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The ’50s and ’60s were a strange time for courtrooms. The emergence of broadcast journalism changed the way people got their news. In 1961, the U.S. Supreme Court marveled in Irvin v. Dowd at how the media, broadcast in particular, had changed the way the public approached a criminal trial: “In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.”
It was virtually impossible to find jurors who hadn’t heard of a particularly high-profile case. Trial judges retained power over trial participants but sometimes failed to exercise those powers, resulting in unfair trials for defendants.
In 1963, the U.S. Supreme Court determined in Rideau v. Louisiana that a Louisiana trial judge had improperly denied a defendant’s motion for a change of venue. Defendant Wilbert Rideau had kidnapped three people and killed one in his 1961 attempt to rob a bank. When he was brought in for arrest, police videotaped Rideau’s confession. Shortly after, local news stations broadcast the tape on three separate occasions, reaching about 106,000 viewers in the area. The court noted that, during his confession, Rideau did not enjoy the right to counsel, and the broadcasting of his confession led to a trial by media and “kangaroo court” proceedings that violated his right to a fair trial.
Two years later, the Supreme Court overturned a swindling charge in Estes v. Texas because of press coverage of a pretrial hearing with about a dozen cameras covering the whole courtroom. The court noted that the presence of cameras in the trial courtroom changed the atmosphere – the defendant, judge, jury and witnesses become more self-conscious and focus on the cameras staring at them rather than the facts and trial at hand.
The court called the right to a fair trial “the most fundamental of all freedoms” and ruled that proof of just the appearance of prejudice is enough to deem a trial unfair. This extended the prior rule of the defendant having to prove prejudice during trial for his appeal to be successful.
Again the court commented on the rapid technological changes the media had faced in the last few years.
“It is said that the ever-advancing techniques of public communication and the adjustment of the public to its presence may bring about a change in the effect of telecasting upon the fairness of criminal trials,” Justice Tom Clark wrote in the majority opinion. “But we are not dealing here with future developments in the field of electronics. Our judgment cannot be rested on the hypothesis of tomorrow but must take the facts as they are presented today. The judgment is therefore reversed.”
In the 1966 case of Sheppard v. Maxwell, the court again threw out a conviction because a defendant had suffered an extremely unfair trial due to media coverage and the faulty discretion of the trial judge. Dr. Sam Sheppard had been convicted in 1954 of murdering his pregnant wife. At trial, the judge was up for reelection in a few weeks and was going to run against the prosecutor of Sheppard’s case.
What followed was a mockery of the trial process: At a public inquest hearing shortly after his arrest, police officers searched Sheppard in front of a huge crowd in a gymnasium, held at that location to account for all the cameras and reporters. Later on, in the tiny courtroom where Sheppard was tried, the trial judge delegated most of the seats to members of the press, saving only the last row of seats for families of the defendant and victim. The trial judge allowed a long table to be put in front of the bar that normally separated formal court proceedings from the spectating public, and from there cameras bowed down on the defendant and the jury.
Accusations of poor character, numerous extramarital affairs and a child with one mistress lined the headlines of nearby newspapers, but the trial judge did not dismiss jurors who admitted to hearing the claims. During deliberations, jurors were allowed to make unmonitored phone calls despite being sequestered.
The Supreme Court ruled 8-1 for Sheppard and noted that the trial judge should have done more to control his courtroom, by sequestering jurors and witnesses and not allowing as many cameras, or indeed any, into the courtroom – or at least not in front of the bar, an unprecedented move.
A half-century later, Sheppard’s son Sam Reese Sheppard failed to convince a jury of his father’s innocence and lost a civil lawsuit based on wrongful imprisonment.
It is cases like these that remind media professionals the possible ramifications of overstepping bounds, sensationalizing cases and not behaving ethically.
Writes Marah Eakin of Ohio University, “[J]ournalists cannot allow themselves to be driven by their gut reaction and popular hunger for gossip – they must think through their decisions and report only what is ethical and just. Cases like the Sheppard trial allow journalists to learn from past mistakes to create a better reputation for the future.”
The freedom of the press. The right to a fair trial. Both constitutionally guaranteed; both of equal import. When they two conflict, how can courts or others resolve the tension between them?
Pretrial publicity of high-profile criminal cases can bias jurors against the accused, making his or her trial unfair. Yet the First Amendment protects pretrial publicity. The Supreme Court confirmed its presumption of constitutionality in the ’70s, making it extremely difficult, but certainly not impossible, for a judge to issue a gag order of the press. There are other indirect methods of restricting press access to the courtroom that judges can use.
Judges, rather than silencing the media, can impose gag orders on court officials and involved parties if they want to control what goes to the press. If, for example, a lawyer leaks something to a reporter on the condition of anonymity, the judge can subpoena the reporter and demand to know the source of the leak. If the reporter stands by his word and refuses to give up his source, he may be sent to jail or otherwise sanctioned. Grand juries may also compel journalists to testify if they have witnessed the commission of a crime firsthand.
While 49 states have laws or judicial rulings that provide some protection to journalists, there is no federal law or Supreme Court precedent that safeguards the reporter’s right to maintain the confidentiality of his source. Post-publication sanctions on reporters could discourage them from writing about high-profile criminal cases. Some argue that gag orders on court officials have become an indirect way of preventing media coverage of criminal cases.
Apart from arguably indirect press restrictions, challenges to the legitimacy of press coverage of criminal cases are common. Despite 40 years of presumptive constitutionality, defendants still appeal convictions on claims of juror bias due to media coverage.
In 2010, for example, former Enron executive Jeffrey Skilling’s appeal based on juror bias made it all the way to the U.S. Supreme Court. In September 2012, convicted murderer and kidnapper Christian Karl Gerhartsreiter, known under his alias “Clark Rockfeller,” appealed his conviction in a Massachusetts appeals court; his appeal was based upon juror bias due to pretrial publicity. A district attorney challenged Quincy-based group Open Court’s freedom to film proceedings in Quincy District Court this past summer.
Even though pretrial publicity enjoys constitutional protection, it remains an issue today, through both challenges from defendants and indirect restriction of press freedom in gag orders of involved parties. Exposure to pretrial publicity can prejudice jurors. On the other hand, the cost of restricting press freedom could outweigh any benefit to society through protecting the accused.
What, then, is the resolution to this struggle?
That’s the thing I’m aiming to find out over the course of the Spring 2013 semester. It’s the main point of my directed study project under the supervision of Northeastern Assistant Professor of Journalism Dan Kennedy.
For now, let’s say the jury’s out on this one.