Sunday, March 1, 2009

Free Speech under Fire in Knoxville Rape and Murder Trial

Judges are able to change the way we live our daily lives by decree to a disturbing extent. The ban on prayer in public schools was by judicial fiat. Forcing parents to bus their children across town for the sake of racial balance was by judicial decrees.

A judge in Tennessee presiding over an infamous trial is going to extraordinary lengths to seek a jury pool uncontaminated by bias. World Net Daily reports as follows.

A judge in one of the nation's most brutal carjacking and murder cases has openly questioned in court whether news websites – such as those covering his trial – should be permitted to allow open and anonymous "comments" sections at the bottom of Internet-posted stories.

"I'm saying if there is a profit, there is a responsibility that goes with it," said Criminal Court Judge Richard Baumgartner of Knox County, Tenn., to an attorney for the Knoxville News Sentinel.

"This is not the Internet. This is a site created by you in which you invite comments," the judge stated. "This is something you control."

Richard Hollow, the newspaper's attorney, argued that a court-imposed policy on the "comments" sections would be an unconstitutional infringement of First Amendment free speech rights.

"What the court is asking us to do is … set up a board of censorship," Hollow said.

The concerns of Judge Baumgartner leave me extremely puzzled. The crime in question involves a young couple in their twenties who were kidnapped in the course of a carjacking. They were both tortured and gang raped, possibly over a course of days. Because the perps were African American and the victims white, there was a virtually total blackout in the news media. Many believe that had the roles been reversed with African American victims that there would have been a media feeding frenzy.

Judge Baumgartner seems to believe that the comments on new sites are inflammatory, that they deprive the accused of their right to a fair trial. I disagree. Even the most dispassionate recitation of the facts in the case elicits visceral revulsion and anger. It is not possible to listen to the blood curdling accounts of the sadistic rape, torture and murder of both victims without feeling fury. Such a feeling of outrage is healthy. It is not the job of the news media to fashion the minds of the jurors in such a case. It is the job of the judge to remind the jurors of the standards to which justice must conform.

The more heinous a crime is, the greater the certainty must be that an innocent person is not being sentenced in the heat of the moment. The thought of a guiltless person being branded with infamy should be a sobering thought to anyone who sits in judgement over a man's life. A judge can within the confines of his courtroom impress upon jurors the gravity of this obligation. It is in the courtroom that the sentence expressive of collective indignation is assigned rightfully to those established as guilty. This is a weighty obligation. A murder victim dies by a single hand. A person who is wrongfully accused dies at the hand of a judge and twelve jurors, along with an entire system that has worked in concert against him. When a person is wrongfully convicted, there is a collective guilt incurred by society that does not exist in a crime by a private individual.

Judge Baumgartner has overreached in attempting to censor the press. In his courtroom rests an awesome burden of responsibility. By losing sight of this, he loses the opportunity to inculcate in his jurors the proper sense of awe that should accompany their deliberations.

The Knoxville murders tear the curtain away from the ugly open secret of African American racism. In so doing it brought out a lot of public anger, some of which spilled into reactive racism on the part of whites.

There is no way Judge Baumgartner can shelter jurors from the feelings in their hearts, from instinctive empathy with the victims, revulsion at the crimes committed and even the latent racism that most of us tame with reason. By attempting to regulate the media handling of the Knoxville murders, Baumgarter reaches far beyond his proper mandate as a judge. Additionally, he trivialises his role as a judge and underestimates the potential of jurors to balance emotion, reason and the law.

Judge Baumgartner would be making a big mistake if he attempted to regulate the media in the upcoming trial. He should focus on his jurors and their proper instruction. This is the best he can do. This is all he can do.

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