Media Watch

Worthington trial judge losing patience with media

As those following the trial of accused killer Christopher McCowen are aware, Barnstable Superior Court Judge Gary A. Nickerson does not suffer fools gladly.

Halting the court proceedings on Thursday, Nickerson rebuked a producer with CBS's "48 Hours" for ordering a cameraman to film footage of jurors  of people leaving the courthouse a day earlier, footage which inadvertently -- according to CBS -- included that of jurors. Nickerson told the producer that he was mulling whether to hold CBS in contempt -- followed by possible incarceration for those involved and a stiff fine.

The following day, with jurors out of the courtroom during a morning break, Nickerson said a witness had been interviewed in violation of media restrictions imposed at the start of the trial.

While this was not  "expressly stated" in the restrictions, Nickerson said, witnesses are not allowed to discuss the case or their testimony with the media "until released by the court."

"So in effect," Nickerson said, "the witnesses are off-limits until all the testimony" is complete. "I am now expressly stating it -- witnesses are off-limits to the media."

Nickerson said the witness, whom he did not identify, was interviewed by CourtTV, which is providing live coverage of the trial.

CourtTV legal analyst Beth Karas stood and acknowledged that CourtTV had interviewed the witness. "It wasn't me," Kara said apologetically, setting off laughter in the court. Karas also did not mention the witness's name, but most likely it was Shawn Mulvey, who finished testifying earlier that morning.

Karas went on to say that the interview was broadcast live and added, "it wasn't that substantive," prompting more laughter. To which Nickerson responded, "It's refreshing to hear a reporter say that" -- more laughter.

Further insight into Nickerson's diminishing patience with the media came during a hearing held at 3 p.m. Friday on whether to cite CBS for contempt, after jurors had been released for the weekend.

Attending for CBS were two lawyers and the "48 Hours" producer and cameraman involving in filming footage of jurors leaving the courthouse on Wednesday.

Once again, Nickerson cited the order he imposed on media coverage, which forbade "any contact with any jurors until those jurors were discharged" and no photographs or video footage "to be made under any circumstances."

Nickerson said he was trying to "walk the fine line between recognizing the very real duties of the media to report" and his obligation to ensure "a fair trial" for McCowen, who is accused of raping and murdering fashion writer Christa Worthington in her Truro home in January 2002.

Had the incident occurred in the courtroom, Nickerson said, and he witnessed it, "I would have dealt with it on the spot" and found CBS in contempt. The judge added that he was told by a court officer who witnessed the incident that the CBS cameraman said he was told to obtain the footage by the "48 Hours" producer.

The lawyer who spoke on behalf of CBS expressed "very sincere apologies" for the incident, which he described as "an honest but a serious mistake." When confronted by the court officer, the cameraman proceeded to film over the footage of jurors, about 20 to 30 seconds in length, according to the lawyer. The lawyer also produced the videotape in question.

"To say the people involved are truly apologetic would be an understatement," the lawyer told Nickerson, emphasizing that this was a mistake CBS "won't make again."

Nickerson initially banned the CBS film crew from court Thursday while allowing CBS to keep a reporter in court and receive access to a live "feed" of audio and video footage of the trial. In response to CBS's actions, Nickerson said he was considering something short of contempt, such as a stricter "protective order" against CBS (this reporter had to leave the courtroom shortly after 4 p.m. Friday before Nickerson decided on the matter).

Whatever actions Nickerson took, assuming he did not hold off on a decision until next week, the reasons for his growing exasperation with the media became clearer during the hearing.

CBS had also "taken it upon itself," Nickerson said, to place "a large amount of equipment in court" at the start of the trial. At one point in the trial, the same CBS producer later taken to task for the footage of jurors had repeatedly tried to load a videotape in court, "totally oblivious" to this distracting jurors, Nickerson said. In a sidebar to follow, Nickerson spoke with the producer and asked him to refrain. Yet later that day, the producer did the same thing "repeatedly," Nickerson said.

As if CBS hadn't tested Nickerson's patience enough, Nickerson said he was told a CBS crew had "followed home one of the attorneys in the case." While this did not violate the media order issued by the judge, "it does set a tone," Nickerson said with thinly veiled exasperation.

A tone, safe to say, that any media scribe wishing to cover the trial would do well to avoid.