Jurisprudence Trial by Television

By Richard Lacayo

No one should have expected that the first court case to claim a huge television audience would center on municipal-bond trading. With a famous name linked to a sordid crime, the rape trial of William Kennedy Smith fits neatly into the usual daytime schedule of leering soap operas. For the same reason, it has turned out to be a test of whether TV cameras will turn the law into a brand of vaudeville. In a case full of senatorial bar hopping and a parlor game called Vegetable, it's already difficult to keep in sight the serious charges -- rape and battery -- at the trial's heart. It doesn't help when expert testimony on the alleged victim's underclothes is interrupted by a commercial for the Home Shopping Network.

Yet as justice collided with the video age last week, the impact of TV in the Smith case was as hard to judge as the defendant's guilt or innocence. The jury, which is sequestered at the close of each day, sees none of the television coverage. But the single inconspicuous camera in the Palm Beach County courthouse sends every word and gesture -- everything, that is, except the face of the alleged victim -- to a jury of millions. During some parts of the testimony by the alleged victim last week, the audience for Cable News Network climbed to nearly 3.2 million viewers, nine times what CNN usually draws those hours.

What those millions are seeing is a civics lesson spiced with scandal. "I think it's a second major dose of consciousness raising for the public about sexual crimes, following Anita Hill's testimony," says Lee Bollinger, dean of the University of Michigan law school. No less important, the daily coverage is a window onto the real conduct of trials. Without the cameras there, says Steven Brill, president of cable TV's Courtroom Television Network, "you would see 'ambush shots' of Smith and his lawyers going into the courthouse. Here you see dignity and solemnity."

To say nothing of monotony. In even the most sensational court cases, cross- examination draws out a story from witnesses in eyedropper doses. Expert testimony tends to be bloodless. The lacy bra admitted into evidence in Smith's trial seems less provocative when the garment is discussed by the "bodily fluids and tissue technician" of the Palm Beach sheriff's department.

< Viewers also learn to appreciate that in courtroom testimony, demeanor and delivery are crucial. Prosecutor Moira Lasch must still be regretting that she called Anne Mercer to the stand. On the night of the alleged incident, Mercer went with Smith's accuser to Au Bar, the tony Palm Beach hangout where they met Smith in the company of his uncle, Senator Edward Kennedy, and Kennedy's son Patrick. Lasch got what she wanted from Mercer: testimony that the alleged victim yelled "rape" early on. The jury may remember her fashion-mag appearance and soulless manner.

Then there is the question of whether televising this kind of trial, for this kind of alleged crime, is appropriate at all. For the accuser, the bitterest part of a rape trial is the experience of having her personal life spread before the court, and usually torn apart by the defense. Gavel-to-gavel coverage only magnifies the misery -- perhaps even more so in this instance, as the accuser's face is concealed on camera in a way that protects her identity but also turns her into a cipher. The prospect of being at center ring in their own media circus may be discouraging other rape victims from coming forward Reported rapes in Palm Beach County dropped from 96 in April, when the Smith story broke, to 68 in November.

Nonetheless, Smith's accuser made moving and effective use of her two days on the stand. Her sometimes tearful testimony put defense attorney Roy Black in a delicate position. He subjected her to a no-stone-unturned cross- examination that revealed what he said were inconsistencies in her testimony on such matters as whether she screamed during the reported rape. But even restrained questioning of a purported rape victim can sound like an accountant torturing a political prisoner, which can alienate jurors. And at no point did the woman budge from her central contention: "Your client raped me."

Alan Dershowitz, the Harvard University law professor and outspoken defense attorney, thinks the tearful outbursts of Smith's accuser are affected by television. "You're playing to a bigger stage, to the world, and your gestures have to be bigger," he says. Unlike theater, however, TV is a medium geared to close-ups, where small gestures work too. On the stand, Senator Kennedy made his own play to the emotions in a subdued fashion. And even in a sensational trial, emotional high points may be less important to the jury than the persistent repetition of a bit of evidence that either side insists is crucial. Defense attorney Black spent much of last week hammering away at the mystery of when the alleged victim took off her panty hose, an issue that could support the defense claim that she invited sex with Smith by removing them before the couple went strolling on the beach. The prosecution is likely to stress the doctor's report that shows that Smith's accuser suffered injuries consistent with a rape.

In the end, TV may help the law by exposing the painstaking accumulation of facts required to prove guilt. It is a dispiriting truth, however, that viewers fail to demand fuller coverage of proceedings that don't involve Kennedys and panty hose -- like the trials of Manuel Noriega or S&L bandit Charles Keating Jr. But showmanship still counts. Would it be any surprise if the cameras tempted lawyers, witnesses and judges to posture a bit more than they already would for the jury? Maybe these matters were better understood back in 1962, when Raymond Burr, the star of Perry Mason, sought a meeting with Edward Bennett Williams, the famous defense attorney. In those days it seemed fitting that a make-believe lawyer should look for tips from a real one. It may soon be the other way around. Mr. Burr, check your messages.

With reporting by Cathy Booth/West Palm Beach and Andrea Sachs/New | York