This morning’s Daily News included a new angle to the corruption trial of State Senator Vince Fumo.  According to Fumo’s lawyer, Dave Shapiro, the coverage of the case is “so pervasive” so as to influence the jury.  He’s asking the judge in the case to specifically question the jury to see if they may have been exposed to this coverage.  Prosecutors disagree with that assessment and say there’s no more coverage in this case than other high profile corruption cases.   As a blogger, I was especially interested in Shapiro’s specific mention of the Inquirer’s Fumo Trial blog in his argument.  From the Daily News:

Yesterday, defense attorney David Shapiro argued that media coverage of the trial has been unprecedented, including not only news stories and editorials, but “things like a blog, where the reporter sits in the back of the courtroom every day and in real time gives his spin of what is happening.”

The Inquirer blog is essentially a series of live chats in which the reporter in the court room provides minute-by-minute details and some quotes by the judge, witnesses and attorneys.  Such a format allows the writer very little time for digestion and comprehension of what’s happening let alone the luxury of providing the spin and commentary claimed by the defense.  I know.  I’ve done it.  It’s hard enough to make sure everything is spelled right and I’m not accidentally mixing my q’s and g’s. (Don’t ask.)  According to the story, Judge Ronald Buckwalter seems to agree:

“I thought it’s a good service for people who want to keep up to date on what’s going on in the trial,” Buckwalter said, “without any of the opinions that are sometimes offered or slants that are sometimes offered in [news]paper articles.”

So I found an expert on criminal trials to see if he could give me any insight into whether live blogging could be any more problematic than, say, cameras in a courtroom. I spoke to Temple University Law Professor Edward Ohlbaum who said that judge’s concerns with television coverage is in the theatrics that it invites from the attorneys.

“Oh my god, here comes O.J. Simpson, revisited,” said Ohlbaum.

When it comes to blogs, however, he indicated that it would be up to a judge to keep track of the content on such a platform.  I asked what he thought about the judge’s reaction to the defense’s mentioning of the blog.

“It sounds to me like the judge has actually done his homework,” said Professor Edward Ohlbaum, “It sounds like he has found the blog to be more descriptive than evaluative and in his view, this is probably more current and more descriptive commentary about what’s going on in the trial.”

He also said that “the judge would have a different slant if this was a blog that was laden with opinions and evaluations and analysis and then he might see the need to take some further action.”  According to Ohlbaum, since it appears that Judge Buckwalter had already evaluated the blog and found there to be “no harm, no foul,” he probably decided that, “the last thing [the judge] was going to do was alert the jurors to a source of information, which perhaps they do not know now exists and to which they may tune in when that’s exactly what [the judge] do[es]n’t want to have happen.  It’s like telling someone to close their eyes and not think about a pink elephant.”

So I wondered, given that the judge was pretty well informed on the coverage being given to the trial and the use of real time blog, was this just a desperate reach for the defense, a sort of “Hail Mary” pass?  Was it a mistake for them to bring it to the attention of the jury?

Professor Ohlbaum disagreed.  “I’m sure they’re sincere in their request,” he said. “They think that’s exactly what needs to be done to make sure that Senator Fumo has a level playing field.”  Though he also said that their request to have the jury specifically questioned about their exposure to the blog could have been “a bit exaggerated” and that

So now that blogging is apparently becoming a tool in the coverage of trials,  I asked Professor Ohlbaum whether there should there be any special considerations or standards to guide the use of live blogging in the future.

“I don’t know how widespread blogging has been with respect to trials or high profile trials,” said Ohlbaum.  “There’s also a difference between a blog being produced and written by a reporter covering the trial.  That’s more complete record than the reporter would otherwise be filing as opposed to a blog that solicits or even invites contributions from other members of the public who then come forward with their opinions.  That would be the kind of thing that would be of concern to a judge if she felt that this kind of thing was being looked at wide scale.”

Having gotten the law professor’s point of view on this incident, I wanted to hear from a journalism expert who could speak to both the usefulness and potential ethical pitfalls of such an activity.  Bob Steele is the Eugene S. Pulliam Distinguished Visiting Professor of Journalism at DePauw University and the Nelson Poynter Scholar for Journalism Values at The Poynter Institute.  He emphasized that the focus when covering a trial via a blog should not be on the platform but on the ethical standards that dictate good journalism.

“The journalist must make sure that the story being reported is accurate and fair whether that story is being reported in a newspaper, on a radio station or via a blog that is presented on the internet and whether that blog is live or posted with some delay with an editing process to it,” said Steele.

Since I had just called him a few minutes earlier, he didn’t have a lot of time to review the entire contents of the Fumo blog but in his quick review of yesterday’s proceedings he found at least a couple points that, to him, were troubling.

“There was at least one point in here in which the reporter, made an observation about a witness and the witnesses mood and the way in which the witness was responding to questions in that particular case.

(At 10:54, the blog reads: Snyder doesn’t seen especially happy to be on the stand. His answers are somewhat taciturn.   Earlier, he told the jury that Fumo was both a customer and “a friend.”)

“McCoy [the reporter] may be saying that with a degree of expertise having covered this trial for a period of time and in fact may be correct but that is an assertion in that particular case to be making the statement that the witness is not especially happy and that his comments are somewhat taciturn.  That’s the kind of element that concerns me about blogs.”

Another point occurred later that afternoon when the reporter corrected a misstatement that he had made about 10 minutes after he made it.  Such “read behind” editing can be problematic said Steele.

Of course, descriptions of witness moods and actions can be found in stories about trials all the time.  The difference, according to Steele, is that such words and descriptions only make their way into a story after a second set of eyes - an editor - has read them and questioned them.  Since neither of us knew the process by which the Fumo blog went from courtroom to a user’s living room, we moved to a more general conversation about how news organizations are using live blogging to cover events like trials.  Steele made the general observation that in more and more cases, cutbacks in newsrooms have meant that reporters are often on their own when it comes to live blogging.  In still other cases, he said, journalists are instructed to jazz things up a bit with such coverage.

“Often times you have journalists who may not be as experienced and covering certain beats and so often being told by the bosses at the news organizations, ‘You know, I don’t just want you reporting on this, I want you blogging and blogging live,’” said Steele, “and often times what they’re told is, ‘I want some edge to it, I want some attitude to it.  I want more than just an account.  I want your voice in it, by golly,’ and that’s driven by a variety of factors and that concerns me a lot, journalistically and ethically.”

Again, it’s important to note that at this point we were speaking in general terms and not referring specifically to the blogging that’s going on in the Fumo Trial.

Overall, Steele explained the blogging was just another step in the evolution of covering trials and that journalists are a vital part of making sure that the legal system is functioning properly.

“I think it’s very important for journalists to rigorously defend their right to be in courtrooms and to cover the criminal justice proceedings or civil justice proceedings on behalf of the public,” he said.

But, he added, it’s important to ask, “Is there anything that this journalist is doing in the physical act of liveblogging that could be construed to be in any way distracting in the courtroom that it might in some way by his actions be noticeable to the jury in a way in which they would not be able to focus on their responsibility as jurors?”

I wondered, then, was the reaction of Fumo’s defense attorney, in pointing out the blog and asserting that the reporter was “giving his spin on what is happening,” another case in which the word “blog” became a four-letter word that conjures up images of pajama-clad pundits, spouting opinions from their basement.  Can journalists use this tool without people assuming the worst.

“I think journalists can use blogs effectively but I do have considerable concern about how often blogs move from substantive straight news reporting to not just analysis but opinion,” said Steele, “and I think that can be dangerous if the blog is presumed to be a news reporting account of what takes place.”

With respect to coverage of trials, Steele says the danger is that if state legislators or judges in higher courts perceive that journalists are conveying information in a way that’s sloppy or inaccurate, they may take action to put more restrictions on access to courtrooms.

“I’m not arguing that journalists should be banned from blogging in the courtroom,” said Steele,  “What I’m saying that is that journalists are using these tools in ways that are going to gather and present information more rapidly and in some cases differently than we have in the past, we must have a system of quality control that is built in.”