FAIR TRIAL & FREE PRESS
Chapter 7
Fair Trial – Free Press Conflict




Problem No. 1:
The conflict between
The 6th Amendment protections for
criminal defendants and
The 1st Amendment rights of free speech
(reporting trials and other court
proceedings)
The Sixth Amendment




the right to a speedy and public trial, by an
impartial jury of the State and district wherein
the crime shall have been committed
to be informed of the nature and cause of the
accusation
To be confronted with the witnesses against him;
to have compulsory process for obtaining
witnesses in his favor
To have the assistance of counsel for his defense
Prejudicial Crime Reporting

Stories That Can Endanger Defendants’ Rights
 Confessions or stories about confessions the
defendant is said to have made
 Stories about he defendant’s performance on a
test, such as a polygraph
 Stories about the defendant’s past criminal
record
 Stories that question the credibility of witnesses
Prejudicial Crime Reporting
Stories That Can Endanger Defendants’ Rights
 Stories about the defendant’s character,
associates or personality
 Stories that tend to inflame the public mood
against the defendant
 Stories that are published or broadcast before a
trial and suggest, imply or declare the defendant
is guilty

Prejudicial Crime Reporting

Impact on Jurors
 Research has not yet proven that publicity
creates prejudice against a defendant
 Research has not yet proven that jurors cannot
set aside their beliefs about a case and render a
verdict based solely on facts presented in court
Prejudicial Crime Reporting

An Impartial Juror

Is not required to be free from all knowledge or
impressions about a case

But, must be free of deep impressions and
beliefs that will not yield to the evidence that is
presented during the trial
Mad Dog Irvin’s case
Irvin v. Dowd (1961)
The first time the High Court overturned a criminal
conviction because of pretrial publicity.






Leslie Irvin was convicted in 1955 and sentenced to death
In a 1961 review of the case, the U.S. Supreme Court
found that Irvin had not received a fair trial:
Prosecutors said he had confessed to murder though Irvin
later denied the confessions
They labeled him a ''mad dog killer'' and ''mad dog Irvin.”
He was tried amid intensive media coverage.
He was denied second request for change of venue
Mad Dog Irvin case (1961)

Where an attempt has
been made to secure an
impartial jury by a change
in venue, but it appears
that such a jury could not
be obtained in the county
to which the venue was
changed, it is the duty of
the court to grant a
second change of venue.

.
Rideau v. State of Louisiana 1963


Rideau convicted for murder and sentenced to
death in 1961.
The U.S. Supreme Court overturned Rideau’s
conviction on the basis that a secretly taped
interrogation session was aired repeatedly on the
local television station KPLC-TV's evening news,
resulting in a biased jury pool and a "kangaroo
court.“
Dr. Sheppard’s case
Sheppard v. Maxwell (1966)
.
Dr. Sheppard’s case


On July 4, 1954, Marilyn Sheppard, the wife of a
handsome thirty-year-old doctor Sam Sheppard,
was brutally murdered in the bedroom of their
home in Bay Village, Ohio, on the shore of Lake
Erie.
Sam Sheppard denied any involvement in the
murder and described his own battle with the killer
he described as “bushy-haired.”
Dr. Sheppard’s case



From the beginning the case brought a great
interest from the media. Generally, the media
were hostile toward Sam Sheppard
Sam Sheppard was found guilty of murder in
the second degree by Cleveland, Ohio, jury in
1954
Second-degree murder is ordinarily defined as an
intentional killing that is not premeditated or planned, nor
committed in a reasonable "heat of passion"
Dr. Sheppard’s case


In 1963 F. Lee Bailey, Sheppard’s attorney,
filed a petition for habeas corpus in federal
court
(a petition demanding an explanation of the basis upon
which the prisoner has been detained. This type of writ is
generally considered to be an "extraordinary remedy",
meaning that the prisoner has exhausted all other avenues
of relief or appeal, and no other adequate remedy remains).
Dr. Sheppard’s case

F. Lee Bailey contended, among other things, that
prejudicial publicity before and during the
1954 trial violated Sheppard’s right to the due
process of law
An Interview with F Lee Bailey

http://www.youtube.com/watch?v=srp0XnqWzy0

FLB crossexamination

Dr. Sheppard’s case



In July 1964 Federal District Judge overturned
Sheppard’s conviction calling the 1954 trial “a
mockery of justice.”
However, the Sixth Circuit Court of Appeals on a
2 to 1 vote, reinstated Sheppard’s conviction.
Sheppard appealed to the Supreme Court
Dr. Sheppard’s Case

The Supreme Court on the grounds that the
publicity surrounding the trial prejudiced
Sheppard’s right to a trial by an impartial jury.
(Sheppard v. Maxwell 1966)


The state of Ohio decided to retry Sheppard.
He was acquitted on November 16, 1966.
Dr. Sheppard’s Case: Epilogue





Sheppard returned to his surgical practice, but
with deteriorated skills and drinking problems
botched two operations, killing both patients
In 1969 made his debut as a professional wrestler
using the name… “Killer Sheppard”
Sheppard died in 1970, at the age of 46.
Case reopened in the mid 1990s
Civil lawsuit in 2000… Read more in the book
Traditional Judicial Remedies
Voir Dire (“to speak the truth”) - each perspective
juror is questioned prior to being impaneled in an
effort to discover bias
 Challenges for cause – when an attorney
convinces the court that there is a good reason a
potential jury member should not hear the case
 Preemptory challenges – a limited number of
challenges granted without need to prove cause
for removal of a jury member

Traditional Judicial Remedies


Change of Venue – when a judge orders a trial
moved to a distant county to find a jury that has
not been exposed to publicity about a case
Change of Veniremen – when the court imports a
jury panel from a distant community (RARE)
Traditional Judicial Remedies

Continuance – when a judge postpones a
trial for weeks or months

A continuance may be granted when a judge
expects people in the community will forget at
least some of the publicity surrounding the case
Traditional Judicial Remedies


Admonition to the Jury – when judges tell
impaneled juries they must render their verdict
solely on the basis of the evidence presented in the
courtroom
Sequestration of the Jury – when judges seclude
jury members from all publicity


Jury members live in a hotel and eat all meals together
All media accounts and personal communication are
screened for information about the trial before jury
members can see or hear it
Restrictive Orders: “gag orders”

Judges issue restrictive orders, also known as “gag
orders” to stop those involved in a case from
making public comments

Can be issued to:
 Plaintiff and defendant
 Attorneys
 Press
Restrictive Orders on Press

Nebraska Press Association v. Stuart (1976)
 The judge in a sensational murder trial issued a
restrictive order barring the printing or
broadcasting of material about the victims
 U.S. Supreme Court ruled this order was an
unconstitutional prior restraint on the press;
there must be a clear and present danger to the
defendant’s rights to issue such an order
Restrictive Orders on Press

Nebraska Press Association Test for Restrictive
Orders Aimed at the Press:
 There must be intense and pervasive publicity
about the case
 No other alternative measure might mitigate the
effects of the pretrial publicity
 The restrictive order will in fact effectively
prevent prejudicial publicity form reaching
potential jurors
From the majority opinion in Nebraska
Press Association v. Stuart (1976):

“We reaffirm that the guarantees of freedom of
expression are not absolute prohibition under all
circumstances, but the barriers to prior restraint
remain high and the presumption against its use
continues intact.”
Restrictive Orders on Participants

Gag orders aimed at participants are not
uncommon in high profile cases

The law regarding restrictive orders barring
participants from speaking or publishing about a
case, however, is still developing
Access to Proceedings: Richmond
Newspapers v. Virginia (1980)


After a series of mistrials in a murder case in the
state of Virginia, a trial judge closed the trial to
the public and the media. Defense counsel brought
the closure motion; the prosecution did not object.
Two reporters of Richmond Newspapers, Inc.
challenged the judge's action.
Question: Did the closure of the trial to the
press and public violate the First Amendment
or the Sixth Amendment?
Access to Proceedings: Richmond
Newspapers v. Virginia (1980)



The Court held that the right to attend criminal
trials was "implicit in the guarantees of the First
Amendment."
The First Amendment encompassed not only
the right to speak but also the freedom to listen
and to receive information and ideas.
Also, the First Amendment guaranteed the right of
assembly in public places such as courthouses.
Access to jury selection process:
Press Enterprise I (1984)



The petitioner moved that the voir dire at a trial
for the rape and murder of a teenage girl be open
to the public and the press.
The State opposed, arguing that if the press were
present, juror responses would lack the candor
necessary to assure a fair trial.
The trial judge agreed and permitted petitioner
to attend the "general" but not the
"individual" voir dire proceedings.
Access to jury selection process:
Press Enterprise I (1984)



After the jury was empaneled, petitioner moved
for release of the complete transcript of the voir
dire proceedings
Both defense counsel and the prosecutor argued
that release of the transcript would violate the
jurors' right to privacy.
The court denied the motion.
Access to jury selection process:
Press Enterprise I (1984)


Petitioner then sought in the California Court of
Appeal a writ of mandate to compel the trial court
to release the transcript and vacate the order
closing the voir dire proceedings.
The petition was denied, and the California
Supreme Court denied petitioner's request for a
hearing.
Access to jury selection process:
Press Enterprise I (1984)


The Supreme Court Held:
The guarantees of open public proceedings in
criminal trials cover proceedings for the voir
dire examination of potential jurors.
Access to preliminary hearing:
Press Enterprise II (198^)

Does a qualified First Amendment right of public
access attach to a preliminary hearing, and under
what conditions may the hearing be closed to the
public while ensuring a fair balancing of First
Amendment and Sixth Amendment guarantees?
Access to preliminary hearing:
Press Enterprise II (1986)




"Plainly the defendant has a right to a fair trial
but,
one of the important means of assuring a fair trial is
that the process be open to neutral observers.
Therefore, the preliminary hearing shall be closed only if
specific findings are made demonstrating a substantial
probability that fair trial will be put at risk by publicity and
that no reasonable alternatives to closure exist.”
Press-Enterprise Test


The party seeking closure must advance an overriding
interest that is likely to be harmed if the proceeding or
document is open
Whoever seeks the closure must demonstrate that there
is a “substantial probability” that this interest will be
harmed if the proceeding or document remains open
Press-Enterprise Test


The trial court must consider reasonable alternatives to
closure
If the judge decides that closure is the only reasonable
solution, the closure must be narrowly tailored so
there is an absolute minimum of interference with the
rights of the press and public to attend the hearing or
see the document
Access to Courtroom Documents
The First Amendment rights must be balanced with the
Sixth Amendments rights
 Before barring access to documents the judge must
determine:
1. Allowing public access would cause a substantial
probability that irreparable damage to fair trial right will
result
2. There are no alternatives
3. There is a substantial probability that the ruling would be
effective

Access and Broadcast Journalists
Access to audio- or videotaped evidence is still
developing in the courts

Courts have granted journalists increasing rights to
make copies of evidence for later broadcast

Recording and Televising Judicial
Proceedings

Cameras and recording devices are now permitted
in all but two states and the District of Columbia

The U.S. Supreme Court ruled in Chandler v.
Florida (1981) that the mere presence of
cameras in the courtroom does not prejudice a
defendant’s right to a fair trial
Recording and Televising Judicial
Proceedings

Federal courts refuse to permit cameras in the
courtroom

Cameras are also barred from executions and jury
deliberations in most states