The Clint Eastwood-directed feature film “American Sniper” set industry box office records in its opening days.
Millions watched this dramatized biography about Navy SEAL Chris Kyle. In the last scene, Kyle was murdered. The film depicted the hero that Chris Kyle was. It then closed with his senseless death as he and a friend were shot by a third veteran suffering from post-traumatic stress disorder, Eddie Ray Routh.
Just days after the film won nine of the 27 Academy Awards for which it was nominated, some of its audience served on the jury that convicted Routh. Go ahead, read that sentence again.
It was noted during that jury-seating process known as “voir dire.” When asked, several jurors indicated that they had just seen the movie. It was met with little controversy.
The court trusted those jurors who affirmed they could disregard anything they knew about the trial from media depictions. They pledged they would make a decision only on the evidence presented at trial.
The Sixth Amendment right to an unbiased jury rests upon this pledge. I wonder how and if they were able to do it.
The murder trial of Robert Durst, a millionaire real estate heir charged with first-degree murder, promises to be a significant media event. It, too, has all the trappings of a movie. In fact, it already is. The Home Box office documentary series “The Jinx” profiles the life of a man whose wealth is exceeded only by his eccentricities, and a number of murders for which he was suspected but never convicted.
Subtitled, “The Life and Deaths of Robert Durst,” the making of this film resulted in the recording of what may be an actual confession. Taking a break during filming, Durst spoke out loud to himself while still wearing a microphone. “What did I do? I killed them all.”
In this example, media produced evidence that precipitated the arrest of Durst. Here, media producers are players in the story they are telling. “The Jinx” is one of several contemporary examples where investigation and prosecution are mingled with the entertainment industry.
Of course, to be entertaining, the emotional aspects of the story must be emphasized. No worries about hearsay or other evidence not permitted at trial. It’s about the story and, ultimately, the box-office receipts.
Unless, of course, the media content is an agenda-driven documentary or feature film such as “Devil’s Knot,” with Reese Witherspoon and Colin Firth. With name-brand stars and a big budget, “Devil’s Knot” is the most recent of many films supporting the cause of three teenagers who were convicted in the 1993 murders of three children in West Memphis, Ark.
Dubbed “The West Memphis Three,” two of the defendants were sentenced to life in prison. The third was sentenced to death. They now have been released. The cause of the West Memphis Three became a celebrity cause in the media/entertainment industry. Three documentaries, several books and TV programs such as the CBS’s “48 Hours” and “Piers Morgan Tonight” continually raised the question whether the West Memphis Three were wrongfully convicted.
In 2002, recording artist Henry Rollins enlisted vocalists from various hip-hop, punk and metal bands to create a compilation album. The proceeds were used to fund legal defense for the West Memphis Three.
Sensational media reports about ongoing investigations and prosecutions are now in the form of advocacy.
The matter is not simply whether audiences have formed opinions about defendants. Rather, courts must recognize that media encourages audiences to have specific opinions. This increased entanglement of media and criminal trials requires adopting new judicial remedies if Sixth Amendment rights are to have any significant meaning.
Relying on a potential juror’s own estimate of their ability to disregard opinions already formed and be “unbiased” is not reasonable.
Justice was probably done in the Routh conviction. Maybe justice was done in the case of the West Memphis Three. Hopefully justice will be done in the upcoming trial of Robert Durst. When life or liberty are at stake, “probably,” “maybe” and “hopefully” aren’t good enough.
So, do you want to watch the movie, or wait until the trial comes out?
Column by Kevin Qualls, Professor of mass communications
