The Cautionary Instruction: A tale of two rulings In Sandusky trial

The Pittsburgh Post-Gazette/Ipso Facto
June 8, 2012

Two rulings this week by the judge presiding over the trial of former Penn State assistant football coach Jerry Sandusky reveal a system amenable to openness but burdened with an antiquated view toward achieving accessibility.

The two rulings appear to be in conflict. Initially, Judge John M. Cleland ruled that the victims must use their names when testifying. The victims had asked the court to use pseudonyms to protect their identity.
Judge Cleland then revoked permission for journalists to tweet and email dispatches from inside the courtroom after the media sought clarification on the judge’s decorum order -- a set of ground rules for trial.

When the judge addressed the pseudonym request he wrote, “Courts are not customarily in the business of withholding information. Secrecy is thought to be inconsistent with the openness required to assure the public that the law is being administered fairly and applied faithfully." 


While Judge Cleland sought to provide openness on the one hand—he clamped down on a novel method of access provided through modern technological advances. Twitter opens Pennsylvania’s courtrooms in much the same way television opened courtrooms in Ohio, Florida and numerous other states.

Judge Cleland recognized this through his decorum order which initially permitted the use of electronic devices for courtroom-based communications. There were limitations. “The devices may not be used to take or transmit photographs in [the courtroom]; or to record or broadcast any verbatim account of the proceedings” in real time from the courtroom.

A number of media outlets, including The Associated Press and ESPN, filed a motion seeking clarification of the judge’s order.

The media’s motion argued that restricting the use of direct quotes was unconstitutional and the use of direct quotes should not be prohibited because doing so would, according to court documents, “risk diminishing the accuracy of reports on the trial.”

As a result the judge said he was "compelled to rescind" the portion of the order granting electronic-based communications because, based on the media’s motion, he finds his interpretation of the law “confusing to reporters, unworkable, and therefore, likely unenforceable.”

Juxtapose the electronic communication ruling with the witness identification ruling. Rejecting the use of pseudonyms for victims Judge Cleland wrote, "Arguably any victim of any crime would prefer not to appear in court, not to be subjected to cross-examination, not to have his or her credibility evaluated by a jury -- not to put his name and reputation at stake." Judge Cleland continued, "But we ask citizens to do that every day in courts across the nation." Yet, citizens interested in the Sandusky case will have to read about those witnesses in the next day’s newspaper.

Judge Cleland, with a couple strokes of a pen, made evidence in a high profile case both more open and less accessible -- at least by today’s modern means of access.

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