The Press and Due Process

...The press, in fact, in arguing against any restrictions on the way it handles crime news, is justified in proclaiming that it has frequently uncovered evidence which demonstrated the innocence of a defendant, evidence the prosecutor either did not have or did not want to introduce...

...When the Supreme Court voided the guilty verdict against Dr...

...Confessions, eye-witness reports, prior criminal records, evidence-all these matters found their way onto the printed page and airwaves, there to be read and heard by potential jurors...

...Many defendants have been convicted of earlier crimes, and nothing restrains the press from unearthing this record and presenting it to the public...

...Yet information that a defendant has previously been convicted of burglary, assault and battery, and illegal entry indicates to most readers that the defendant is decidedly a criminal type...

...It also knows that the public, by and large, equates politics with something less than the behavior expected of others...

...With other sources gone, the press will undoubtedly concentrate more heavily on the family for information...

...Interestingly, both the prosecutor and the defender in the original trial of Jack Ruby used the exact same phrase to describe their dealings with the press before and during that trial...

...The point is that Pearson and Anderson have published a great deal of information which could become evidence in a judicial proceeding-and there is nothing in the Supreme Court decision to prevent it...

...They both said, "I had to fight fire with fire...

...Connecticut's Federal attorneys were also operating under a similar ban...

...The family of the accused, before the decision, provided much material for crime stories...

...Under these pressures, it might find it easier and more politic to deal sternly with Senator Dodd...

...Good reporters do this all the time, even today when the need is not yet so great...

...And when the stakes are high,say the new Sam Sheppard murder case-the possibility of the Court's ruling being circumvented is less than remote...

...It is difficult to see how Sheppard, even 12 years later, can have "due process of law...

...Coming back to the new trial Dr...

...So it would be a simple matter for a good defense lawyer to plant stories with the family for transmission to the press and they would seem quite natural...

...Now, many would undoubtedly consider it naive at best and laughable at worst to say that the Senate Committee, by reading the PearsonAnderson columns, was prejudiced in advance against one of its own...

...Sam Sheppard has to face, surely Clevelanders, from among whom his new jury must be selected, will not have forgotten the stories against him in the Cleveland Press in 1954...

...The Supreme Court did say in its decision that jurors should be isolated from news sources during a trial, and before trial...

...avenues which, indeed, the press will be seeking as replacement for dried-up sources...

...Sheppard, if the Supreme Court will complete the half-solution it has so far given us...

...But it is not too late for those who come after Dr...

...But while it is true prejudicial information cannot prejudice if it is not released, it is equally true prejudicial information cannot prejudice if there is no medium to distribute it...

...Even Chief Justice Earl Warren, when he was still a district attorney in California, on at least one occasion deliberately and openly fed information to the press in order to win a grand jury indictment against a group of public officials...

...it would seem that all the Court has changed is the means of fulfilling it...

...There is, for instance, the prior criminal record of the accused...

...Without going into an actual case history of the series-that, after all, would be doing precisely what should not be done-it is safe to say that Pearson and Anderson document to their own satisfaction a galaxy of accusations against the Senator that the Senate Committee on ethics is finally investigating...

...Sheppard, it upset a tradition of such publicity that had rumbled merrily along since the Republic was founded...

...But, assuming the decision is enforced, will it really change very much...

...There is nothing in the decision to prevent an enterprising newspaper or radio or television station from assigning a reporter to try to uncover evidence...

...Now this must stop...

...They have, after all, been reminded again by the publicity attendant on the Supreme Court decision itself...

...What this means at this moment is that an innocent man spent nine years of his life in jail, or that a murderer walks free...

...On the whole, though, the nation's officials were free to act according to their own consciences-and their consciences more frequently operated in favor of those who wanted to win convictions, rather than for those who were guaranteed due process of law...

...But what if the sanctions against the counsel and prosecutor work perfectly, and no information for or against the defendant comes from these sources...

...After finding it the reporter can run it as his own, and in strict fact, it would be his own...

...Information concerning prior criminal records is not admissible into evidence in a trial unless the defendant himself takes the stand...

...The only established fact is that the dilemma was caused by prejudicial pre-trial publicity...

...A few isolated places had earlier proscribed leaking this type of information to the press...

...The objectives of the Supreme Court decision would in this way be thoroughly vitiated...

...Sheppard's attorney, S. Lee Bailey, has let it be known that he intends to sue the Press for its full net asset value if the new trial ends in a verdict of "not guilty...

...The prosecutor, being a public official, may be restrained by the decision...

...Here the Court seems to be relying on the power of local bar organizations to disbar an attorney for unethical practices...

...Both prosecution and defense, moreover, even if totally prohibited by law from issuing any statements to anybody, could easily tell a favored reporter where and how to find a good story...

...The defense attorney, on the other hand, is a private-enterprise man whose job is to win acquittal for his client-and the Court did not explicitly forbid his issuing information which could prejudice potential jurors in favolai his client...

...There is also other information, having nothing to do with evidence, which is both available to the press and prejudicial to the defendant...

...Since obviously there is no practical way to stop the flow of information at the source, it would seem that the next logical step to take is shutting off the access of the public to that information-to forbid the news media to give it to us...

...Reportedly, too, before the Supreme Court handed down its decision, the Press offered Bailey a million dollar settlement because of the damage suffered by his client as a result of its stories...

...Yet that Committee, still smarting under the charges of "whitewash" after the Bobby Baker investigation, may pay somewhat more heed this time to the eyes and ears of the public...

...Or if the press itself, unlike so many others throughout history, will recognize the forces lining up against it and, by its own responsible actions, disperse these forces...

...Has the problem of pre-trial publicity in criminal cases really been solved...

...They got it from sources having no connection whatever with law enforcement...

...There was little beyond a sense of ethics to prevent officers of the law from feeding information about a defendant to the press...

...Should he be deterred by the possibility of professional proceedings against him, he has other avenues open to him...

...That need will always operate...

...Or, more accurately, that appears to have been the Court's intention...

...The temptation will thus be great for a defense attorney facing a difficult case to take advantage of his position and bring it to the public before the trial begins...

...New Jersey's Supreme Court, for example, had banned it in that state...

...Nonetheless, the Supreme Court said nothing about keeping such information out of the press...

...A rather dramatic example of reporters unearthing new material and having it printed in close to 400 newspapers across the country, is the Drew Pearson-Jack Anderson series of newspaper columns about Senator Thomas Dodd (D.-Conn...

...In the final analysis, therefore, it becomes clear that the Supreme Court presented the nation with only half a solution to a major problem...