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Legal News

: Lawbeat

Another nail in the coffin of judicial openness

By Mark Obbie

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An unguarded comment by an Atlanta judge to The New Yorker's Jeffrey Toobin gets the judge booted from the prosecution of courthouse murder-spree defendant Brian Nichols. Superior Court Judge Hilton Fuller, whose controversial handling of the case had drawn national attention in the first place, was quoted by Toobin as saying this about Nichols' mental-health defense: "That's their only defense, because everyone in the world knows he did it." Now the judge is accusing Toobin of breaking an agreement to keep the judge's comments on background. On Tuesday, the Atlanta Journal-Constitution's Beth Warren wrote:

Fuller said Tuesday the conversation was meant to be off the record and was "deeply disappointed" that his comment was included in the article. "It was a lengthy conversation for background," said Fuller, reached by telephone. "I don't recall saying that, but I'm not saying I didn't say it. He was not to quote me with any direct quotations," the judge said of Toobin. Not so, says Toobin. "The conversation was clearly on the record," Toobin said by phone Tuesday. A fact checker also verified details of the story with the judge's office last week, Toobin said.

Greg Land of the Fulton County Daily Report has the same back-and-forth in his story, with Fuller adding that the New Yorker fact checker checked other details about the case but not Fuller's comments on Nichols' evident guilt. That should be easy enough for The New Yorker to rebut, with the fact checker's statement or notes, should it come to that (and it probably won't). The more lasting impact is the chilling effect this has on any other judge who might choose, as Fuller explained, to help a writer navigate a complex case (and put his spin on his controversial rulings). Legal ethicists, of course, shudder at the thought of a judge speaking to a reporter while a case is pending (or anytime else, for that matter). But good reporting depends on access and insight, which rightly can come -- on the sly, or in the open -- from the judge. It's certainly not Toobin's fault, in my view, that this case will be a shot across the bow of any other judge hoping to have that kind of sit-down with a writer. He couldn't ignore the comment, after all. But that is, in fact, how the case will stand as an example in the sorry annals of bench-press relations.

Full post as published by Lawbeat on January 31, 2008 (boomark / email).