Despite publicity, good jurors won't be hard to find

August 27, 2004

In recent months a lot of people have said and written much nonsense, in our view, about the friction between the First and Sixth Amendments brought on by the impending trial of Kobe Bryant. With jury selection scheduled to begin today, we expect to hear more misleading commentary in the near future. Call us naive if you like, but we do not share the critics' concern over whether 12 fair-minded people can be found to serve as jurors in Judge Terry Ruckriegle's Eagle County courtroom. Of course they can. We'd bet the court could find hundreds if it had to.

Most people have only the vaguest recollection of details from news reports they heard days and weeks before. Meanwhile, even those with champion memories will try, with rare exceptions, to narrow their gaze to what is presented at trial and follow the judge's instructions as best they can.

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We're not saying pre-trial publicity never influences juror behavior. But it is rare, and the news reports and legal commentary usually must tilt overwhelmingly for or against the guilt of a defendant in a particularly lurid way. Such a description simply doesn't apply to the Bryant case. Those who seem to sympathize with the alleged victim and those inclined to give Bryant the benefit of the doubt have been fairly evenly matched in news reports and indeed in commentary ever since the L.A. Lakers star was arrested more than a year ago.

So why all the concern about a fair trial being at risk? In Judge Ruckriegle's case, the worry is perfectly understandable: It's his job to protect the legal rights of those who appear in his courtroom. He vastly overstepped his constitutional authority two months ago when he issued an order barring publication of material already in the news media's hands, but there is no doubt he must prevent courtroom proceedings from becoming a circus.

However, not every critic of pre-trial publicity can boast motives quite so pure. Some who claim to worry about whether Bryant can get a fair trial seem in fact to be more disturbed by the taste of American news consumers. Why do so many people follow such tawdry spectacles as Bryant's arrest and trial, these refined commentators demand to know. And what does it say about the base motives of the commercial media that they stoke this unseemly public voyeurism rather than circle their wagons around the Sixth Amendment's guarantee of an impartial jury?

Such critics seem to believe the authors of the U.S. Constitution simply forgot to rank the importance of the amendments in the Bill of Rights and that if they had, the Sixth would outrank the First.

Hardly. As the U.S. Supreme Court said in a famous 1976 case known as Nebraska Press Association vs. Stuart, "it is inconceivable that the authors of the Constitution were unaware of the potential conflicts between the right to an unbiased jury and the guarantee of freedom of the press. The unusually able lawyers who helped write the Constitution and later drafted the Bill of Rights were . . . intimately familiar with the clash of the adversary system and the part that passions of the populace sometimes play in influencing potential jurors."

If "the authors of these guarantees, fully aware of the potential conflicts between them, were unwilling or unable to resolve the issue by assigning to one priority over the other, it is not for us to rewrite the Constitution by undertaking what they declined to do," the court concluded.

Twenty-eight years later, all we can add is, Hear, hear. So let jury selection begin.

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