is likely to achieve the opposite. The political opportunities inherent in the shifting balance of powers will become more and more compelling. Now about 10 percent of the electorate can identify any judicial candidate during an election. A television trial can easily multiply that tor the chosen candidate. (Will others ask for equal television trial time?) As a system of mutual accommodations and payoffs develops, controls and inhibitions are likely to fall by the wayside. Neither history nor existing research support the contention that the addition of instant video spectacle to current court coverage would enhance fairness, freedom, public understanding, or needed court reform. The record reflects a history of institutional cross-purposes that the addition of scenes of real-life courtroom drama selected and edited for general television audiences is more likely to magnify than to rectify. Only an immediate moratorium on televising trials can provide time and the opportunity for responsible action. In the face of demonstrated conflicts and incalculable risks, the burden of proof must shift from the potential victims to the proponents of trials by television. It is with some trepidation that I even suggest research lest it become an excuse for pressing forward " until all the data are in." The research cannot take short-term overt manifestations and opinions at face value. Unless it investigates the enduring inst itutional consequences of sustained exposure to televised trials, it is worse than no research at all; it becomes a windowdressing for foregone conclusions. A two-stage design may provide the framework for meaningful investigation. Stage 1 would be the reliable and objective analysis of a representative sample of televised trials and segments of trial s. Stage 2 would be a systematic assessment of the relevant conceptual and policy consequences of exposure to these telecasts. To continue toward a national system of television t rials risks passing the point of no return. Research beyond that point is a waste and an illusion. However, coupled with a moratorium, research on a appropriate scale would be a responsible and pioneering way to build a basis for future decisions. The research would systemat ically test relevant conceptions and behaviors of participants and members of their communities and, most importantly, it would assess conceptions of the judicial process that television trials cultivate in the minds of the viewers. Without such research, and unless the results warrant further action, the interests of justice and the rights of citizens are best served by a flat "No" to trials by television. 10. Francis Haskell, "Yesterday's Today Show," The New York Review of Books, October 12, 1978, p. 55. 11 . The New York Times, June 25, 1979. 12. Cited in Mass Media and the Supreme Court, edited by Kenneth S. Devol. New York: Hastings House, 1971, p. 318. 13. Stephen Zito, "Hollywood Versus the Press," American Film, May 1978. 14. Leona Floren, "The Camera Comes to Court," Freedom of Information Center Report No. 396, University of Missouri, October 1978. 15. William E. Francois, Mass Media Law and Regulation, Second Edition. Columbus, Ohio: Grid, Inc., 1978, p. 272. 16. Devol, p. 313-318. 17. For a detailed account see Frank W. White, "Cameras in the Courtroom: A U.S. Survey," Journalism Monographs No. 60, April1979. 18. From a personal communication by Joel Hirschhorn, one of the attorneys testifying in the case. 19. The United States Law Week 12-4·79, 48 LW 2383. 20. Freedom of Information Digest, University of Missouri, September-October 1979, p. 1. 21. Broadcasting, October 17, 1977, p. 25. 22. Chandler and Granger v. State 366 So.2d 64 (FLA. 3rd DCA 1979) Appeal dismissed, cart. denied, public question moot, So. 2d (FLA. Sept. 27, 1979) Stay of mandate granted Supreme Court S.Ct. (Jan. 11, 1980)(Powell, J. in chambers). 23. Variety, October31, p. 73. 24. August 6, 1979, p. 29. 25. Broadcasting, March 26, 1979, p. 104. 26. Broadcasting, OctoberS, 1979. 27. Broadcasting, July 30, 1979, p. 69. 28. Broadcasting, August 20, 1979. 29. Susan H. Miller "Congressional Committee Hearings and the Media: Rules of the Game," Journalism Quarterly, Winter 1978, p. 659. · 30. F. Dennis Hale, "A Comparison of Co¥erage of Speech and Press Verdicts of Supreme Court," Journalism Quarterly, Spring 1979, p. 43. 31 . F. Dennis -Hale, "Press Releases vs. Newspaper Coverage of California Supreme Court Decision," Journalism Quarterly, Winter 1978. 32. New :York: Simon & Schuster, 1979. 33. Sanford Sherizen, "Social Creation of Crime News; All the News Fitted to Print." In Deviance and Mass Media edited by Charles Winick, Sage Publications, 1978, p. 222. ~- See, for example, E. Terrence Jones, "The Press as Metropolitan Monitor," Public Opinion Quarterly, 40;1976, pp. 239-244. 35. Matthew Lippman, "The Law of Contempt: Fair Jury Trials and Free Press in Australia," Australian ' SCAN; Journal of Human Communication, No.5, December 1978-May 1979. · 36. From a survey by the Lab for Public Affairs Television at the New School's Center for New York City Affairs, reported in Broadcasting, February 20, 1978, p. 60. 37. Devol, pp. 317, 320,321 . I I I 8 Louisville Law Examiner, Aprill4, 1980 Journal of Family Law Articles Appearing in Vol. 18, Number 2 • The Proper Role of Psychology in Child Custody Disputes . . . . . . . . . . . . . . . . . . . . . . . . . by Litwack, Gerber and Fenster • The Supreme Court's View of Marriage and the Family: Tradition or Transition? . . . . . . . . . . . . . . . . . . . . . . . . by Peter Riga • Legal Aspects of Artificial Insemination .. by Jeffrey Shaman Book Reviews • Unmarried Couples and the Law . .. .. .. .. by G. Douthwaite • Having Babies .. . ... ... ... .. ...... .. by Charles Kindegran Notes • Home Instruction: An Alternative to Institutional Education Issues Presented by Analysis of a Representative Case: • Consent to Adoption as • Appointed Counsel in Paternity Abandonment Action • Parental Consent for Minor's • Damages for Mother's Anxiety Abortion About Injury to Fetus • Choice of Surname of • Parental Consent to Search of Child Child's Property • Notice to Father in • Infant's Action for Wrongful Guardianship Action Life Summaries of Over 50 Recent Cases in the area of Family Law Mail Orders to: Managina Editor Journal of Family Law University of Louisville School of Law Louisville, KY 40208 D Vol. 18, No.2 ($4.00) D Vol. 18 ($15.00) Name _____________________________ __ Address----------------------------- City _______________ State ____ Zip A Quarterly Publication of the University of Louisville School of Law Congratulations to Woody's Athletic Club: U of L Intramural Basketball Champs Louisville Law Examiner School of Law University of Louisville Louisville, Kentucky 40208 Non-Profit Organization U.S. POSTAGE PAID Permit No. 769 Louisville, ~y John M. Harlan Loui' D. B'Ondei' f' . Louisville \, Law Examiner Volume 5 Number6 April 14, 1980 Prof. Irving Younger lectures on the law of evidence ... page 1 The School of Law has a new placement office director •.. page4 In the photo at right, Prof. Abramson takes advantage of the Spring weather, holding his Advanced Criminal Procedure class in the law school's courtyard.
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Title | Louisville Law Examiner 5.6, April 14, 1980 |
Alternative Title | Law Student Publications |
Contributors | University of Louisville. School of Law |
Description | The Louisville Law Examiner (1975-1991) was the second of three official University of Louisville School of Law student publications. |
Searchable Text | Louisville Law Examiner Serving The University of Louisville School of Law Community Volume 5, Number 6 Louisville, Kentucky, April 14, 1980 Law School Fields Two Teams In National Competition by Pat Chism After defeating an Ohio State Law School team by a large margin, a team from the University of Louisville School of Law in the Sixth Circuit Moot Court Competition fell before the eventual winner, Capital University of Columbus. The competition was held at the University of Akron on March 7. Stephanie Miller and Matt Livingood comprised the Louisville team, which was accompanied by facultyadvisor James J. Ragan. "We beat ourselves in the second round," said Mr. Livingood. "The others were less able to think on their feet, but they had reviewed the case so much that their responses were automatic. We think better on our feet. We just came up short on the questions." Prof. Ragan agreed that the Capital team was "finely honed. Capital places a great deal of emphasis on appellate argument. They had probably argued this particular problem ten to fifteen times before they came to the regional." Ms. Miller said, "It was like being up against a bunch of robots." But Prof. Ragan felt that they measured up well against the other teams. The two teams from Capital finished first and second in the Circuit competition. They both go on to participate in a national competition to be held in San Francisco during the national ABA convention in August. Twenty-one teams competed in Akron, with most being from Ohio. The team from Louisville and one from the Chase School of Law were the only teams representing the state of Kentucky, said Ms. Miller. The competition is sponsored by the Law Student Division of the ABA. Each team was assured two rounds. Finalists were determined by a "power pairing" approach and, if a team won both rounds, it automatically advanced. The vacancies in the field of eight semi-finalists were filled by the teams with the highest point differentials. U of L's team defeated Ohio State by 33 points and lost to Capital by 10 in a split decision, making their differential 23 points which was not enough to advance. "I do it because I enjoy it," said Mr. Livingood, in commenting on the competition. ''I think people are selling themselves short if they don't try out for these types of things. I know for one thing, it is looked on favorably on resumes." Mr. Livingood has become accustomed to appellate competition, as this is his second year on the Sixth Circuit competition, and he has also participated on the National Moot Court team from U ofL. "I got into it mostly because I have a fear of speaking," said Ms. Miller. "I knew I would have to get over it. It is better to do that now than in an actual courtroom situation." "What is helpful for people in there for the first time is to know that everyone else up there is as scared as you are," she said. "After it was over I was so hyped-up that I wanted to get in there and argue it again. We didn't get much sleep so I guess I was running on pure adrenalin." The problem involved nine constitutional issues and was argued as a case of first impression in the "court." It dealt with a private contractor who was building low income condominium units. The city condemned the property they were building on for a sewage plant, motivated, claimed the builder, by discrimination to prevent the project. The city counterclaimed saying they had a right to condemn, and that the units were to have an illegal racial quota anyway. A standing issue was also raised. The teams were given opinions of a district court and a court of appeals. They had to research the issue from there for the "Supreme Court" argument. "I learned how to research a case in the nitty-gritty," said Ms. Miller. There were only four people who tried out for the team this year. Prof. Ragan attributed part of the poor turnout to the timing of the competition. In the future, the Moot Court Board plans to promote it more, he said. Mr. Livingood felt it was a matter of developing school pride in this aspect as the Ohio schools have done while Ms. Miller said that having two teams from the school would give the school a much better shot at winning. Client Counseling Team by Craig Bell On March 8, 1980 the School of Law was also represented by a team composed of second-year day-division students Ray Haley and Ernest Caposela in the regionals of the National Client Counseling competition held in Lexington, Kentucky. The event, which is sponsored by the American Bar Association for the purpose of exposing law students to the problems an attorney may face while counseling clients, attracted about 120 law schools to the competition nationally. According to Mr. Caposela and Mr. Haley, they learned of the competition from Professor Marlin Volz through his Legal Counseling seminar. Prof. Volz served as the team's advisor and provided video tapes of past competitions for the team to observe so that they would be familiar with the format of the event and have some idea of what to expect in the competition. He also arranged for a number of attorneys to discuss client counseling problems with the team over dinner at Masterson's Restaurant. Mr. Haley and Mr. Caposela felt that time limit restrictions were a major reason that they were eliminated in the first round of competition by Thomas Cooley Law School of Detroit, Michigan, which went on to win the regional competition. The problem faced by the team involved giving legal ~dvice to a widow regarding business partnerships, decedents' estates, and ethical considerations. One psychologist and three attorneys served as judges for the event. Mr. Haley believes that a great portion of the competition deals with the need of an attorney to present a theatrical-like performance to the client and that making the client feel comfortable while talking to the attorney is of primary importance. Both Mr. Caposela and Mr. Haley stated that the competition was very worthwhile and expressed a hope that more U of L law school students would become involved in the competition next year. Matt Livingood and Stephanie Miller represented the School of Law in a Sixth Circuit Moot Court Competition held on March 7. Ray Haley and Ernest Caposela participated in a Client Counseling competition held on March 8. Prof. Marlin Volz, center, served as the team advisor. Circulation 4100 Irving Younger Prof. Younger Gives Lectures On Evidence On April 10, the Louisville Law Forum sponsored two lectures by Cornell Law School Professor Irving Younger. Prof. Younger is presently the Samuel S. Leibowitz Professor of Trial Techniques at Cornell. Because of his wide-ranging experience in courtroom practice. Prof. Younger is a nationally respected authority on the subject of evidence. He is chairman of both the Trial Advocacy Section of the American Association of Law Schools and the Committee on Teaching of Trial Advocacy for the Litigation Section of the American Bar Association. In addition to previous faculty positions at Harvard and Columbia University Law Schools, Prof. Younger served for several years as an Assistant U.S. Attorney in New York and later as a Judge of New York City's Civil Court. He is a 1958 graduate of New York University Law School where he served as editor-in-chief of the law review. During his first lecture at I :00 in the Allen Courtroom, Prof. Younger delivered a spirited, step-by-step account of the famous espionage trial of Alger Hiss. He discussed each phase of the evidence that had been presented, pointing out particular impeachment techniques used against some of the 112 witnesses who testified, and ended with an animated summation for the prosecution. At 8:00, Prof. Younger addressed a specific aspect of trial practice evidence, the examination of expert witnesses. He emphasized that the "cross-examination of an expert should be fun rather than intimidating ... If you don't bloody an expert every time you have the chance on cross-examination, shame on you ." A reception was held in the Cox classroom after the lecture. The Law Forum also hosted a dinner for Prof. Younger before his second lecture. Among those persons who attended were Kentucky Supreme Court Justice Marvin Sternberg, Circuit Court Judge Charles Liebson, District Court Judge Olga Peers and Louisville attorneys Larry Franklin and Gary Weiss. 2 Louisville Law Examiner, April14, 1980 Letter to the Editor Dear Editor: The Moot Court Board recently voted to postpone the voluntary rounds of the Pirtle-Washer competition until the fall term. It seems that several members of the first year class felt that it was unfair to ask them to compete again this term. A petition was hastily circulated and presented to the Board. I was, and still am, against shifting the bulk of the competition to the fall term. I had no vote on the matter since I am no longer on the Moot Court Board, but for the record I would like to explain my point of view. First of all, there was no master plan to make it rough for the first year class. That is pure paranoia. The program was structured by students, most of whom participated in the advanced rounds their first year here. This is a professional school and therefore it requires a higher standard of competence and devotion than undergraduate school. Secondly, shifting the bulk of the competition to the fall effectively destroys the National Moot Court competition for those who will be second-year students next year. The sizable number who signed up to continue in the Pirtle-Washer competition won't be able to participate in both effectively. The present sign-up list will require five rounds to pick the finalists. They will certainly be experienced, but they cannot compete here and in another city simultaneously. I think a legal education should include more than class attendance. The various competitions provide an excellent opportunity to learn valuable skills. I can't suggest strongly enough that everyone push themselves a little to participate in these competitions. The more competitors the better the team selected. And the better the team selected the greater the chances that a team from this school will place nationally. That bolsters the reputation of the school and cannot hurt job prospects down the line. Most day students clerk their third year. They have one foot in the "real world" and want nothing more than to put the trailing one in the same place. Employers are not blind to the fact that doing something outside of class requires a little chutzpah. That is why I feel so strongly about the various competitions in the second year. In conclusion, I feel that a number of events culminated in an unfortunate result. The National Moot Court will lose the benefit of a lot of energy. I hope the new Moot Court Board will find a way to overcome some of the obstacles that seem to appear every year. The program has only been in the hands of students for a short time. Some progress has been made, but there is still much more that can be done to make the progams more enticing and more competitive. The only limit is the students' willingness to improve this situation for themselves and those who will follow. Frank Burnette New Officers for 1980-81 Law Examiner Edlton of the Loulsvllk Lllw Emmlner for 1980-81 are, from left: leff Wade, Brandeis Brief Editor; Tom Schultz, Managing Editor; Elizabeth Ward, Editor-in-Chief; Frank Bush, Associate Editor; (standing) Craig Bell, Associate Editor; John Wright, Business Manager; and Scott Furkin, Photogaphic Editor. Gerald "Bear" Schray, Art Editor, was sitting under the table. Louisville Law Examiner EDITORIAL BOARD Sam B. Carl, Editor-In-Chief Greg Yopp, Managing Editor Elizabeth Ward, Associate Editor John B. Wright, .Jr., Business Manager Pat Claillm, Photoarapbic Editor Scott Farkla, .Photoarapber ·Gerald "Bear" Schray, Artht STAFF Jeffrey L. Wade, Brandeis Brief Editor CraiJ Bell, Articles Editor Pat Chism, Projects Editor Andy Altman FraakBusll HaiiSaaden Tom Schulz · ,JudRr MARLIN M. VOLZ. Advisor Professor A tBt:RT T. QUICK, Consultant The Louis.-ilte /_aw Examiner is .published eight timt'S durin~t the academk ~·ear in lht> Interest of tllr University of touisville School of l .aw commonit)·. Unsi~tned editorial opinions are thflse represenlinR a Rlajority vt~e of the editorial board and do not neressarit~· expt"t>Ss the views of the School of Law or the Univtrsit~· of Louisvillt>. Articles are invited from facull)· members. students, and members of the bar "·Ito wish to do freelance work, but any proposed arlide must be dt>ared in ad\'ant·e with lht> editor as to topk and length. This is to avoid duplication nf wnrage and insurl' that lht• artidt> "ill nnl be beyond workable length fctr a newspaper fnrmal . Address all communications to the Louisville Law Examiner, School of Law, University of Louisville, Louisville, Kentucky 40208. Phone 502-588..(i398. 11Brandeis Brief'' Series Emerging Legal Issues Trial by Television: Point of No Return? PART II By George Gerbner The Annen berg School of Communications University of Pennsylvania INSTITUTIONAL CROSS-PURPOSES Entertainment is the cultivation of conventional morality. it " entertains" the basic values and norms of the community and cultivates conformity to those norms. An imporant part of that is the exploitation of popular prejudices and the cultivation of public support for the suppression of threats and challenges to the social order. From the arenas of the Roman empire to the present, show trials, highly publicized confessions, public tribunals and executions have formed a part of that process. The most widely frequented shows in London just emerging from the middle ages were "public executions; and even after these were abolished, attendance at murder trials remained as a more socially restricted but nevertheless much sought-after entertainment. A visit to a hanging might well, one presumes, have followed a gentle prodding with a stick of some madman at Bedlam." 10 · The great show trials and public confessions of the twentieth century occurred under dictatorships and periods of witch hunt in democracies. They were a part of the ·entertainment mainstream, now joined by much of what we call news, compelling attention, exposing deviation, spreading fear, and cultivating conformity. The most recent state to use television trials in a systematic way is the new Islamic government of Iran which broadcast them and aired "full confessions" nightly on television. 11 Tempering the swift and powerful tides of the cultural mainstream are the protections provided by those specialized institutions whose integrity is essential for the survival of self-government, if not of the human spirit. These institutions adjust the social order to a plurality of interests and hold out the possibtlity of peaceful reform and renewal under changing conditions. Perhaps the most important are the legal protections afforded those accused of deviating from the norms of conduct, particularly in ways most likely to draw media attention. The struggle to remove trials from the public arena parallelled the fight against secret proceedings, the Star Chamber. In fact, the two are sides of the same coin. Arbitrary power wants no public witness to its private deliberations but needs all the hoopla it can get to legitimize its actions. The integrity and independehce of judicial proceedings serve to protect the accused from both arbitrary power and public prejudice. The purpose of open trials is to help assure observance of these protections, not to entertain or even to educate. The legitimacy of a legal system does not derive from immediate popular approval of court decisions. The vigilance of a free press is needed to prevent judicial abuse and the erosion of the legal protections of a fair trial, but not to add the pressure or popular clamor to the proceedings. Reasons for Canon 35 General entertainment and specific rights have never mixed well. Chief Justice Warren pointed out in Estes v. Texas that "In the early days of our country's development, the entertainment a trial might provide often tended to obfuscate its proper role." And he continued. citing other accounts: The people thought holding court one of the greatest performances . . . the country folk would crowd in for ten miles to hear these 'great lawyers' plead; and it was a secondary matter with them whether he won or lost his case, so long as the 'pleading' was loud and long. In early frontier America, when no motion picture, no televison, and no radio provided entertainment, trial day in the country was like fair day, and from near and far young and old converged on the county seat. The criminal trial was the theater and spectaculum of old rural America ... All too easily, lawyers and judges became part-time actors at the bar ... 12 When functions of public entertainment and civic responsibility shifted to the press, new problems emerged. Crime and court reporting were the big guns in the circulation wars of the 19th century. They were also weapons of the press on the way to establishing itself as the organ of business community rather than of local governments and parties on whose patronage it had to depend before. In that process, the press shook up some bloated and venal local administrations, police, and court systems. It also laid claim to conduct trials by newspaper for what James Gordon Bennett of the New York Herald called the "living Jury of the Nation," ignoring the essential contrast between jury box and arena. The rise of movies as competing mass entertainment made Hollywood the "sin capital" lucrative and lrrestible copy. Movie comedian Roscoe "Fatty" Arbuckle was charged with the rape and murder of a starlet in a hotel room in 1921. The accusation was instantly leaked. The arrest was staged for reporters. William Randolph Hearst said that the trial sold more newspapers than the sinking of the lusitania. The press coverage firmly established Arbuckle as "villain incarnate, a gross vulgarian of obscene appetites."13 The resulting public agitation and the threat of legislation forced the movie industry to start its Production Code. After three trials Arbuckle was found not guilty but was ruined and died in disgrace a decade later. The American Bar Association appointed a special committee in 1924 to curb "unwholesome tendencies" in news reporting. The committee reported in 1927 that "There can be no more opportune time than the present for the press to cease (continued on page 3) , I Louisville Law Examiner, April14, 1980 making vulgar amusement of our law enforcement institutions ... " Instead, however, crime photographers entered the courtroom, disrupted proceedings and sneaked pictures of convicted murderers dying in the electric chair.14 The 1935 trial of Bruno Richard Hauptman, accused of kidnapping the twentymonth old son of Anne and Charles Lindbergh, attracted an army of reporters and photographers. The American Bar Association called the Hauptman trial "the most spectacular and depressing example of improper publicity and professional misconduct ever presented to the people of the United States in a criminal trial." 15 The ABA passed Canon 35, a ban on cameras and microphones in the courtroom. But two more landmark cases had to exact their high price in public understanding and justice before the lesson sunk in - at least temporarily. They were the 1954 murder trial and conviction of Dr. Sam Sheppard and the 1965 swindle trial and conviction of Billie Sol Estes - both eventually reversed be-cause of massive, pervasive and prejudicial publicity. · In the latter case, the "circus atmosphere" prevailing at the trial, inevitable in the days of hot lights, heavy cameras, and massive cables, has received the lion's share of attention in causing the reversal of the conviction. Actually, however, other considerations, as valid today as they were then, if not more so, weighed heavily in the decision of the Court, as a few excerpts from Mr. Justice Clark's majority opinion will indicate: We start with the proposition that it is a 'public trial' that the Sixth Amendment guarantees to the 'accused.' ... It is said, however, that the freedoms granted in the First Amendment extend the right to the news media to televise from the courtroom, and that to refuse to honor this privilege is to discriminate between newspapers and television. This is a misconception of the right of the press . . . The television and radio reporter has the same privilege. All are entitled to the same rights as the general public ... As has been said, the chief function of our judicial machinery is to ascertain the truth. The use of television, however, cannot be said to contribute materially to this objective. Rather its use amounts to the injection of an irrelevant factor into court proceedings ... . . . From the moment the trial judge announces that a case will be televised it becomes a cause celebre ... The whole community, including prospective jurors, becomes interested in all the morbid details surrounding it ... And we must remember that realistically it is only the notorious trial which will be broadcast because of the necessity for paid sponsorship ... If a community be hostile to an accused, a televised juror, realizing that he must return to neighbors who saw the trial themselves, may well be led 'not to hold the balance nice, clear, and true between the State and the accused .. .'~ .. . . . We know that distractions are not caused solely by the physical presence of the cameras and its tell-tale red lights. It is the awareness of the fact of telecasting that is felt ... throughout the trial ... ... The impact upon a witness of the knowledge that he is being viewed by a vast audience is simply incalculable ... While some of the dangers mentioned above are present as well in newspaper coverage ... the circumstances and extraneous influences ... in the televised trial are far more serious ... A major aspect of the problem is the additional responsibilities the presence of television places on the trial judge. His job is to make certain that the accused receives a fair trial ... Our jduges are high-minded men and women. But it is difficult to remain oblivious to the pressures that the news media can bring to bear on them both directly and through the shaping of public opinion. Moreover, where one judge in a district or even a State permits telecasting, the requirement that the others do the same is almost mandatory. Especially is this true where the judge is selected at the ballot box. Finally we cannot ignore the impact of courtroom television upon the defendant ... A defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or city or nationwide arena. The heightened public clamor resulting from radio and television coverage will inevitably result in prejudice. Trial by television is, therefore, foreign to our system ... 16 Recent trends Foreign or not, its day has come. Memories of trials by newspaper and the fiascos of Sheppard, Estes, and lesser cases made most courts hold back, except in Colorado where the trial of Black Panther LaurenT. Wilson was televised in 1970. Then the drawing power of the Watergate impeachment hearings and the lure of sensational trials led to mounting media pressure on the courts. Murder cases were televised in the states of Washington, Utah, Nevada, and Indiana. In an Ohio test case, the defendant, charged with the rape and murder of a 9-year-old girl, was allowed to be hypnotized during the examination, creating high viewer interest in the trial. Hustler magazine owner Larry Flynt was shot during a recess of his televised trial. Other notorious cases, some violating unenforced laws and guidelines, added to the pressure. 17 The murder-robbery case of 17-year-old Ronney Zamora, televised during a oneyear "experiment" in the state of Florida, became a national media sensational because television itself was "on trial" when the novel defense charged it with inducing insanity through "involuntary subliminal intoxication." The ratings were reported to have exceeded those of the Johnny Carson Show. When Zamora was sentenced to life imprisonment, press reports claimed that television was "acquitted." The defendant, on the other hand, may have been ill served. In an unsuccessful attempt to obtain a new trial, distinguished criminal lawyers and a Dade County Criminal Court Judge testified that Ronney Zamora's defense became secondary to other interests served by the television coverage. 18 The current "experiment" in Iowa courtrooms specifies that a defendant or witness may seek to have video recording stopped "upon showing that harm would result." 19 How can a person involved in a trial know, let alone show, such a thing? Already a Florida District Court of Appeals has overturned a conviction because the judge allowed the trial to be covered against objection and without "a full evidentiary hearing on the possible effects of coverage."20 In another Miami case, the defendant appealed a $1.6 million judgment on grounds that the jury returned a "newsworthy verdict in hope and expectation that they would receive further television coverage." 21 Yet another aftermath of the Florida "experiment" is the first case headed for the U.S. Supreme Court in which the defendants claim that the presence of television denied them a fair and impartial trial. 22 The current offensive Soon after the Florida "experiment" was declared a success, television pr pared for the pig push. Camera crews are not journalists; they are union techr (continued on page Dean 's Dicta On Wednesday, March 12, 1980, the University of Louisville School of Law sponsored a debate between Professor James R. Merritt and Judge Charles M. Leibson on the related roles of theory and practice in the education and training of lawyers. This was not the first - and certainly, not the last - time this subject has been discussed by legal educators. From the time of the establishment ofl the Inns of Court in rriedieval England, lawyers have always beert concerned about the balance between academic and skills training in the preparation of members of the Bar. In colonial America, George Wythe, the first legal academician, taught law to Thomas Jefferson and other leaders of our young nation at the College of William and Mary. At Harvard Law School, Joseph Story developed a law curriculum in the 1830's that attracted a number of studen~ in-terested in the theoretical aspects of the Dean Harold G. Wren law. But skills training remained in the law offices, and most persons were admitted to the Bar after "reading law" . During the mid-nineteenth century, a number of law schools, including our own, were established to provide academic training for future attorneys. The lecture method was typically used to explain and analyze various fields of law. In the late nineteenth century, Christopher Columbus Langdell introduced his famous "case method" at Harvard. For many years the case method and the lecture method competed with one another, but in the 1930's and 40's, the case method became dominant in nearly every accredited law school. Throughout this period the emphasis in legal education was placed almost entirely on the theoretical aspects of the law. After World War II, the law schools introduced many skills training in both curricular and extra-curricular programs . Beginning with moot courts and law reviews, law schools extended their programs to include training in a variety of practical skills. In our law school, courses and seminars, client counseling, estate planning, trial advocacy, business planning, arbitration and many others were introduced. During the nineteen seventies, Chief Justice Burger, the American Bar Association, and many others expressed great concern about the need for practical training of lawyers. In 1978, our faculty increased the number of semester credit hours for graduation from eighty-four to ninety to some extent in recognition of the need for skills training. At the same time, the faculty introduced a required course in basic skills in the first-year curriculum. In my view, the introduction of these additional aspects to the law school curriculum has in no way jeopardized the fundamental theoretical training which every law student must acquire while he is in law school. Our school has sought to balance the theoretical and practical sides of legal education. The curriculum committee and the entire law faculty will continue to study the problem to make certain that we maintain a dynamic program, in keeping with the latest advances in legal education. Harold G. Wren Dean Circuit Court Judge Charles Llebson, left, and Prof. James Merritt, right, debated aspects of a legal education on March 12, 1980. "The mutual confidence on which all else depends can be maintained only by an open minclbnd a brave reliance on free discussion ." -Learned Hand Let us know your point of view. Letters to the editors should be typed and signed. T1le editors reserve the right to edit letters for space considerations and for clarity. 4 ' I.·J ,· .. · .·.. · 3 4 Louisville Law Examiner, April14, 1980 Ne"W" Placetnent Director Stresses Continuity by Tom Schulz "It is extremely important to have continuity for a placement office to be effective," Phyllis Liebson said soon after becoming the first "full-time" staff member of the law school placement office. A major factor Mrs. Liebson identified in achieving this continuity is to have the office run by a paid director: someone who can devote the time necessary to establish and maintain an effective service to students and alumni. Mrs. Liebson began filling that role on March 1, funding for her position being provided as a part of the Dean's budget for the law school. The current funds will run out June 30. After that the plans are uncertain. The current program, however, is at least a step in the right direction. Dean Harold G. Wren had said in his state of the law school address last semester that "One of the greatest needs of the law school at the present time is the necessary funding for an adequate placement program." Dean Wren also said in the same address that placement should be "placed in the budget as a line item as soon as possible." Though Mrs. Liebson's office hours are only from 9 a.m. to 2 p.m., Monday through Thursday, she is available for individual appointments if a student is unable to stop by during those hours. Kevin Renfro, a secondyear student, also works in the office under a work scholarship and is there Monday through Thursday afternoons and all day Friday. Mrs. Liebson's major goal is to establish an ongoing system, one that would continue from year to year. This would include files for student use on prospective employers, especially on firms and government agencies that have used the placement office in the past. Also included in her plans are files on individual students, their placement goals and their achievements. A placement officer is similar to a "middle man" or broker, trying to match interested students with the right firms, and interested firms with the right students, she explained. One of her projects in this respect is to attempt to prepare a list of those employers with interests in specific areas such as tax, criminal law, etc. She has contacted the Louisville Bar Association to get approval and information for this project. It is a matter of obtaining lists, she said. "Ninety per cent of the job is working with people," Mrs. Liebson said. One aspect of the job is to inform the student about the placement office, which is kind of a public relations job. Advertising the office's services to prospective employers is an equally important aspect. The most important service in this respect is the on-campus interviews which the office co-ordinates. Mrs. Liebson has had experience as a volunteer in a vocational office and has developed a background in vocational counseling. "I know what tools are necessary in seeking a job," she said. This is helpful in another area of the office's services, student counseling. Ideally this should begin when the student first enters law school with an aim towards identifying goals and defining the student's own skills. "Also important is to learn the steps in getting a job: writing a resume and developing interviewing skills. Interviewing itself is good experience," she said. The office also aids students in finding clerking jobs while still in school as well as finding jobs upon graduation. First-year law school students can guarantee themselves a commission as an Air Force officer and a position as an Air Force Judge Advocate officer through the Air Force ROTC Graduate Law Program. The law student enrolled in the Graduate Law Program completes all the requirements for the Air Force ROTC two-year program while attending the second and third years of law school. The Air Force ROTC program in· eludes academic classes and attendance at a six-week field training encampment during the summer before the second year of law school. The student must be enrolled as a first-year student. Students should contact Capt. Bill Hutchersonn at (502) 588-6576 on the Belknap Campus. Applications should be made by April 15. Selections are made each spring. Apply early. Applications will be accepted after April15 as long as individuals can be scheduled to attend field training the summer before their second year of law school. Sl1etl sttllle li!lllf •••• , ....... f••f•••·e After college, what will I do? That's a question a lot of young people ask themselves these days. But a two-year Air Force ROTC scholarship can help provide the answers. Successful completion of the program gets you an Air Force commission along with an excellent starting salary, a challenging job, promotion opportunities, and a secure future with a modern Air Force. If you have two academic years remaining, find out today about the twoyear Air Force ROTC Scholarship Program. It's a great way to serve your country and a great way to help pay for your college education. Air l~tr£e l~ttTt~ t;ate\vay t• a t;reat \\'ay •f l~lfe Placement Office Director Phyllis Liebson points to an area of Kentucky that is underrepresented by attorneys. Mrs. Liebson views the placement office as an integral part of the law school, a service to incomeing freshmen as well as to those looking for a job upon graduation and also a service for alumni, both those looking to hire and those looking for a change in positions themselves. She also points out the office is in a position to promote the school through its graduates and thus enhance the school's reputation. The reputational values is sometimes invaluable to the individual searching for a job. With the recent hiring of Mrs. Liebson, the placement office took a step forward. The office began in 1976 as a part-time venture under the direction of law student Dorothy Pitt. Her position was funded by Judge Marlin Volz who had always headed an informal placement service at the law school. The program continued with Judge Volz's law clerk devoting about one fourth of his time as placement officer. Susie and Bob McBeath served in this position successively. The Student Bar Association under presi-dent Matthew Welch was successful in obtaining two tuition remission scholarships for students to work in the office. , Each of the scholarships had a 90-hour work limit. Kevin Renfro is working under' the second of these scholarships. Gerald Schray held the previous one. The SBA has also published the senior placement bulletin which had 1 10 participating seniors this year. Mr. Welch said that Dean Wren had asked the SBA for money to fund Mrs. Liebson's position. Mr. Welch then discussed the matter with Dr. Edward Hammond, VicePresident of Student Affairs, in charge of the University Placement Office. Dr. Hammond offered to fund the position but stipu~ lated that the person hired would be under his direction. Mr. Welch said Dr. Hammond told him that it is "the Administration's job to find placement." Dean Wren declined Hammond's offer '"and instead fundedthe position through-the law school's budget. Mrs. Liebson, in discussing the placement office's future, said, "I hope it continues." News-In-Brief Phi Alpha Delta fraternity recently elected new officers for the 1980-81 year. The officers are: Timothy Scott, Justice; Gail Kaukas, First Vice-Justice; Antonette Logar, Second ViceJustice; Jerrold Perchik, Treasurer; Renona Browning, Clerk; Lucy Helm, Marshall; and Scott Fur kin, Recorder. The Delta Theta Phi fraternity has announced its officers for the 1980- 81 year: Sharon Conyer, Dean; William Parks, Vice-Dean; Linda Thomas, Clerk of the Rolls; Charles Mullins, Ritual; Patricia Kerlick, Tribune; Joseph D'Ambrosio, Bailiff; and Phillip Castagno, Exchequer. CORRECTION In the March edition of the Examiner, the evening Vice-President of the Moot Court Board Sharon Welch was mistakenly identified as Elenor Welch. The Examiner regrets the reporting error. Essay Contest Announced Submission for a third Alan Y. Cole Law Student Essay Contest on "The Exclusionary Rule: Do We Really Need It?" must be postmarked by June 30, 1980 and sent to CJS staff offices. Only students enrolled in ABA-approved law schools may compete for the $300 cash prize. Candidates for advanced law degrees and ABA employees are excluded. Entries may consist of a discussion of case law, litigation techniques, or any legal discourse which might further advance this field of law. Papers prepared for the 1979-80 school year are eligible, but published articles or those which have been accepted for publication are not. Each entry must have only one author; be double or triple spaced and not exceed 50 pages, including footnotes. It must include the author's name, permanent and temporary addresses and telephone numbers, name of law school and year of the student. The contest is named in honor of Alan Y. Cole, Washington, D.C., in recognition of his outstanding contributions to the Section as 1976-77 Chairperson and as a longtime Council member. Submissions will not be returned. The winner will be selected by a special threemember judging panel of Section volunteers and will be announced in July. Send entries to: Coordinator, Law Student Essay Contest, ABA Criminal Justice Section, 1800 M Street, N.W., 2nd Floor South, Washington, D.C. 20036. Louisville Law Examiner, Aprill4, 1980 5 Delahanty Sets Priorities For SBA by Elizabeth Ward Kevin Delahanty, the newly elected President of the Student Bar Association, feels the law school is faced with several problems and has set the priorities for his administration. As it was under the previous SBA administration, Mr. Delahanty stresses that the "first priority right now is a permanent placement office and a permanent placement director. (Former SBA President) Matthew Welch has obtained a lobby effort with the administration and a temporary placement director, Phyllis Leibson. At this time, we are discussing with Dean Wren and Dr. Hammond, who is Vice-President of Student Affairs for the University of Louisville, the possibilitr of the University supplying some funds for a permanent placement office and director." At a recent meeting with Dr. Hammond and Dean Wren, Dr. Hammond suggested that the University of Louisville might find some money in federal grants to fund a permanent placement office. However, this money would be contingent upon moving the law school's placement office to the Life Planning Center on the other side of campus. Dean Wren disapproved of this plan, expressing concern that lawyers would not utilize a placement office that was not directly connected with the law school, that is, located in the law school building and under control of the law school. "Matt and I suggested that perhaps a compromise would be in order and that the placement office could be located within the law school and controlled majorally by the law school with the University having some control over it," said Mr. Delahanty. "We did not come to any consensus of opinion, with Dean Wren sticking with his position that the placement office should be under the direct control of the University of Louisville Law School. Dr. Hammond maintained his position that in order to receive funds from the general University, he would have to have a placement office in the Life Planning Services with the overall University Placement Services. We have a meeting scheduled in April in which all parties concerned will attend to further our plans for a compromise. "Dean Wren for the last four years has submitted in his budget proposal for the Law School funds for a permanent placement office," Mr. Delahanty continued. "However, Frankfort has consistently cut the overall funding of the law school budget and Dean Wren has insisted that there isn't enough money to fund a permanent placement office after these cuts. He is given an overall figure, which he allocates according to his priorities and thus far one of his priorities has not been a permanent placement office. I believe that the students need and deserve a permanent placement office. I don't care where the funds come from as long as we have a permanent placement office in the law school under control physically at this point by the law school. However, if in order to get these funds we have to allow the Dean or Dr. Hammond some control such as a telephone hook-up with the Life Planning Services, that's fine with me, as long as the placement office stays in our building because a lot of us do not have the time to go across campus in between classes and utilize their services." Mr. Delahanty believes that if funds are contingent upon moving the placement office to the Life Planning Services, he would not accept them. In the near future, the ABA is expected to promulgate recommendations that a permanent placement office is an ABA requirement for all accredited law schools. "The second SBA priority," explained Mr. Delahanty, "is to change the grievance procedure so that law students may utilize this procedure to get rid of frustrations or to make suggestions on improvement of this University. The model grievance that we have on file in the Dean's secretary's office is not approved; therefore, it is not the grievance procedure that we must go to. I have learned through John Garner, President of the Student Government Association, that the University of Louisville Law School could not submit their proposal to the University of Louisville Grievance Procedure. Therefore, the grievance procedure we have upstairs is not in effect and any grievances we have will have to be submitted to the University. Our procedure and the University's are very similar but I'm not satisfied with either of them so this summer I and the to-be-formed grievance procedure committee will work to submit a proposal and change our grievance procedure. Our goal is to establish a policy which will permit a student to go through an informal grievance procedure to the Assistant Dean with our grievance, let him judge the merit, and then go on up to the Dean so he can judge the grievance itself." "A third priority at this time is more minority representation in this Law School. At this point in time, we are not in accordance with the Affirmative Action Program at this school. We have approximately 500 students in this Law School and there are only 5 to 6 minority students attending. This year 2 of those minority students will be graduating leaving 3 black students in a total population of 500 law students. This is grossly out of proportion with the minority representation we should have according to the Affirmative Action Program. If we don't make an effort to admit more black students, more Puerto Ricans, or more minority students, we will be under direct attack of the ABA. We admitted 3 minority students last year and all 3 flunked out. I don't believe there is any racial discrimination against black students in this Law School. However, I do believe there must be a greater effort to not only recruit black students but to form some type of program so that it will enable them to compete with white students on the law school level. These programs will include an awful lot of work such as tutoring services, teaching people how to review and how to take notes in the law school. Other facets of the program, I cannot come up with now, but I intend to work on it throughout the summer. I have talked to black students in this school and have learned that there is an 80 percent to 85 percent attrition rate in minority students. This may be due to cultural differences; however, I believe that it is not. The University of Kentucky has a tremendous minority recruitment program and they have a great percentage of minority students at their law school. I can't believe they can succeed in training black lawyers for the black community and the University of Louisville can be so inadequate. "My fourth priority is the grading system at the this University. This is one of the most hotly contested issues in the law school. You cannot go throughout a .day without hearing at least one sophomore or one freshman griping about the low grades received at this University. In my first year we started with 105 students. Out of 105 students, approximately 75 were left at the beginning of the second year. Still teachers persist in grading on a A, B, C, D grade curve. I don't understand how they can do that when they already flunked out 30 percent of our class. We have proved that we're the A, B, and C students. We are here and we are making an effort to learn law and I don't think we should be arbitrarily considered D students, especially after we have gone through the first year. We are graduate students and we have proved ourselves in college. We have proved ourselves on the LSA T scores and I believe we deserve to be graded not on an automatic curve system but according to our intelligence. There are a number of grading systems available. Professor Abramson suggested last year, after reviewing the Bar results, that this school should change its system to a percentage system. I think this would be more fair. I think students who received D's that are 64 percent, 1 point from a C, are aggrieved by getting this D because it lowers their grade point no matter if it's a 60 or 64. A grading system utilizing a proportion or percentage would more accurately reflect our knowledge." Mr. Delahanty also commented on his expectations of cooperation from the law school administration during his tenure as SBA President. "What I hope is that they will work with me in an effort to improve the law school. I believe that we have a professional administration dedicated to improving our legal education; however, I believe that they have not listened to the student body and the views we hold and are therefore holding one-sided viewpoints on most of the issues. "I believe that the professors are an excellent faculty and they probably place most of their emphasis on training students for the legal profession. As far as I can tell, most are at least willing to listen to student views and a number actually have been trying to improve the school. I point out Professor Abramson, especially, as holding views very similar to what we · would need and what the students desire: a more accurate grading system, fewer hours for freshmen. That the faculty and administration of the school are dedicated to improving the legal education is shown by their involvement with continuing legal education program, seminars with legal counseling and legal training. Not only are they trying to give us basis and theory of the law, but they are also trying to train us for the legal profession before we actually get out into the real world and apply our knowledge. That is to be commended. However, the faculty and the administration seem to think that in order to facilitate getting proposals or policies through that it is easier and faster just to avoid the students' opinions. They believe that we are just going to mess up the process; that we are going to drag and after they can adequately protect and Improve our law school without us. Until the students actually have more contact with the administration and teachers and have input with the policies of the school, we will not be able to get this law school to better itself and compete with the better law schools. The average student sees the faculty not as a person with whom he can go to and talk, but is scared of the professors, basing his viewpoints on only in-class interaction where the professor is all-powerful, allknowing. (Third-year student) Jim Seiffert · is trying to implement a new program having faculty advisors for a small number of students. The students are to schedule meetings with the professors every once ·in a while so they can discuss problems with the school, how to go about preparing for their classes, how to schedule their subjects of designated bar courses. When the students feel the professors are on their side and that they are there to help them, our University will improve. New SBA officers are: Jude Clark, Evening Vice-President; Teri Hasenour, Treasurer; Mike Luvisi, Secretary; Kevin Delahanty, Presi-/ dent; Ray Haley, Vice-President. (Not pictured is Darrel Coffey, LSD/ ABA Representative.) j I I 6 Louisville Law Examiner, April14, 1980 Aprile Addresses Trends In Criminal Procedure any young lawyer who has made it through law school and passed the bar deserves the best by Greg Yopp Recent weeks have not approximated the basic nine to five routine for Assistant Deputy Public Advocate J. Vincent Aprile, II of the Commonwealth of Kentucky's Office for Public Advocacy. Mr. Aprile, who is also a University of Louisville School of Law Lecturer, was in Providence, Rhode Island on February 25 presenting a three hour continuing legal education program and then on March 26, he was in Washington, D.C. appearing before the Supreme Court of the United States. At the invitation of the Public Defender of Rhode Island, Mr. Aprile presented his continuing education program to the trial and appellate public defenders as well as members of the private defense bar in Providence. The major topic of the presentation was "Hypnosis As A Method of Reviving A Witness's Memory,:• which focused on a defense strategy to combat the proliferation of hypnosis as a law enforcement tool in both the investigation and prosecution of crimes. "This is a crusade that I am very active ·in," said Mr. Aprile. "I'm very frightened of the misuse of hypnosis that is taking place in the law enforcement area and the criminal justice system." According to Mr. Aprile, from five to eight years ago people started attending special seminars lasting from three to four days where they studied how to be a nontheraputic hypnotist. "What these people believe is that memory is like a video tape; that everything that happens to you, you are storing like you are taking a picture of it and it can be retrieved." Under hypnosis the subject blocks his conscious thoughts and retrieves suppressed memories from his subconscious. But, it has been proven clinically that subjects under hypnosis are highly suggestible. They want to help and as a result may provide answers they think the hypnotist wants to hear. They honestly believe that what they have come up with is actually the truth. Mr. Aprile learned much of what he knows about hypnosis from one of the nation's leading experts on the subject, Dr. Martin Orne, who is a University of Pennsylvania psychiatrist. According to Mr. Aprile, Dr. Orne believes that only qualified doctors should employ hypnosis for susequent court room use rather than "hypno-investigators" who in essence create an eyewitness whose new found testimony will later be used in court. "In hypnosis for theraputic reasons it is true that the doctor hypnotises you and asks you to recall an event, but a therapist doesn't care if you recall reality or fantasy. Whatever you believe and are suppressing, if he can get that out, he can do away with the side effects of it. But it does not have to be reality. The hypno-investigators don't realize that and, as a result, they believe that anything that can be brought out is true," said Mr. Aprile. "Under hypnosis you will manufacture details. And the really incredible thing is you will become locked in. The right of confrontation and the right of cross examination under the Constitution goes down the drain." To combat the use of such hypnosis, Mr. Aprile advocates the use of a simple discovery motion whenever there is going to be an eyewitness testimony in a case. "They are using it. My big fear is we don't know when they are using it. " The remainder of Mr. Aprile's presentation was devoted to a discussion of the use of experts in reading comprehension to challenge the validity of a Miranda waiver and the defense use of a "sanity" defense. The challenge of the Miranda warning is made on the basis of readability. The idea is to bring in an educational expert to VIncent Aprile testify as to the level of educational reading and listening oral comprehension ability necessary to understand waiver. "Then see what kind your client really has and show that he could not have made a knowing, intelligent, and voluntary waiver because he couldn't comprehend the words," said Mr. · Aprile. On March 26, Mr. Aprile presented an oral argument before the Supreme Court of . the United States on behalf of the petitioner in David Rawlings vs. Commonwealth of Kentucky. "It's a very crucial case in the history of the Fourth Amendment and I hope it's not one in which I turn out to be a grave digger as opposed to a resurectionist," said Mr. Aprile. Discussing the appearance, which is his third before the Court, Mr. Aprile said, "I was happy with the argument in the sense that it was a very spontaneous thing. I talked about five minutes and after that it was all questions. They put me through the paces, there is no doubt about that. But that was much better than going out there and putting on a show. They got my show when they read my brief." Recounting his law school days at the University of Louisville where he was a member of the National Moot Court team, and relating it to what he knows now, Mr. Aprile said, "if you really get involved in the moot court program it can be a big help to you in appellate argument later on. It is a real model of what appellate argument is all about." There are no finer law books than West books. They are edited and printed for the practicing lawyer. They meet practical needs; answer practical problems, and they always offer maximum ease of movement from one publication to another through the Key Number System, citations and library references. If you're a student soon to practice law or already a seasoned practitioner, be sure you give yourself the advantage of the best tools an attorney can have ... West law books. O.K. CURRY representing WEST PUBLISHING COMPANY 584-5058 SBA President Kevin Delahanty and Matthew Welch present a composite picture of the third-year graduating class to Dean Harold G. Wren. WOODY'STA &ALE GARDEN brook & burnett THURSDAYS IN APRIL Pitchers of Draft Beer $1.50 Congratulations Cards NCAA Champs Congratulations Woody's A. C. Intramural Champs Louisville Law Examiner, April14, 1980 7 (continued from page 3) cians hauling and handl ing costly equipment whose every move and minute must be carefully budgeted. ABC's Steve Tello, who had run the broadcast pool for the grol}ndbreaking Zamora affair, was assigned to the biggest show yet in the line of legal spectaculars, the multiple college-girl sex murder trial of Theodore Bundy. With its lurid and intimate details and type casting fitting the dramatic media pattern, Bundy became the first nationally televised courtroom-originated reallife horror show of the new era. It cost ABC an estimated $2 million to field the crew and carry the event, a good investment by program cost and ratings standards. The judge, pronouncing his third death sentence, called the coverage, "the most accurate reporting of a trial. " 23 Bundy denounced the coverage and claimed that he had been victimized by media " sharks." Broadcasting magazine declared "VERDICT IS IN FAVOR OF TV IN BUNDY TRIAL." 24 Emboldened by their successes and impatient with legal inhibitions, the media launched a two-pronged offensive. Typical of one approach was a "First Amendment Survival Seminar" sponsored by the National Association of Broadcasters and other organizations in Washington on March 10, 1979. Jack Landau, director of the Reporters' Committee tor Freedom of the Press, told the meeting that courts think they are "above the laws of the country." The press should tight back "on our own turf," he said, referring to media campaigns and coverage. A Supreme Court correspondent urged his colleagues: "Don't try to join the system - beat it." He thought that "Time has surely come to use tricks" such as hidden recorders and parabolic microphones to pick up court proceedings. 25 A few months later the industry moved to set up a " First Amendment defense" insurance program to cover legal fees in cases involving access to information. 26 The other prong of the offensive is more circumspect. An example was the careful staging of a demonstration of "cameras in the courtroom" at the August 1979 Dallas meeting of the American Bar Association. Invited by the ABA, featuring a debate and a mock TV trial, the demonstration was designed to show, in the words of National Association of Broadcasters President Vincent T. Wasilevsky, " how effectively the electronic media can operate without any interference with the dignity and decorum of the proceedings." 27 Steve Tello of Zamora and Bundy fame was again pressed into service. Learning a lesson from Atlanta, camera crews donned pin stripes and were reported "almost indistinguishable from conservatively dressed ABA members." Cables were tucked down air conditioning ducts. The formal briefs used in the mock appellate proceedings were included in a booklet entitled "Cameras in the Courtroom: A Presidential Showcase Program" and distributed at the convention. Broadcasting magazine headlined the affair "TV in its Sunday Best for ABA demonstration," and concluded: "No muss, no fuss: It was an example of what television technology and professionalism can do in 1979." 28 Conflicting missions But dignity, decorum, technology, and professionalism are not the issues. Televi sion in its "Sunday best" is an institution with its own goals and mission. Collaboration with media, when not strictly codified, is a cottage industry in trading confidences. Those who have played the game the longest describe its rules in a study of congressional committee hearings and the media: (1) accept reporters' detmitions of what constitutes news, (2) accommodate inquiries, (3) ask tor anonvmity tor staff members (4 tl) to get some cred t for the boss. 29 Te1ev1sing Con res u der Congress1ona1 rather than television industry control predictably detracts from its entertainment values. The camera is usually trained on the Speaker's platform and on the tables where f loor leaders operate. It rarely it ever picks up a dozing member, empty seats, reaction shots and other potentially embarrassing sights. The networks that campaigned tor coverage under their control now found only a few snippets of the video feed suitable tor their purposes. In the first SIX months of gavel-to-gavel coverage, ABC and NBC used about 12 and CBS 19 pieces. The potent ial of audience appeal in selected trials is much greater. Already sex, gore, madness, and bizarre scenarios dominated the real-lite television courtroom scene, using real trials to confirm the fantasy image of justice on television. With the prospect of TV rather than the courts calling the shots, it may be instructive to consider the record of the press in using its rights to defend the rights of others, especially those with no money, clout, or popular appeal. A study of metropolitan newspapers' coverage of First Amendment cases be.fore the Supreme Court shows considerably greater concern with press rights than with the other basic freedoms. The study suggests that press advocacy of freedom is largely self-serving and could not be expected to help uphold rights inimical or irrelevant to its own. 30 The press also has a poor record of using information made available by the courts. Of the most significant verdicts reached by the California Supreme Court and released to the press, a sample of 10 state dailies reported one-fifth. Only conflict on the court helped draw press attention to a case.31 The first time the media ever paid sustained and compelling attention to the U.S. Supreme Court, even going to the extent of serializing the story, was the appearance of the personalized account of a thousand leaks, The Brethren by Bob Woodward and Scott Armstrong. 32 In the most sensitive area of citizens' rights, the area of crime reporting, the media work closely with the police and generally follow what one survey of research calls "the police version of crime."33 Most studies agree that crime news generally gives a misleading and prejudicial account of the frequency and nature of crime in a community34 and that such coverage provides the media "with a vehicle for communication to readers of the necessity for strong social controls."35 Broadcast coverage is, if anything, the most slanted toward the police view of due process, especially since the minicam gave crews the ability to follow police Ups to the field and to concentrate on the violent and the spectacular. A 14-week survey of community coverage found the programming "often arbitrary, superficial, or both," a casualty of "the so-called 'realities' of the TV Industry ... " 311 AT THE POINT OF "0 RETURN . Television presents a coherent world of Images and messages serving Its own institutional Jnterests. The question is whether the judiciary should be enlisted to add further credibility to media mythology. Plugging courtrooms into the television system can make them appendages of that system. Once televised trials attract a large national following, the process will be irresistible, cumulative, and probably irreversible. · The scenario unfolding now is what Chief Justice Warren warned against when he wrote with the majority in Est~s .v. Texas that "the tel~vising of criminal trials is inherently a denial of due process." Believing that the case at hand was only "a vivid illustration of the inherent prejudice of televised criminal trials," Warren wished to "make a definitive appraisal of television in the courtroom." In doing so, he predicted, with uncanny foresight, the entertainment pressures upon the selection and treatment of trials; the impact of notoriety upon participants, including jurors returning to their communities; the problem of impartially re-trying a case after wide national exposure; and the likelihood that defendants who have attracted public interest and find their " trial turned into a vehicle for television . . . are the very persons who encounter the greatest difficulty in securing an impartial trial even without the presence of television." Chief Justice Warren concluded that " the television industry, like other institutions, has a proper area of activities and limitations beyond which it cannot go with its cameras. That area does not extend into an American courtroom . . . Where the lives, liberty, and property of people are in jeopardy, television representatives have only the rights of the general public, namely to be present, to observe the proceedings, and thereafter, it they choose, to report them."37 There is no doubt that, whatever its general social functions, television has enriched the horizons of many who have been out of the cultural mainstream ever since the coming of print-oriented culture. Television can also spread occasional superb insight and enlightenment. England's BBC has broadcast the trials of France's Marshal Petain, of the Irish patriot Roger Casement, and of the Chicago Seven before Judge Hoffman. U.S. networks aired "A Case of Rape," "The Rosenberg Case," "The Execution of Private Slovik," and the "On Trial" series of historical cases. These were all dramatic enactments, with occasional documentary footage, trying to go behind the scenes and to illuminate the invisible but all-important principles of justice in a calmer historical perspective. Instant telecasting of live trials - television at its spontaneous best - is likely to achieve the opposite. The political opportunities inherent in the shifting balance of powers will become more and more compelling. Now about 10 percent of the electorate can identify any judicial candidate during an election. A television trial can easily multiply that tor the chosen candidate. (Will others ask for equal television trial time?) As a system of mutual accommodations and payoffs develops, controls and inhibitions are likely to fall by the wayside. Neither history nor existing research support the contention that the addition of instant video spectacle to current court coverage would enhance fairness, freedom, public understanding, or needed court reform. The record reflects a history of institutional cross-purposes that the addition of scenes of real-life courtroom drama selected and edited for general television audiences is more likely to magnify than to rectify. Only an immediate moratorium on televising trials can provide time and the opportunity for responsible action. In the face of demonstrated conflicts and incalculable risks, the burden of proof must shift from the potential victims to the proponents of trials by television. It is with some trepidation that I even suggest research lest it become an excuse for pressing forward " until all the data are in." The research cannot take short-term overt manifestations and opinions at face value. Unless it investigates the enduring inst itutional consequences of sustained exposure to televised trials, it is worse than no research at all; it becomes a windowdressing for foregone conclusions. A two-stage design may provide the framework for meaningful investigation. Stage 1 would be the reliable and objective analysis of a representative sample of televised trials and segments of trial s. Stage 2 would be a systematic assessment of the relevant conceptual and policy consequences of exposure to these telecasts. To continue toward a national system of television t rials risks passing the point of no return. Research beyond that point is a waste and an illusion. However, coupled with a moratorium, research on a appropriate scale would be a responsible and pioneering way to build a basis for future decisions. The research would systemat ically test relevant conceptions and behaviors of participants and members of their communities and, most importantly, it would assess conceptions of the judicial process that television trials cultivate in the minds of the viewers. Without such research, and unless the results warrant further action, the interests of justice and the rights of citizens are best served by a flat "No" to trials by television. 10. Francis Haskell, "Yesterday's Today Show," The New York Review of Books, October 12, 1978, p. 55. 11 . The New York Times, June 25, 1979. 12. Cited in Mass Media and the Supreme Court, edited by Kenneth S. Devol. New York: Hastings House, 1971, p. 318. 13. Stephen Zito, "Hollywood Versus the Press," American Film, May 1978. 14. Leona Floren, "The Camera Comes to Court," Freedom of Information Center Report No. 396, University of Missouri, October 1978. 15. William E. Francois, Mass Media Law and Regulation, Second Edition. Columbus, Ohio: Grid, Inc., 1978, p. 272. 16. Devol, p. 313-318. 17. For a detailed account see Frank W. White, "Cameras in the Courtroom: A U.S. Survey," Journalism Monographs No. 60, April1979. 18. From a personal communication by Joel Hirschhorn, one of the attorneys testifying in the case. 19. The United States Law Week 12-4·79, 48 LW 2383. 20. Freedom of Information Digest, University of Missouri, September-October 1979, p. 1. 21. Broadcasting, October 17, 1977, p. 25. 22. Chandler and Granger v. State 366 So.2d 64 (FLA. 3rd DCA 1979) Appeal dismissed, cart. denied, public question moot, So. 2d (FLA. Sept. 27, 1979) Stay of mandate granted Supreme Court S.Ct. (Jan. 11, 1980)(Powell, J. in chambers). 23. Variety, October31, p. 73. 24. August 6, 1979, p. 29. 25. Broadcasting, March 26, 1979, p. 104. 26. Broadcasting, OctoberS, 1979. 27. Broadcasting, July 30, 1979, p. 69. 28. Broadcasting, August 20, 1979. 29. Susan H. Miller "Congressional Committee Hearings and the Media: Rules of the Game," Journalism Quarterly, Winter 1978, p. 659. · 30. F. Dennis Hale, "A Comparison of Co¥erage of Speech and Press Verdicts of Supreme Court," Journalism Quarterly, Spring 1979, p. 43. 31 . F. Dennis -Hale, "Press Releases vs. Newspaper Coverage of California Supreme Court Decision," Journalism Quarterly, Winter 1978. 32. New :York: Simon & Schuster, 1979. 33. Sanford Sherizen, "Social Creation of Crime News; All the News Fitted to Print." In Deviance and Mass Media edited by Charles Winick, Sage Publications, 1978, p. 222. ~- See, for example, E. Terrence Jones, "The Press as Metropolitan Monitor," Public Opinion Quarterly, 40;1976, pp. 239-244. 35. Matthew Lippman, "The Law of Contempt: Fair Jury Trials and Free Press in Australia," Australian ' SCAN; Journal of Human Communication, No.5, December 1978-May 1979. · 36. From a survey by the Lab for Public Affairs Television at the New School's Center for New York City Affairs, reported in Broadcasting, February 20, 1978, p. 60. 37. Devol, pp. 317, 320,321 . I I I 8 Louisville Law Examiner, Aprill4, 1980 Journal of Family Law Articles Appearing in Vol. 18, Number 2 • The Proper Role of Psychology in Child Custody Disputes . . . . . . . . . . . . . . . . . . . . . . . . . by Litwack, Gerber and Fenster • The Supreme Court's View of Marriage and the Family: Tradition or Transition? . . . . . . . . . . . . . . . . . . . . . . . . by Peter Riga • Legal Aspects of Artificial Insemination .. by Jeffrey Shaman Book Reviews • Unmarried Couples and the Law . .. .. .. .. by G. Douthwaite • Having Babies .. . ... ... ... .. ...... .. by Charles Kindegran Notes • Home Instruction: An Alternative to Institutional Education Issues Presented by Analysis of a Representative Case: • Consent to Adoption as • Appointed Counsel in Paternity Abandonment Action • Parental Consent for Minor's • Damages for Mother's Anxiety Abortion About Injury to Fetus • Choice of Surname of • Parental Consent to Search of Child Child's Property • Notice to Father in • Infant's Action for Wrongful Guardianship Action Life Summaries of Over 50 Recent Cases in the area of Family Law Mail Orders to: Managina Editor Journal of Family Law University of Louisville School of Law Louisville, KY 40208 D Vol. 18, No.2 ($4.00) D Vol. 18 ($15.00) Name _____________________________ __ Address----------------------------- City _______________ State ____ Zip A Quarterly Publication of the University of Louisville School of Law Congratulations to Woody's Athletic Club: U of L Intramural Basketball Champs Louisville Law Examiner School of Law University of Louisville Louisville, Kentucky 40208 Non-Profit Organization U.S. POSTAGE PAID Permit No. 769 Louisville, ~y John M. Harlan Loui' D. B'Ondei' f' . Louisville \, Law Examiner Volume 5 Number6 April 14, 1980 Prof. Irving Younger lectures on the law of evidence ... page 1 The School of Law has a new placement office director •.. page4 In the photo at right, Prof. Abramson takes advantage of the Spring weather, holding his Advanced Criminal Procedure class in the law school's courtyard. |
Subject |
University of Louisville. School of law University of Louisville--Students University of Louisville--Alumni and alumnae University of Louisville--Faculty University of Louisville--Employees Law students Law & legal affairs Law and legislation--Kentucky Law and legislation--United States Law libraries Legal education Libraries |
Location Depicted |
Louisville (Ky.) Jefferson County (Ky.) |
Date Original | 1980-04-14 |
Object Type | Newspapers |
Source | Various-sized print newspapers published by students of the University of Louisville School of Law. The print edition may be found in the University of Louisville Law Library or the University of Louisville Archives and Records Center. |
Collection | Law Library Collection |
Collection Website | http://digital.library.louisville.edu/cdm/landingpage/collection/law |
Digital Publisher | Law Library of the Louis D. Brandeis School of Law, University of Louisville |
Format | application/pdf |
Ordering Information | The publications digitized in this collection are the property of the University of Louisville School of Law and are not to be republished for commercial profit. To inquire about reproductions, permissions, or for additional information, email lawlibrary@louisville.edu. |
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