Blagojevich and the free press, fair trial debate

Every journalism student spends some time in the study of the "free press v. fair trial" conflict, the challenge of guaranteeing every defendant a fair trial according to strict rules of evidence while also permitting people to speak and report publicly about the circumstances of a case.

Rod Blagojevich is surely giving journalism profs new material faster than they can write the lesson plans.

The conventional thinking is that publicity tends to complicate the trial process, if not in some cases subvert it altogether, especially for defendants. How, the argument goes, can a defendant get a fair trial from an unbiased jury if the jury members have already read in the papers or seen on television, say, inflammatory excerpted comments from a government wiretap?

Yet, if the press is going to honestly and thoroughly show how the court system works, that the system is fair and governed by law and not the influences of money or power, it must be free to report on whatever it finds and sees.

The resulting conflict generally creates a system whereby attorneys say little, if anything, for the record until a case is completed, and defense lawyers in particular forbid their clients from speaking publicly, adding to the dangers of a public misstatement and potentially giving prosecutors ammunition to be brought into court during the trial.

Blagojevich has turned all of that thinking on its ear. He, a former chief executive of one of the most populous states in the nation, let a talk show celebrity tousle his hair as though he were a freckle-faced schoolkid. He let David Letterman grill him with questions challenging his honesty and his motives and turn him into a sheer laughingstock. He gave the public every opportunity to assume him guilty rather than presume him innocent.

Last week, we saw what happened - or perhaps more to the point, what didn't happen - as a result. This week, amid the prospect of a new trial, we see the strategy resume with renewed vigor. He made a new round of media visits on his bizarre magical mystery tour, including allowing Jon Stewart to grill him on the Comedy Network's "The Daily Show" for more than five minutes on why his refusal to testify after so many public promises to do so made him suspect.

In a story Wednesday, Daily Herald staff writer Ted Cox examined the effectiveness of Blagojevich's pronouncements outside of court. Among experts, there was some disagreement about whether Blagojevich's publicity efforts had affected his trial, but it was especially interesting to hear the reasoning of one professor who thought they did. Legal commentator Andrew Stoltmann, a Barrington Hills attorney, said the public appearances worked in Blagojevich's favor. The publicity helped the defendant, Stoltmann said, because it enabled him to get to that one juror he needed to stave off a guilty verdict.

Notably, few people seem to be talking about the potential Blagojevich's appearances may have had to solidify the opinions of the 11 people who thought him guilty.

The case of a politician facing vaguely defined corruption charges is different, of course, from that of, say, a jealous husband accused of murdering his wife or even a rich stock broker accused of bilking investors through an underhanded Ponzi scheme. But the Rod Blagojevich case has provided one prominent object lesson in favor of the notion that pretrial publicity does not necessarily prevent a defendant from getting a fair trial.

College professors everywhere - like working journalists themselves - will surely be watching to see what effect Round 2 will have on their curriculum.

Jim Slusher, jslusher@dailyherald.com, is an assistant managing editor for the Daily Herald.