The Press and the Suspected Killer
Commentary by Steven A. Smith
A suspect has been arrested. And now the case of four murdered University of Idaho students enters its second act.
Act 1 focused on the crime and the weeks’ long search for a suspect. And as I wrote in an earlier column, that process presented the press with numerous ethical issues.
Act 2, the legal process that now unfolds as the suspect is brought to trial, presents an entirely new set of ethical concerns. And it presents a classic constitutional conflict, a collision of the First and Sixth Amendments.
To recap, a Washington State University Ph.D. student, Bryan Christopher Kohberger, 28, was arrested Dec. 30 at his parents’ home in the Pennsylvania Poconos. Aggressive reporting that cites sources close to the investigation tells us police focused on Kohberger before Christmas as they closed in on a Hyundai Elantra that had been photographed near the crime scene and simultaneously traced DNA evidence to Kohberger family members.
At a press conference detailing the arrest, Moscow Police Chief James Fry and Latah County Prosecutor Bill Thompson refused to disclose investigation details because Idaho state law requires that case files be closed until released in court. They asked gathered reporters to exercise patience and wait for information to be officially released.
In response, reporters asked precisely the questions Fry and Thompson said they could not answer. As might have been predicted, social media response was to attack the journalists.
But the respectful conflict seen at the press conference highlights the significant constitutional clash at the heart of this and similar high-profile cases.
The Sixth Amendment to the Constitution reads “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…”
To comply with that constitutional mandate, police and prosecutors routinely hold back as much information as possible so as not to taint a potential jury pool and jeopardize the right of the accused to a fair trial.
At the same time, the First Amendment prohibits the courts from keeping the press from aggressive reporting. And it is the ethical responsibility of the press to pursue information with all the energy that can be marshalled.
That is why viewers saw reporters asking the very questions police and prosecutors were attempting to evade.
There is one fundamental truth in this constitutional dance.
Nothing police and prosecutors can do will keep information from the public.
It is perfectly ethical for journalists to seek information from people close to the investigation and to offer anonymity in return for that information. It is perfectly ethical for reporters to aggressively seek information from victims’ family members, from those close to the suspect and from anyone else who might provide some insight no matter how remote.
And as surely as the sun rises in the East, people will talk.
So how can a defendant receive a fair trial when the press is reporting every bit of information that can be unearthed?
The responsibility to ensure a fair trial belongs to the courts, not the press. When the First and Sixth Amendments collide, the judiciary cannot impose a gag order blocking press coverage. Such orders are rarely attempted and routinely thrown out as unlawful prior restraint.
But there are available, legal remedies.
The court can order a change of venue, moving a trial from the community where the crime occurred to a distant location where press coverage is less likely to taint a jury pool. A change of venue will almost certainly occur in the Kohberger case if he comes to trial.
While the court cannot gag the press, it can prohibit all officials involved with the case from making any comments or releasing any information connected to Khoberger’s prosecution. Such gag orders can apply to police, prosecutors and defense attorneys, as well as all other court officers. Violation of such a gag order can carry significant contempt-of-court penalties.
As the trial begins, the court can close jury selection to the public and press, protecting the identity of jurors and insulating them from outside interference. Then, as the trial progresses, the jury can be sequestered, meaning jurors can be isolated, most often in a hotel, and kept from outside press coverage and prejudicial conversations.
If Kohberger comes to trial, it is reasonable to expect all these steps to be taken.
Meanwhile, we are seeing that predictable constitutional dance play out.
Chief Fry and Prosecutor Thompson said last week they could not release the probable cause affidavit used to obtain the warrant leading to Kohberger’s arrest in Pennsylvania. State law prohibits the affidavit’s release until Kohberger appears in an Idaho court, possibly later this week. The affidavit will provide the first look at the case against Kohberger and some of the evidence investigators have collected.
But the legal prohibition has not prevented the press from finding sources close to the case – meaning the very police and prosecutors who cautioned reporters – who have by now likely revealed most of the relevant information.
Meanwhile, reporters have been swarming all over WSU and Kohberger’s Pennsylvania community, seeking some insight into the man and his motivations. As was the case when the murder was still unsolved, much of the reporting has been responsible and ethical, especially in the local news media. But there is a terrific amount of irresponsible reporting, too.
Just because the press is allowed to report freely and aggressively does not mean it should report everything.
Interviews with those whose knowledge of Kohberger is remote, at best, can spread false information that can prejudice a jury. The press has a responsibility to focus on people with direct, meaningful knowledge that provides true insight. Trust me, ethical journalists know the difference between insight and gossip.
Following any high-profile crime, some in the public argue it is unethical to repeatedly report the name of the suspect. Such reporting disrespects the victims, some argue. But holding back the name of the accused is not ethical. Journalists have an obligation to report what they know.
What truly disrespects the victims in this case is the repeated use of images taken from social media that highlight the victims’ sexuality. In the college world, such images are commonplace. There is no valid reason to use them in news reports.
One final note: Too many in the press fail to remember a fundamental tenet of our system – a suspect is innocent until proven guilty. We all want to believe the police have arrested the right man. But it is an ethical obligation to refer to Kohberger as an alleged killer. He will be a known killer only after conviction should that occur. Sadly, use of the term “alleged” has all but disappeared in recent years, particularly in the case of high-profile mass murders.
Act 3 to this horrific case will be Kohberger’s trial, assuming there is one. That act will present the press with yet another set of ethical challenges.
Chief Fry and Prosecutor Thompson were right about this: It is a process, long and involved, and often frustrating. All of us, press and public, must respect the process.
Steven A. Smith is clinical associate professor emeritus in the School of Journalism and Mass Media at the University of Idaho having retired from full time teaching at the end of May 2020. His columns reflect his progressive political views. Smith was raised in a Jewish home and is culturally Jewish. However, he considers himself an atheist, which is reflected in his writing. Smith is former editor of The Spokesman-Review in Spokane, Washington. As editor, Smith supervised all news and editorial operations on all platforms until his resignation in October 2008. Prior to joining The Spokesman-Review, Smith was editor for two years at the Statesman Journal in Salem, Oregon, and was for five years editor and vice president of The Gazette in Colorado Springs, Colorado. He is a graduate of the Northwestern University Newspaper Management Center Advanced Executive Program and a mid-career development program at Duke University. He holds an M.A. in communication from The Ohio State University where he was a Kiplinger Fellow, and a B.S. in journalism from the University of Oregon. Smith currently serves on the SpokaneFāVS Board of Trustees.
Thanks for this Steve. I just may use it in class next week.
Yours free of charge!
Very well said, Steve. You are right, reporters do not need to report everything and the word “alleged” needs to return to news copy.