FREE PRESS VERSUS FAIR TRIAL

...It was perhaps a poor defense...

...How can he do so if he is, in effect, sealed off from the moment of his capture until the day of his trial...

...The defendant was duly required to sit for his portrait while the cameras recorded his image for the home audience and for posterity...

...Indeed, it was even suggested that, if Jack Ruby's bullet had missed JAMES A. WECHStER is editor of the editorial page of The New York Post...

...Nevertheless, we will be obliged to look in that direction if journalism and law cannot find a serious ground of communication and agreement on state, county, and city levels...

...Editor and Publisher, the unofficial organ of the industry, has repeatedly condemned proposals for restrictions on news coverage...

...One real difficulty is that an indigent defendant may be less likely to obtain anyone's ear if he cannot speak out in public...

...the police proclaimed his guilt at once, they released apparently damning details to the hungry journalists, and, finally, they conducted the most ghoulish television spectacular of our time by making his transfer a public event, thereby exposing him to the fatal bullet...

...too many leaders of the bar now appear more responsive to the view that criminals are being "coddled" than to the flagrant inequities and anachronisms in our judicial system...

...But circumstances would have to govern cases...

...The murder of Mrs...

...But what real comfort is it to the community if it proves to be the wrong man, and if police statements create a climate in which a fair trial is difficult, if not impossible...

...The situation in the South, for example, cannot be equated with that in much of the rest of the country...

...But there are also occasions when a defendant's only hope may be to voice one desperate cry in the night that someone will hear and heed...

...At first it appeared that a squalid jurisdictional quarrel over first claim to Whitmore might develop...

...But there is a reverse form of injustice that might be multiplied by total prohibition of pre-trial coverage...

...in areas of large-scale oppression, a defendant's pre-trial access to the national news media may offer his only chance of obtaining any faint facsimile of a fair trial...

...The young assistant's curiosity led to more intense inquiry and produced a devastating blow to plans of the Manhattan district attorney's office for prosecution of Whitmore...

...Most citizens assumed that this was the desperate maneuver of a doomed man...

...But in fairness another aspect of this story should be placed on the record...

...it is not ended yet, and its repercussions may be felt for many long months...

...Certainly a defendant should have the right to a press interview if he asks for it, especially in the absence of any comprehensive public defender system...

...A petition for retrial of the Borrero case is pending...

...Their defense was that they were seeking to satisfy the clamor of the army of cameramen and reporters who had descended on Dallas...

...The spectacle of exposing defendants to ruthless public display is often as inhumane as it is unjust...

...All this would appear to justify the simple conclusion that large-scale pretrial publicity is indefensible—whether the defendant be Lee Oswald or George Whitmore...

...Prospective jurors may well swear that they have not been influenced by what they have previously read...

...Borrero...

...A photograph had been found in Whitmore's wallet which the police had hastily identified as that of the slain Wylie girl...

...Among his books are "The Age of Suspicion" and "Reflections of an Angry Middle-Aged Editor...

...the familiar declaration that "we have an open-and-shut case" is an intrusion on the jury system...

...The "boys" can hardly be blamed for accepting these favors of pre-trial disclosure and rumor, especially when there is more than one newspaper in town...

...Investigation revealed it was not a photograph of the Wylie girl at all, but of a young woman who bore a striking resemblance to her...

...Steadily the case against Whitmore, charged with the slaying of the two career girls, disintegrated...

...By that time, however, the confession—full of morbid, bloody detail— had been heralded in headlines, and on television and radio...

...His forty-three-year-old mother, a native of South Carolina who came to New York to work as a domestic at the age of seventeen, had tenaciously maintained belief in his innocence...

...if the reporter's discovery were large enough, it would almost surely lead to a move for dismissal of the indictment...

...that aspect of his confession, at least, was entirely discredited...

...He was arrested by New York police last April on the basis of an allegation by a twenty-one-year-old, married Puerto Rican woman, Ellen Borrero...

...Perhaps a certain bias in favor of my own occupation, which is journalism, obliges me to agree with the Warren group's assertion that the original sin rested with the police rather than the press...

...The slaying of Miss Hoffert and Miss Wylie— the most celebrated and chronologically the earliest of the cases—had occurred in the bailiwick of Frank Ho-gan, Manhattan's district attorney...

...they obtained, among other things, affidavits appearing to establish a clear alibi for Whitmore...

...The release of confessions, accompanied by detailed recitals of the heroic investigative labors that led to apprehension of the alleged culprit, is essentially a form of public relations...

...there is the largest question of all—the resort to capital punishment...

...This conviction may one day prove to have been his salvation...

...too many pillars of the press are more preoccupied with publishing the gaudy details of confessions than with protecting the rights of the accused...

...As Whitmore's attorneys have freely acknowledged, they received valiant help from at least three New York City reporters—Irving Lieberman of The Post, Selwyn Raab of The World-Telegram, and Fred Shapiro of The Herald Tribune—in the defense's long effort to demolish the tainted confession...

...Some influential newspapers, including The New York Times, have conceded the existence of troublesome questions...

...Edmonds and the alleged rape of Mrs...

...Thus an ancient debate—perhaps somewhat too simply defined as free press versus fair trial—was renewed...

...But it is hard to imagine that many literate citizens of New York could have entered the Whitmore jury room if the Hoffert-Wylie case had gone to trial, without having been subjected to some measure of influence by the television-headline orgy that greeted his "confession...

...the systematic planting of stories (including past records of defendants) calculated to dissipate all reasonable doubts before the defense is heard is mischievous and misleading...

...When the New Jersey Supreme Court recently imposed drastic curbs on pre-trial pronouncements, Police Director Dominick Spina of Newark promptly denounced the decision as "another curtailment of the rights of police officers," adding: "If a man confesses to a rape or a holdup in an area where there have been a number of such crimes, it is important for the neighborhood to know that the man has been arrested...

...Certainly this danger might become even more serious if, as the British are now contemplating, a ban were imposed on the coverage of preliminary hearings as well as pre-trial rhetoric...

...In Kentucky and New England, editors and bar associations have been meeting in an effort to evolve a set of principles governing coverage of criminal affairs...

...As the Whitmore case reminded us, there are deep defects in the administration of law that go far beyond the question of publicity—inadequate defense for indigent defendants, extorted confessions, the need for civilian review boards to examine allegations of police rough stuff...

...Whitmore's fate remains uncertain as I write...

...They pursued leads, day and night...

...A few men in a few places are trying to find rational answers...

...Much of what I have written reads like a call for adoption of much of the British system...

...that is the case of the affluent, well-connected defendant who might more easily engineer a "fix"—such as an unwarranted reduction of charges by the prosecutor—if a total blanket were thrown over the proceedings from the start...

...These are questions too often neglected by much of the press in its zealous resolve to preserve the dubious liberty to serve as mouthpiece for the prosecution...

...One can only say that in January, 1965, the prosecution and the press "convicted" a second man for the same crime—just as it had the first suspect in April, 1964—before either had a day in court...

...George Whitmore, Jr., is a twenty-year-old, semi-literate, itinerant Negro laborer...

...At the same time, in a grotesque sequel to the earlier publicity debacle, there came the news that another suspect had been seized—and the television-press media were given full details of the information on which the new prosecution was based...

...but it was also the re-enactment—on an historic scale—of a drama that takes place in police precincts throughout the nation every day...

...they may believe in the sincerity of their oath...

...Throughout the interrogation, Whitmore had no attorney at his side...

...By early January, District Attorney Hogan announced that the charges against Whitmore for the double murder had been dropped...

...and Oswald had survived, the possibility of a fair trial, in the strictest sense, had already been demolished by the nature of the publicity circus staged from the moment of Oswald's capture...

...Whitmore's arrest occurred at a time when the city was still haunted by the brutal, unsolved slaying of two young career girls, Emily Hoffert and Janice Wylie...

...Other complexities of enacting an overall "code" into law could be enumerated...

...The arrested man had said he found it in a junk heap in New Jersey and carried it around to boast to his friends of his interracial sexual achievements...

...The same truth applies to the conduct of publicity-seeking prosecutors in every city who do their best to "please the boys" in return for press notices that may jeopardize the rights, if not the lives, of defendants...

...If Whitmore's mother had not found him new counsel, if an enterprising young assistant district attorney had not spent many hours examining the files, if the defendant had been brought to trial hastily, in the atmosphere created by the early hysteria, would he be alive now...

...Edmonds...

...Similarly unsolved was the less publicized but no less ghastly murder of Mrs...

...One which evoked the special concern of both lawyers and journalists was the fashion in which the local police authorities blunderingly collaborated with the communications media to set the stage for the killing of Oswald...

...When the quiz ended, police officials triumphantly announced—before the television cameras and the press—that Whitmore had confessed to all three of these monstrous crimes...

...Dissatisfied by the work of his court-appointed young attorney, she had appealed to a crusading young local lawyer, Arthur Miller, for help in the Hoffert-Wylie case...

...But enough has already happened to show how hazardous is the business of "trial by headline...

...The suspect was taken into the squad room in the early evening...

...But it is not necessarily decisive...

...Too many prosecutors, motivated by political ambition rather than any dedication to the processes of justice, have a vested interest in compiling a record of convictions...

...Who will be the saint who permits the opposition to scoop him...

...Free Press versus Fair Trial by JAMES A. WECHSLER In the aftermath of the slaying of John F. Kennedy and the subsequent murder of the accused assassin, Lee Oswald, there arose a great national soul-searching on many matters...

...This is a crucial point in the larger argument...

...These are some of the reasons why any effort to enact a sweeping national formula seems to me the last resort we should seek...

...It should be added that agreement on a code of responsible press handling of crime reports will bring no miracles of justice...

...glory delayed need not be glory denied...

...We got the right guy, there's no doubt about it," Chief of Detectives McKearney boasted in his best television manner...

...Borrero fell within the territory of the Brooklyn prosecutor...

...Obviously the initiative for reform rests with the bar...

...After a fifteen-minute conference between lawyer and client, the court was informed that Whitmore was withdrawing his confession...

...By this time, Whitmore had already been convicted in Brooklyn—largely on the basis of the triple confession—of the attempted rape of Mrs...

...he asserted that he had been beaten into making it...

...It consisted of the substance of wiretaps (obtained with court permission...

...It has been pointedly underlined anew in a recent case in New York City which illustrates both the inherent injustice of the present system and the fallibility of some suggested solutions...

...Weighing risk for risk, it seems to me preferable that there be a mutual silence pending trial...

...Brooklyn's district attorney proclaims his resolution to use the remaining fragments of the tripartite confession to try Whitmore for the murder of Mrs...

...a panel of the American Bar Association is exploring the subject...

...She identified him as the youth who had attempted to rape her about midnight as she walked toward a subway on a Brooklyn street...

...Surely, reasoned Hogan's man, the killer should have some information elaborating the theoretical police script...

...But let it also be said quickly that, in instances where such initiatives have been undertaken —most recently in Philadelphia—much of the press has cried out in the shrill tones of an innocent maiden whose virtue is attacked...

...In its discussion of the Oswald case, the Warren Commission said that "disclosure of evidence encouraged the public, from which a jury would ultimately be impaneled, to prejudge the very questions that would be raised at trial...

...But it is far from certain that these meditations will produce tangible results...

...there would have been no ensuing fanfare or frenzy...

...Most of this article has been concerned with the injustices that may result from trial by television and headline...

...He was interrogated, to use the polite term, for twenty-six hours...

...Yet the issue may not be subject to swift burial...

...But Hogan, after certain preliminary and diligent inquiries, shrewdly yielded precedence to Brooklyn...

...The investigators located the young woman and found that she had indeed thrown away the photograph in New Jersey...

...If a defense lawyer believes his client is being subjected to illicit pressures, there are intermediate legal steps he can take to halt the abuse...

...no reporter could have compelled the Dallas police to behave as stupidly as they did...

...If the British system had prevailed, there would merely have been a cryptic announcement of Whitmore's arraignment...

...We will muddle along, or invite excessive restrictions, unless the legal profession joins in a concerted effort to change the rules...

...But the case was far from over...

...Curtailment of the prosecutor's liberty to say—or whisper—what he pleases will inevitably invite calls for new restrictions on the pre-trial utterances of defense counsel...

...But I end where I began...

...it is impossible and improper to render any judgment here as to whether, this time, they "got the right guy...

...The point is surely relevant...

...As this is written, the new prosecution has just begun...

...Another problem involves a large area of crime and politics that might become a privileged sanctuary if the rigorous British rules were duplicated here...

...his protest would be a matter of record and a valid matter for news coverage...

...It would hardly seem reasonable to permit the defendant's spokesman to charge "frame-up" or some other form of malfeasance in the public prints, and then prevent the accused public official from responding...

...Unfortunately, on the last occasion when Lewis F. Powell, Jr., the head of the American Bar Association, was quoted in the public prints, he was lamenting leniency in our law, and that seemed to be the major matter on his mind...

...Unfortunately, the average reporter may be less disposed to expend the effort if he knows he will not be permitted to win his modest moment of glory by promptly breaking the story...

...He and his partner in turn enlisted the aid of Stanley Reiben, a veteran trial attorney...

...Upon his arraignment, a youthful barrister was designated by the court to serve as his defense counsel...

...It was explored to some degree in the findings of the Warren Commission, which placed primary blame on the headline-hunting Dallas gendarmes for what amounted to pre-trial crucifixion of the accused...

...Minnie Edmonds, a forty-six-year-old housewife...

...A Hogan assistant, it is said, in going through the files of the Hoffert-Wylie case, was struck by the fact that Whitmore's confession coincided precisely with the previous police reconstruction of the crime, and that his confession added no new details...

...So precise were the data generously released by the victorious police officers that the recantation seemed a small, formal footnote...

...Beyond that, it seems to me that defense attorneys should have full right to solicit the aid of newspapermen in unearthing what they believe to be frauds or loopholes in the prosecution's case...

...But I question whether such mechanical imitation on a national scale would be desirable, even if it were politically conceivable...

...It is legitimate to ask whether, in the absence of such excitement, any lawyers would have been moved to volunteer their labors in a seemingly lost cause and whether any newspapermen would have been inspired to join the quest for truth...

...On balance, I can find no serious ground for preservation of the free-andeasy system of disclosure and leakage now practiced by too many prosecutors in too many places...