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U.S. District Court Judge Nancy G. Edmunds, who is overseeing the corruption trial of ex-Mayor Kwame Kilpatrick has a reputation for being a first-rate judge.
But Edmunds is attracting attention because she appears to be unusually concerned with what the media can report during jury selection in the Kilpatrick case. Her actions have prompted Herschel Fink, a noted First Amendment attorney, to write her a letter on behalf of the Free Press that raises concerns about possible violations of the First Amendment.
In what is an extraordinary case, Edmunds issued an extraordinary court order before jury selection. It's one I had not seen before in federal court.
The order goes like this:
“The media is not permitted to blog about jury selection or otherwise provide any detail that may enable a prospective juror to be identified.”
That order seemed to contradict the tradition -- and the law -- that gives the media nearly free reign to report on what happens in open court.
On Thursday, on the first day of jury selection, Edmunds chastised the media after the lunch break, saying some outlets had violated her order. She was particularly angry at WDIV, which made it appear as if it was blogging from the courtroom, where the press is barred from bringing in electronic devices. In actuality, the reporter left the courtroom and blogged from elsewhere, but the station's website did provide a lot of details about one juror, including age and the name of his employer, which made him fairly easy to identify for those who know him.
The issue of blogging is especially complicated.
Edmunds said the media cannot, as she put it, “blog” about jury selection. What does that even mean in this digital age? That reporters can’t report via Internet? That you can’t report on the jury selection if your news website is called a “blog” rather than a news website?
I called court spokesman Rod Hansen to get a comment from the judge.
Hansen said Court Administrator David Weaver indicated that judicial employees cannot speak on pending matters or cases that come before the court. "Clearly that would apply to a judge presiding over a case," Hansen said.
I spoke to Fink, who talked about the letter he fired off to Edmunds on Friday.
“I’ve communicated to the court that the Free Press is distressed about her response to the coverage of the jury selection process,” he told me.
He said he strongly conveyed in the letter his feelings about Edmunds trying to block the press from publishing information that is publicly disclosed in court.
“I believe that very well constitutes prior restraint, a violation of the First Amendment,” he said. When I spoke to him late Friday, he had not yet gotten a response.
On Thursday, after she admonished the press, and threatened to kick the media out of the jury proceedings if it violated her court order again, Edmunds then implemented some reasonable safeguards to protect jurors from revealing too much in court.
She told each juror not to disclose the name of their hometown or workplace. And she said if there was anything they didn’t want to talk about in open court, they could tell her at a “sidebar” conference with the other attorneys so the media and court spectators aren't able to hear. Interestingly, Edmunds began using sidebar conferences, perhaps a little too much, and no one outside of the lawyers and the judge knows if the information under discussion would have been the things usually discussed in open court.
Edmunds could have handled this all very differently and probably received much better results. She could have invited members of the media into her chambers and asked that they be sensitive about reporting certain information. I think that would have been far more effective than her court order.
Granted, Edmunds is only trying to do the right thing and protect jurors and the integrity of the court process. But the court order was an extraordinary move, especially in a trial as important as the Kilpatrick case, which raises important issues and has so much public interest.
Eric Freedman, a former Detroit News reporter who is a lawyer and journalism professor at Michigan State University, said judges must follow a fine line in controlling what is reported from their courtrooms.
"What goes on in open court is, by definition, open not only to journalists but to ordinary citizens who see and hear it," he said.
"While judges can certainly take precautions to prevent lawyers and court officials from disclosing names or personal information about prospective jurors, they can't violate the First Amendment by gagging reporters and spectators."
