Fair Trial and a Free Press

...Nor can the fear of a witness be attributed alone to a possible appearance on television...

...Sheppard's conviction when it hands down a decision in the spring...

...But while the Sheppard case may continue in the popular folklore as a classic crime of passion, it may go down in legal history for a far more important reason...

...Because the objections to the coverage in the Estes case can apply to any case well publicized in any media, the Supreme Court is expected to reverse Dr...

...Even if the court instructed the jury to disregard the article," explained the judge, "the harm already has been done...

...This past November the Supreme Court of the United States agreed to hear Dr...

...The United States has too strong a Constitutional protection of freedom of the press to allow a law similar to one that exists in England, where news media are prohibited from reporting certain information in criminal cases...

...Judges have not always taken every precaution to insure a fair trial free from prejudice...

...Subsequently, another newspaper uncovered the evidence to exonerate Whitmore...

...Since almost every crime story reported in newspapers is based on information supplied by law agencies, crime news will be cut down substantially if these agencies are prohibited from divulging information to reporters...

...But the television camera is not the only instrument capable of humiliating a criminal suspect...

...Edward Bennett Williams, perhaps the leading criminal attorney in the country today, asserted in his book, One Man's Freedom, that the right of a public trial "is not for the benefit of the press or other news media...

...The irony is that the choice might have been avoided...

...Two jurors acknowledged having heard a radio broadcast alleging Dr...

...He also is a critic of television in the courtroom because "the temptation to act a little will be overpowering to some...

...Most of the jurors acknowledged having read news stories about the case, and during the trial they were frequently photographed by the newspapers...

...In the spring of 1965 the Supreme Court reversed a conviction of Billie Sol Estes, a Texas wheelerdealer, because television coverage of the trial disrupted the proceedings sufficiently to raise the question of whether Estes had a trial before 12 unprejudiced jurors...

...The conflict remained dormant until the late 1950s and early 1960s when the courts began taking a very close look at all the judicial safeguards offered criminal defendants...

...The American Bar Association's Canon 35 which recommends that broadcasting equipment be kept out of the courtroom is an outgrowth of the trial of Bruno Hauptmann for the Lindbergh baby kidnapping...

...The impact of such a decision would be a tightening up by courts and law enforcement agencies on information they make available to news media...

...BALANCING THE FIRST AND SIXTH AMENDMENTS Fair Trial and a Free Press By Leonard Baker IN 1954 the attractive wife of a Cleveland osteopath was found bludgeoned to death in her suburban home...

...And almost everyone involved in the trial of Jack Ruby was more Barrymore than Blackstone...

...Clarence Darrow's great presentations to juries as in the Loeb-Leopold case, were as much appeals to the reason of the world as they were to the compassion of the dozen men listening to him...

...It said such curbs, even if voluntary, would be "more harmful than the evil complained of...

...They had made him so notorious, Peter Bart reported, that he was having difficulty finding work...

...The police eventually did question the husband, then charged him with the murder of his wife...

...Another result may well be the diminution of what Senator Ervin called the "contributions that a free press has made to our system of responsible government and to the proper administration of justice...

...When that trial was broadcast on radio, the ABA denounced the practice as "trial by air...

...Federal and state courts-except the Texas and Colorado state courts-have adopted Canon 35 as part of their administrative procedures...

...The conflict is more than a lawyer's argument and involves much more than the future of one man...

...The Philadelphia Bar Association has made recommendations along the same lines...

...was arrested, and while he was still only charged with the crime, a newspaper ran his photograph with the caption "Killer" beneath it...

...When Dr...

...His lawyers claim, however, that new evidence would destroy any case against him...

...The media would still be free to publish information concerning criminal suspects and cases it ferrets out on its own...

...Sheppard had a mistress at the time of the murder...

...Sheppard back to jail, it did not dispute any of the assertions made about the Sheppard jurors but maintained that courts should presume jurors are free from prejudice, not presume they are prejudiced by news accounts...

...Sheppard's favor certainly would be less free access of the media to official crime information...

...In Counroom, the Leibowitz biography by Quentin Reynolds, Leibowitz' success in the courts is described this way: "Actually he was a plodder, and what the public mistook for intuitive brilliance was nothing but the result of thorough, painstaking investigation resulting in evidence presented and interpreted dramatically in the public forum of the courtroom...

...Leonard Baker, a new contributor, is a Washington freelance writer...

...It often begins at the moment of his involvement...

...Sheppard, there was other press involvement, which according to the defendant's lawyers destroyed his chance for a fair trial...

...A result then of a Supreme Court decision in Dr...

...Sheppard was ordered released from prison in July 1965 by a Federal judge, the judge described the trial as "a mockery of justice...

...The conflict between the free access of news media to the proceedings of a trial and the defendant's right to a trial free from prejudice is not new...

...Whether this will mean fairer trials, as was alleged in last year's Estes case and in this term's Sheppard case, will probably continue to be debated...

...In addition to stating he is innocent of the murder of his wife, the doctor claims to have been denied a fair trial because of adverse and vociferous newspaper publicity...

...An exception to this rule of good lawyers being flamboyant actors is Edward Bennett Williams...

...Nor can the old and honored inclination of judges and lawyers to "play" to an audience be attributed to television alone...

...The Commission agrees," it wrote, "that Lee Harvey Oswald's opportunity for a trial by twelve jurors free of preconception as to his guilt or innocence would have been seriously jeopardized by the premature disclosure and weighing of the evidence against him...

...These arguments charged that Estes was humiliated, that his cause was possibly harmed by lawyers and judges "playing" to a wide public audience, that witnesses could be frightened of appearing before a large audience, and that the television publicity made the defendant a subject of wide notoriety...

...In the Sheppard case, in addition to the newspaper campaign aimed at forcing a police investigation of Dr...

...Though the charges were later found in open court to be completely untrue, Weston was unable to live down the original headlines...

...The movement received still further impetus in the fall of 1964 when the Warren Commission issued its Report on the assassination of President Kennedy and the subsequent murder of the man charged in the crime, Lee Harvey Oswald...

...Editors and lawyers tend to weigh in on different sides of the balance...

...Thoughtful lawyers, judges and newsmen long have been aware of the dangers of licentious publicity...

...In New York City, for example, a 17-year-old boy was murdered on a subway train in full view of 10 persons, but not one stepped forward to offer assistance...

...Newspapers often present prejudicial accounts...

...This Federal judge's ruling was reversed by the Sixth Circuit Court of Appeals, which agreed that the trial coverage by news media was "shabby reporting" but did not find this sufficient grounds upon which to free Sheppard...

...In April 1965 a special "free press-fair trial" committee of the American Society of Newspaper Editors opposed any curbs on what newspapers could print about crimes...

...That particular incident happened one year after 38 persons witnessed the slaying of Catherine Genovese in Queens, and not one made even an anonymous telephone call to the police...

...He was tried, found guilty and sentenced to life in prison...

...Her husband told police a bushy-haired intruder had killed her, but the local newspapers were suspicious of the husband, "STOP STALLING-----BRING HIM IN" insisted the headline over one editorial...

...Although the jurors were instructed not to read newspaper accounts of the trial, several are said to have made unauthorized telephone calls from the jury's deliberation room and could presumably have been informed of the news stories...

...It is not to satisfy the curiosity of the mob...

...It was only natural that the courts consider extending this protection to include freedom from prejudice created by news media reporting...

...The most notorious recent example of this was the murder of two young girls, for which Richard Robles was convicted in New York last year...

...The New Jersey Supreme Court has banned prosecutors, police and defense attorneys from making prejudicial statements about defendants...

...Lawyers and law officers traditionally expound publicly on a suspect's guilt or innocence before a trial...

...Indeed, great criminal lawyers such as William Fallon and Samuel Leibowitz were as much actors as attorneys...

...Since the Warren Commission Report was issued, the courts have been taking a much deeper look into the conflict between a fair trial and a free press...

...The osteopath was Dr...

...So do newspaper stories...

...This would not only be in keeping with the trend represented by the Estes case decision, but it would also be in line with the decisions extending greater protections to defendants...

...The fourth objection to the televising of the Estes trial also applies to newspaper coverage: The televising of the trial makes the defendant a "notorious" character...

...The lawyers argue that the news media carry this titillation to such an extreme that the defendant's right to a fair trial before an unprejudiced jury is jeopardized...

...Prior to Robles' trial, George Whitmore Jr...

...The Commission was particularly critical of the news media and of the Dallas authorities for the extent to which they supplied the news media with information and answered questions about whether they believed Oswald guilty...

...As Senator Sam Ervin of North Carolina, the chairman of a Senate subcommittee studying the dispute, has said: "For every instance in which a defendant's case has been prejudiced by an unfair press, there is another in which the press has exonerated an innocent person and has revealed the identity of the true criminal...

...The newspapers headlined the story "Actor Arrested for Defiling Flag...

...Peter Bart, Hollywood reporter for The New York Times, has described the case of Jack Weston, a movie actor for two decades, who had been arrested in the fall of 1964 on charges of desecrating an American flag...

...The issue before the Court is the complex Constitutional balance between the First Amendment's guarantee of a free press and the Sixth Amendment's guarantee of a fair trial...

...When one Constitutional guarantee gives before another, there always is a loss...

...It is for the benefit of the accused...

...Fear is a very real factor for witnesses to criminal acts, but television only magnifies it...

...The committee, headed by Alfred Friendly, managing editor of the Washington Post, did urge the press to report criminal matters "with restraint, good taste and scrupulous regard for the rights of defendants...

...In Pittsburgh, the local chapter of the American Civil Liberties Union sought to have all pre-trial information about a criminal suspect withheld from the public...

...He wins his cases with a dry presentation of facts cited in an unemotional tone...

...It is this Sixth Circuit Court decision that Sheppard, free on bail, is presently appealing to the Supreme Court If Sheppard wins his appeal and is freed, he could be subject to another trial for the murder of his wife...

...Essentially these guidelines prevent the officer from giving details about any past criminal arrests of a suspect...

...Sam Sheppard...

...His innocence or guilt has been argued by lawyers, writers and judges for years...

...A state court described the Sheppard trial as a "Roman Carnival...

...Sheppard's appeal...

...When the Sixth Circuit Court of Appeals ordered Dr...

...The extent to which publicity influences a juror is an unmeasurable factor...

...Lawyers, however, often feel that press coverage of crimes does not have the high objectives implied by the editors' committee statement but is directed instead toward selling newspapers by titillating the public's fascination with murder, mystery and sex...

...Much the same is true where the malefactor has friends in high places or is closely aligned with the political structure of a community...

...The report said: "In a community, for example, where crimes against a given race or group are traditionally tolerated, publication of the facts about the crime and the suspect may be the instrument that forces rather than obstructs justice...

...And a judge in Rhode Island granted a mistrial because the local newspaper published the defendant's criminal record...

...And when similar forces are bent on railroading an innocent man, his protection as well as the proper ends of justice are served by publication...

...But it also insisted that a press free to print the details of crimes and arrests as it saw fit serves a valuable service...

...His case and trial have given birth to a series of books, articles, and "The Fugitive" television series...

...Without such excesses, there probably would not be a Sam Sheppard case before the Supreme Court now and the press would not face new restrictions...

...Although the Court's decision in that case was narrowly limited-the televising had been noisy and was commercially sponsored-the arguments that led to the decision were broad enough to include coverage of a criminal proceeding by any news media...

...No one could have been more humiliated than George Whitmore Jr., who had his picture shown to more than a million newspaper readers as that of a killer...

...Even limited restriction, however, will seriously affect press activities, because it will deny news media access to official sources of information...

...The Justice Department has issued guidelines concerning the type of information Federal officers can release about persons arrested for violating Federal laws...

...Several practices of law officers, once routine-obtaining confessions without the presence of the suspect's lawyer, the securing of evidence from a home without a search warrant, eavesdropping and wiretapping-have either been outlawed or thrown in doubt by Supreme Court decisions aimed at giving the suspect more protection...