'Pretending the web doesn't exist will not serve justice'
For most of the 20th century, newspapers understood sales could be built on extensive reporting of court cases. So most of the 20th century also saw a steady extension of the restrictions on reporting that might prejudice prospective jurors or influence the evidence of witnesses when a case came to trial.
Trainee journalists were required to learn the detail of the law on contempt of court. Judges liked to summon an editor from time to time and threaten him with a spell in the cells pour encourager les autres. The editors didn't like that, as a careless reporter would learn when the boss got back to the office.
In the last 20 years, the mainstream media – newspapers and television – have largely tired of the old style of verbatim court reporting. The press benches in most courtrooms are entirely unoccupied. They came to prefer taking part in the investigation or second-guessing the outcome: shadowing the police, taking pride in getting to witnesses and identifying suspects. National news editors press their reporters to analyse a trial in advance. Only the most notorious trials warrant daily reports on the evidence as it unfolds. The contempt of court defences are daily probed.
Among the tabloids, the criminal justice system itself often appears to be on trial. As for defence lawyers, they may get credit in TV dramas for snatching the innocent from the jaws of punishment but, in the real world, their standing is in the basement of public esteem, with traffic wardens and politicians.
Even that change in the style of mainstream media reportage has been overtaken by the unregulated content on the internet, where material that is prejudicial by any definition appears on countless sites, hit by millions of visitors. The dividing lines between fact, allegation, rumour, fiction and deliberate fabrication are completely blurred. The courts seem paralysed and unable to acknowledge the internet is in danger of overwhelming the old defences against publication of prejudicial material.
In December, in the first case of its kind, a defence lawyer in Tennessee attempted to have the venue for the imminent trial of his client moved because false and fabricated accounts of the facts of the case on YouTube and blogs may have prejudiced prospective jurors and witnesses. Attorney Philip Lomonaco of Knoxville, Tennessee, had his first application to the Eastern District Court dismissed. The appeal outcome is awaited.
The case is connected to an appalling murder of Hugh Christopher Newsom and Channon Christian in Knoxville on 7 January 2007. The young couple were apparently carjacked, abducted and both were beaten and raped before being murdered. Christian was strangled and Newsom was shot.
Three men and a woman have been arrested in connection with the rape, assault and murder and await trial later this year. Lomonaco's client is Eric deWayne Boyd, who was not involved in the initial crime but is accused of subsequently attempting to hide one of the accused.
The crimes generated understandable public outrage and considerable media coverage. They also provoked an explosion of internet attention with hundreds of blogs passing off rumour and deliberate falsehood as fact. The fact the victims were white and the suspects were black led to various white supremacist groups holding rallies at which the crowds were told gruesome but entirely false stories about mutilations of the victims. The speeches were filmed and dozens of clips uploaded onto YouTube.
Lomonaco says: "The blogs spread lies and helped create an urban legend surrounding the details of the final state of the victims' bodies – details meant to outrage and taint any jury pool. These untruths have created a fog of prejudicial publicity."
Lomonaco acknowledges the internet is accessible from anywhere but says the crucial fact is Knoxville, with a population 130,000, is too small to allow a reasonable chance of finding jurors whose views have not already been formed on the facts of the case. He would prefer the case to be relocated to Memphis.
While there have been no such attempts in the UK to claim mistrial on the basis of prejudicial internet material, the time may not be far off. In Scotland, Donald Findlay QC is disturbed at the reluctance of legal authorities to acknowledge the serious problem that arises not only in high profile trials but in mundane cases where a Google search will produce assertions about key evidence that the jury will have to decide in court.
"The establishment position is based on what might be the case in the old-style media: that it would be open to any individual prospective witness or juror to go along to The Mitchell Library and read up back copies," he says. "They say the internet is no more than an extension of that. This misrepresentation is combined with steadfast insistence that the juries are able to do what they are instructed by the trial judge when he tells them to disregard all other accounts they may have heard.
"I don't think that's good enough. Prejudicial publicity is our real problem in the criminal courts these days. It's very serious. And the biggest part of the problem is the internet. For example the courts go to great lengths to excise any material that may refer to previous convictions of the accused. But it's not the rare obsessive going to the Mitchell Library that makes a mockery of that. The fact is anyone can put the name of the accused into Google and come up with a complete history of the investigation and all the accused's previous convictions in a second. Don't tell me jurors don't do it when they get home after the first day of a trial."
Findlay has been involved in many of the trials following the most notorious crimes in Scotland for quarter of a century. One of the grounds of the Luke Mitchell appeal to be heard next month cites the refusal to move the trial away from Edinburgh. Findlay is not impressed by the reluctance of the courts to admit there is a problem.
"They use the slippery slope argument," he says. "Once it is acknowledged juries may form views about a case based on information that is not led in court then where will it all end? But that leads to the nonsense that if the editor of a newspaper published on the morning of a trial the name of the accused with a list of previous convictions and suggestions for other nefarious activities he may have been involved in then the editor would go to jail. But if someone puts the material on the internet then nothing happens."
Lomonaco also draws attention to the difference between the internet and mainstream media. Printed newspaper stories, even with inaccurate or prejudicial content, have a short currency.
Is there an obvious answer? Findlay's view is robust: "People have been saying they're 'looking into it' for years now. But that's like me looking into a hole in the road outside my house. What I really want is for someone to come and fill it in.
"I don't have an easy answer but I do think if we accept we can't control or stop the internet then maybe we have to think again about how we manage juries. Jury vetting. What I do know is pretending the internet doesn't exist won't serve the interests of justice."