Trial by Newspaper

The New Jersey Supreme Court was not particularly impressed by the claims of Murderer Louis Van Duyne. Convicted of what the court called "the patently vicious crime" of beating his wife to death with his fists, Van Duyne had appealed on the ground that among others Paterson newspapers inflamed the jury against him by saying that he had been "arrested at least ten times," had once "threatened to kill a cop," was now "accused of brutally beating his wife," and had allegedly told police, "You've got me for murder. I don't desire to tell you anything." The court found no prejudice, and it upheld Van Duyne's conviction. But Judge John J. Francis took the opportunity to issue a dictum banning all potentially prejudicial statements by police, prosecutors and defense lawyers throughout New Jersey.

Hard Balance. Despite the Jersey denial of Van Duyne's plea, "trial by newspaper" has caused U.S. appellate courts to reverse more and more convictions. Harvard's Law Dean Erwin N.

Griswold, for example, was convinced that "Lee Harvey Oswald could not have received a fair trial anywhere in the U.S. and the Supreme Court would have so held." Nothing like the Oswald case, said the Warren Commission, has so dramatized "the need for steps to bring about a proper balance between the right of the public to be kept informed and the right of the individual to a fair and impartial trial."

But the bar, as well as the press, has much to answer for. "Inflammatory" news stories that prejudice juries are "too often" published "with the prosecutor's collaboration," said Justice Felix

Frankfurter in 1961, when the Supreme Court vacated an Indiana murder conviction on just such grounds.

The New Jersey Supreme Court felt it had power to impose its ban on lawyers as "officers of the court" under the bar's canons of ethics. As the court read it, Canon 20 covers prosecution chatter "as to alleged confessions or inculpatory admissions by the accused, or to the effect that the case is 'open and shut' against the defendant, and the like, or with reference to the defendant's prior criminal record." As for defense counsel, "the right of the state to a fair trial cannot be impeded or diluted by out-of-court assertions by him to news media on the subject of his client's innocence."

New Problem. The New Jersey court apparently does not go along with Harvard's Dean Griswold and others who favor use of the contempt power to shut up talkative policemen. Superior officers should deal with improper statements that "constitute conduct unbecoming a police officer," said the court. As for inquisitive newsmen, the court added that nothing in its order "proscribes the reporting of the evidence as it is introduced before the jury by the state and the defendant during the course of the trial."

All this stirred outgoing President Sam Ragan of the Associated Press Managing Editors Association to warn that "we are hearing again the ancient cry that the free press is the enemy of fair trial." Ragan, who is executive editor of the Raleigh, N.C., News and Observer-Times, invoked the free press as the last bulwark before "the Star Chamber and ultimately secret arrest and secret trial." The Jersey court had not suggested Star Chamber courtrooms with no press present, but other critics found cause to wonder if the ban might not tend to overprotect lazy, incompetent or corrupt public officials. At any rate, the court's ruling was bound to provoke thoughtful debate and quite possibly a constitutional test.

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