ARTICLES

65

ARTICLE

THE VIEW FROM THE COUCH

Blake Gilson



“BOMBSHELL TONIGHT” blasts from my fifty-five inch

television, and I see a two-foot image of a blonde female in dark

clothing.

1

The lady is none other than television personality,

legal commentator, and former prosecutor Nancy Grace. I sit

back and prepare to become enmeshed in the latest events of

today’s trial.

Legal media coverage is not new, but it now comes with a

seemingly unprecedented focus on entertainment. The first half

of 2013 was packed full of drama, sex, and murder. The Jodi

Arias and George Zimmerman trials are prime examples.

2

The

media covered those events through a lens of entertainment,

hoping to create a foundation of understanding for non-legal

professionals. Like all news events, legal happenings are

packaged and sold to media audiences in which hype is

paramount, finer legal points are minimized, and events are

universalized.

3



Blake Gilson is an information technology professional in the oil and gas

industry. He resides in Houston, Texas, and his only legal training comes from sitting on

his couch watching legal battles on his fifty-five-inch TV.

1

. Television star Nancy Grace often uses this phrase. For an example, see

Spencer Kupper, Bombshell Tonight, YOUTUBE (May 7, 2012),

http://www.youtube.com/watch?v=7PFTivp_Hh8.

2

. The Arias and Zimmerman trials are certainly not the only examples of criminal

trials that garnered attention. See, e.g., Stephen Loiaconi, Nancy Grace: Casey’s

Deposition ‘Unbelievable’, HLNTV (Apr. 4, 2012), http://www.hlntv.com/article/2012/01/12/

nancy-grace-caseys-deposition-unbelievable (discussing an “unbelievable” development in

the Casey Anthony case); What You Need to Know About the MacNeil Trial, HLNTV (Oct.

7, 2013), http://www.hlntv.com/video/2013/10/06/martin-macneill-murder-trial-back

ground.

3

. See LANCE BENNETT, NEWS: THE POLITICS OF ILLUSION 15 (1996) (discussing the

multitude of factors that drive media hype).

66 HLRe: OFF THE RECORD [4:2

American audiences like drama, and my fiancée and I are no

different. We will pay to access it, we will watch commercial after

commercial to get it, and we want every detail. Television

producers know this and have found legal troubles to be a ripe

source of stories that a television audience will spend countless

hours obsessing over. Nothing demonstrates this better than the

criminal prosecution of Jodi Arias.

4

The salacious facts of the

case involved lust, jealously, lies, a brutal murder, and a young

attractive female with a made-for-TV personality.

5

A jury

ultimately convicted her of first-degree murder of her ex-

boyfriend Travis Alexander.

6

The Jodi Arias trial lured my fiancée and me in with the

same torrid narrative that hooked much of the American public.

A beautiful young woman accused of a horrible crime,

7

with

undertones of religious and sexual manipulation, unsurprisingly

(though somewhat unexpectedly) piqued our interest. Once

hooked, we could not help but stay up with the latest live

blogging and cable news coverage. The constant stream of blog

posts kept us hooked to the action during the day and our eyes

glued to the cable news coverage into the evening and night.

Television amplified the drama by obsessively focusing on

every intimate detail of the defendant’s and victim’s lives and the

graphic gruesomeness of the murder. The lineup of CNN’s legal

talking heads was impressive: Jane Velez-Mitchell,

8

Nancy

Grace,

9

Dr. Drew On Call,

10

and HLN After Dark.

11

Almost every

night, they each provided a wealth of commentary and slightly

different perspective on the day’s events. Accompanying them

4

. In fact, the media coverage became so intense that Ms. Arias asked the judge to

completely exclude the media from her sentencing, sparking a debate about whether the

case had become a public controversy. Jodi Arias’ Attorneys Seek to Bar Live Coverage of

Trial, CBS NEWS (Oct. 4, 2013), http://www.cbsnews.com/8301-201_162-57606180/jodi-

arias-attorneys-seek-to-bar-live-coverage-of-trial/.

5

. Though a full transcript of the argument is difficult to find online, quoted

portions of the closing argument are available online. Nancy Grace, Prosecutor’s Closing

Argument in Jodi Arias Murder Trial, CNN (May 2, 2013, 8:00 PM),

http://transcripts.cnn.com/TRANSCRIPTS/1305/02/ng.01.html (quoting Transcript of

Prosecutor’s Closing Argument in Jodi Arias Murder Trial, State v. Arias, CR2008-

031021-001 (Ariz. D. Ct. 2013)).

6

. TheCount.com, Jury Verdict Jodi Arias Murder Trial (Live in Courtroom),

YOUTUBE (May 8, 2013), http://www.youtube.com/watch?v=EtoA4m3O57s.

7

. See Grace, supra note 5.

8

. Jane Velez-Michelle, HLNTV, http://www.hlntv.com/shows/jane-velez-mitchell

(last visited Jan. 28, 2014).

9

. Nancy Grace, HLNTV, http://www.hlntv.com/shows/nancy-grace (last visited

Jan. 28, 2014).

10

. Dr. Drew On Call, HLNTV, http://www.hlntv.com/shows/dr-drew (last visited

Jan. 28, 2014).

11

. HLN After Dark, HLNTV, http://www.hlntv.com/shows/after-dark (last visited

Jan. 29, 2013).

2014] THE VIEW FROM THE COUCH 67

was a small army of guests that ranged from legal professionals

to body language experts

12

to jury interviews

13

to people who

personally knew those involved in the case.

14

HLN After Dark even physically constructed a replica of the

bathroom where the murder took place so that it could act out

the murder in utterly exquisite detail.

15

Each time, they told the

story from the different perspectives of the defendant and victim.

And what seemed like every night, HLN After Dark brought in

members of the public to discuss and cast decisions or “verdicts”

on key questions of the case.

16

Gathering twelve seemingly

ordinary people into “mock juries”

17

encouraged the audience to

play along, to think like jurors by evaluating the evidence and

arguments as active participants rather than passive spectators.

My fiancée and I irresistibly fell into this delusion, talking

constantly about our decision on each of the “verdicts” as though

we too sat on the jury. We knew the coverage was

sensationalistic, playing up each aspect by dissecting each plot

point with each night’s coverage, but we could not help ourselves

from engaging in the roleplaying egged on by the shows.

The courtroom drama itself was also addictive. The sparring

between lawyers was pure entertainment. It was difficult not to

feel a rush of excitement each time prosecutor Juan Martinez

took the podium to cross examine a defense witness.

18

The legal

jargon was initially a barrier to understanding nearly every

courtroom scene, but the commentators provided explanations of

key points. As the trial went on, we found ourselves easily

12

. Body Language Expert: Did You Catch Arias Doing This?, HLNTV (Feb. 11,

2013, 11:36 PM), http://www.hlntv.com/video/2013/02/11/body-language-expert-did-you-

catch-arias-doing.

13

. Two Arias Jurors to Break Their Silence to Dr. Drew, HLNTV (May 27, 2013,

11:39 AM), http://www.hlntv.com/article/2013/05/26/two-arias-jurors-speak-dr-drew-

tuesday.

14

. Nancy Grace Smacks Down Jodi Arias Friend, HLNTV (May 23, 2013, 9:34 AM),

http://www.hlntv.com/video/2013/05/23/nancy-grace-arias-verdict-hung-donavan-bering.

15

. Alexandra Thomas, Prosecution v. Defense: Two Sides of the Crime Scene,

HLNTV (Mar. 20, 2013, 2:58 PM), http://www.hlntv.com/video/2013/03/19/after-dark-re-

enactment-killing-scene; see Alexandra Thomas, HLN After Dark Reenacts Arias Killing,

HLNTV (May 29, 2013, 2:38 PM), http://www.hlntv.com/slideshow/2013/03/18/jodi-arias-

trial-evidence-murder-scene (photo gallery).

16

. Brian Stelter, Coverage of Murder Trial Bolsters Ratings at HLN, N.Y. TIMES,

Mar. 18, 2013, at B5, available at http://mediadecoder.blogs.nytimes.com/2013/03/17/hlns-

jodi-arias-coverage-helps-bolster-ratings/?_r=1.

17

. Id.

18

. See Ray Stern, Jodi Arias Trial: Prosecutor Juan Martinez’s “Meltdown” with

Murder Suspect, PHOENIX NEW TIMES (Feb. 26, 2013, 6:30 PM),

http://blogs.phoenixnewtimes.com/valleyfever/2013/02/jodi_arias_trial_prosecutor_ju.php

(“Arias . . . said in her third day of being cross-examined that [Juan] Martinez was

making her ‘brain scrambled.’ Even viewers who’d prefer to see her hang could

sympathize.”).

68 HLRe: OFF THE RECORD [4:2

picking up complicated lawyerly words. Voir dire, side bar, and

surrebuttal are new words added into my vernacular that I will

not soon forget.

What shocked me was how accessible the legal knowledge

became. I have no legal training, no legal education, and no legal

exposure of any kind outside of one random conversation about

playing a witness in a mock trial. While I might not have fully

understood the complexity within each situation, the legal

commentators narrated so well that they at least tricked me into

believing that I understood every legal issue at stake. Indeed,

during the commentary, the TV shows regularly provided the

perspective of both layperson and legal analyst. The legal analyst

regularly pointed out how the simplistic analysis from the

layman failed to account for the legal minutia that made one

side’s argument viable or totally nonsensical. This back and forth

dialogue facilitated the perception that I was rapidly learning the

law.

But, I knew even while listening to these conversations that

I was missing some of the finer points of the law. I sensed a

deeper decision involving more complicated legal questions

lurking somewhere beneath the gloss of media buildup. I got the

feeling that a much larger legal discussion lay just around each

turn, and it was a discussion that I was not going to hear. Even

so, the freshness of perspectives, topics, and new angles kept us

coming back for more. Even when coverage became repetitive, I

still could not bring myself to change the channel, instead letting

the TV fall into the background with only enough attention given

to keep an ear out for new facts, updates, or commentary.

The whole experience replicated the sensationalism found in

many other aspects of the twenty-four hour news cycle, where

news stories are rehashed again and again for a willing audience

hungering to consume each new fact.

19

Legal drama, inside and

outside the courtroom, has become entertainment for a public

intent on learning everything they can. It sure was for me.

19

. See, e.g., Lucy P. Marcus, Newton, Conn.: Why I Turned Off Social Media and

24-Hour News, HUFFINGTON POST (Dec. 18, 2012, 1:24 PM),

http://www.huffingtonpost.com/lucy-p-marcus/newtown-connecticut-why-i_b_2323029.

html (“I was drawn to . . . the 24-hour news channels, hungry for information.”); see also

BILL KOVACH & TOM ROSENSTIEL, WARP SPEED: AMERICA IN THE AGE OF MIXED MEDIA 2

(1999) (arguing that audiences hunger for stories full of “sensationalism, entertainment,

and opinion”). One viewer found the material in twenty-four hour media to be so

sensationalist that the viewer created a video montage using media coverage from major

networks, such as CNN. Bannedsquirrel9, Sensationalism Montage, YOUTUBE (Dec. 6,

2011), http://www.youtube.com/watch?v=cXc5fn6b9RI. For a comprehensive listing of

sensationalist stories that have garnered a great deal of public attention, see Andrew K.

Dart, News Media Sensationalism and Dishonesty, AKDART.COM,

http://www.akdart.com/med21.html (last visited Jan. 28, 2014).

2014] THE VIEW FROM THE COUCH 69

Nonetheless, my obsession with legal drama, while

perpetuated by TV’s legal talking heads, stemmed more from my

desire to be entertained than an interest in the legal aspect of the

events themselves. Legal ‘‘water-cooler talk’’ has a market

because the public has always been interested in stories with

intense drama, and such stories have been told in an oral

tradition since the beginning of history. After all, legal dramas

with scandalous subject matter draw more attention than dozens

of other stories.

20

Oedipus Rex, I am sure, would have made

excellent televised legal drama.

Rather than objecting to this obsession as commoditizing

legal suffering, we should accept the entertainment aspect of

legal drama as an inevitability. Not everyone agrees. When

responding to a question about cameras in the nation’s highest

court, Justice Scalia said in an interview with CNBC’s Maria

Bartiromo that he felt “there’s something sick about making

entertainment about real people’s legal problems.”

21

However,

while making the facts of a story into a form that can be

consumed by an audience in an entertaining way may be

sickening, such rubbernecking is unavoidable. The public wants

to know the details of the scandal and wants to be shocked by its

findings.

Yet the inevitability of using legal drama as entertainment

is nothing to mourn about. Packaging the legal matters into

television entertainment brings a nonlegal audience into the

legal system. The hype attracts the public to the story and

engages them in a way that the raw legal facts of a case often

will not.

22

While there is a possibility of confusion and

misunderstanding because the finer details of procedure may be

lost, many media legal analysts recognize the relative ignorance

of their audience and make an effort to explain the complex

statutes, processes, and jury instructions at issue. This process

spreads legal understanding and provides an opportunity for

20

. See, e.g., A. Drakontaidis, Why Is the News Media Obsessed with the Jodi Arias

Trial?, REAL TALK (May 1, 2013), http://realtalkrealdebate.wordpress.com/2013/05/01/

why-is-the-news-media-obsessed-with-the-jodi-arias-trial/ (summarizing some of the

tragic stories that the Jodi Arias coverage overshadowed); see also Merrill Knox, After

Strong Jodi Arias Ratings, HLN Looks Ahead to George Zimmerman Trial, TVNEWSER

(May 22, 2013, 1:48 PM), http://www.mediabistro.com/tvnewser/after-strong-jodi-arias-

ratings-hln-looks-ahead-to-george-zimmerman-trial_b180390 (comparing the ratings CNN

received during times the Jodi Arias trial to times when typical stories aired and

recognizing the massive swell in ratings associated with the Jodi Arias trial).

21

. Justice Scalia Says ‘Not a Chance’ to Cameras, TODAY (Oct. 11, 2005),

http://www.today.com/id/9649724/ns/today/t/justice-scalia-says-not-chance-cameras/#.UlQ

ud1CkqRR.

22

. See, e.g., Drakontaidis, supra note 20 (describing other cases that the public

ignored because they lacked media hype).

70 HLRe: OFF THE RECORD [4:2

education that would otherwise be unavailable. While it may not

ensure proper legal education, just as a good teacher may not

ensure a good pupil learns everything, the space for engagement

creates the foundation for deeper understanding of the law.

In the process of consuming the entertainment of the Jodi

Arias trial, I learned many things about the legal profession, its

jargon, and courtroom power positioning. I feel very strongly that

the story itself, involving a horrible crime and a twisted

relationship, is something I will never forget. Nonetheless, I

cannot help but be grateful that I became exposed to a body of

knowledge that I would otherwise have ignored.

23

Of course, the Jodi Arias trial was not the only high profile

case of 2013. Television’s coverage of the George Zimmerman

trial illustrates another unique aspect of media legal coverage.

The media helped provide a larger social discussion centered on

the facts of the case. The events of the trial became universalized

as part of a national social conversation that would be near

impossible without national coverage.

24

In Florida v. Zimmerman, Trayvon Martin, a 17-year-old

African-American high school student, was shot by George

Zimmerman, a 28-year-old mixed-race Hispanic.

25

The case

raised questions of self-defense, racial profiling, gun rights, and

race relations. While many people believe that the case was not

about race, it is difficult to dispute that it took place against the

backdrop of ever-evolving racial relations in America.

What attracted me to the Zimmerman trial was the

questions it posed regarding self-defense. Initially, the legal

novelty of stand your ground laws and the physical engagement

question of the trial sparked a deep sense of curiosity. Yet I soon

realized the deeper social questions at stake. While the self-

defense issues lured me into the trial, the intense arguments

regarding racism in America kept me hooked.

26

23

. Luckily or unluckily for the American public, Lifetime captured the story in a

made-for-TV movie called “Jodi Arias: Dirty Little Secret.” JODI ARIAS: DIRTY LITTLE

SECRET (Lifetime 2013).

24

. Karen Grigsby Bates, National Reaction to the Zimmerman Verdict: ‘What

Next?’, NAT’L PUB. RADIO (July 14, 2013), http://www.npr.org/blogs/codeswitch/2013/07/14/

202131045/National-Reaction-To-The-Zimmerman-Verdict-What-Next.

25

. For a copy of the official charges, see Issue Capias, State v. Zimmerman,

SA NO: 1712F04573 (Fl. D. Ct. 2013), available at http://i2.cdn.turner.com/cnn/2012/

images/04/11/zimmerman.charges.pdf.

26

. See, e.g., Danielle Cadet, Mark O’Mara: If George Zimmerman Were Black ‘He

Never Would’ve Been Charged with a Crime’, HUFFINGTON POST (July 14, 2013),

http://www.huffingtonpost.com/2013/07/14/mark-omara-george-zimmerman-black_n_3593

337.html (noting that the Zimmerman trial sparked racial debates and quoting

Zimmerman’s attorney’s statement that “[Mr. Zimmerman] never would’ve been charged

with a crime” if Zimmerman was black); Lauren Rankin, George Zimmerman Trial: Just

Further Proof of Our Racist Justice System, POLICYMIC (June 11, 2013),

2014] THE VIEW FROM THE COUCH 71

One guest who appeared repeatedly on the legal show “Dr.

Drew On Call” was Shahrazad Ali, an outspoken social

commentator and author of Are You Still a Slave? and The

Blackwoman’s Guide to Understanding the Blackman.

27

Her

views on race relations involved a polarizing view of white versus

black and, while extremely controversial, helped place the events

of the Zimmerman trial into a larger social context. The

exchanges between Ms. Ali and the other commentators brought

out the much larger social impact of the trial, even though the

discussion seemed unproductive at times.

These broader issues, which became much more important

than just the legal facts in the case, thrust into the public

limelight the fact that race relations in America are far from

perfect; many feel the situation has become dire, and more work

must be done. The public attention to the case culminated in a

response from President Obama on the progress and needed

attention to the issue of race in America.

28

At a more personal level, watching (or more accurately,

obsessing over) the media coverage gave me an edge at the

company water cooler. I became the expert on the law amongst

my co-workers. Conversations about the trial were inevitable,

and immersing myself into the sheer volume of commentary had

given me a breath of legal understanding my coworkers simply

lacked. I recall one specific conversation in which a colleague of

mine said that Mr. Zimmerman stepping out of his vehicle and

approaching Trayvon Martin involved aggression and thus legal

responsibility for the confrontation and violence that followed. I

was able to respond by discussing the nuances of Florida law that

seriously complicated imposing legal responsibility, whatever the

moral merits of my co-worker’s point.

Even though my legal understanding increased over the two

trials, the law as a profession did not become more attractive to

me. I had witnessed the mystique and mystery around the legal

http://www.policymic.com/articles/47559/george-zimmerman-trial-just-further-proof-of-

our-racist-justice-system (arguing that Zimmerman’s case reveals structural inequalities

in the American justice system); W.W., Getting Away with It, ECONOMIST (July 15, 2013),

http://www.economist.com/blogs/democracyinamerica/2013/07/trayvon-martin-and-george-

zimmerman (“[O]n the whole, our criminal-justice system seems so frightfully

racist . . . .”).

27

. E.g., Miss Ali Makes ‘Behavior Bureau’ Debut, HLNTV (July 11, 2013, 11:25

P.M.), http://www.hlntv.com/video/2013/07/11/miss-ali-makes-behavior-bureau-debut?

clusterId=1347#videoplayer; see also Books, OFFICIAL SITE OF SISTER SHAHRAZAD ALI,

http://sistershahrazadali.com/home/?page_id=30 (last visited Jan. 28, 2014).

28

. Madeleine Morgenstern, Obama Interrupts Press Conference to Comment on

Zimmerman Verdict: ‘Trayvon Martin Could’ve Been Me 35 Years Ago’ (Full Video), THE

BLAZE (July 19, 2013), http://www.theblaze.com/stories/2013/07/19/obama-trayvon-

martin-couldve-been-me-35-years-ago/.

72 HLRe: OFF THE RECORD [4:2

profession defog, and watching and following the commentary

made me think I could, with study and focus, become a legal

professional. But I do not want to. The legal commentary and

trial demonstrated the conflict driven core of the legal system.

29

My current profession (information technology) focuses on

constructive development, and conflict is a rarely used tool to

bring agreement, consensus, and solutions. It is not the zero-sum

winners-win and losers-lose environment I witnessed play out

over the course of the two trials. Frankly, I find the consensus

building involved in information technology far more satisfying.

Even so, I continue to believe that media coverage of

criminal trials serves a vital function in our society, even if it is

often sensationalized. Media coverage, specifically television, will

continue to bring more people into legal discussions by

repackaging of legal events into entertainment. This repackaging

is inevitable and helps universalize the issues raised in complex

legal battles into discussions over larger social issues. But, it also

has a side effect of creating a new group in society, the couch-

potato-legal-analyst. And I am proud to call myself one.

29

. I recognize that some areas of the law are less conflict-driven than others.

Nonetheless, whether a lawyer’s adversary is the State in a criminal trial or an attorney

arguing for inclusion of a certain clause in a contract, conflict seems to drive much of the

legal profession.