The Press in the Jury Box?

In 1947, the Supreme Court held that "what transpires in the courtroom is public property." By 1966, it had banned TV cameras and had deplored news reporting that posed "even the probability of unfairness." The change reflects growing concern over the kind of prejudicial publicity that might sway jurors and influence convictions. Although the court has yet to work out an accommodation between the constitutional rights of free press and fair trial, lawyers are proposing crime-news curbs that leave the U.S. press aghast. The press is now all but accusing the bar of yearning to imitate the British system of jailing errant editors for contempt.

In reversing Samuel Sheppard's murder conviction last June, the Supreme Court suggested that the bar and the police should button their own lips--thus silencing the key source of prejudicial news without curbing freedom of the press. But the press fears that even this will violate the "public's right to know" and foster "secret law enforcement" that shields lax or crooked police from press scrutiny. Fueling the fuss is the fact that the U.S. Judicial Conference, which recommends rules for federal courts, will soon weigh possible crime-news curbs that might later be adopted by state courts.

Inadmissible Evidence. Skeptics may well ask: Is prejudicial reporting really a problem? After all, only about 10% of U.S. criminal defendants plead not guilty and stand trial. Only a fraction get into the newspapers: from 1955 to 1965, U.S. papers devoted only 3% of their space to crime news. Americans believe that publicity is vital to justice; the press has often dug up evidence that exonerated as well as implicated defendants. Inflammatory reporting is on the wane. Even if it recurs, the Supreme Court's Sheppard decision ordered trial judges to combat it with long available devices. They should hold pretrial hearings in private, grant continuances and changes of venue, select jurors from distant localities, sequester jurors to make sure that they do not read papers and magazines, listen to radio or watch TV--and readily grant mistrials when they do.

Even so, many lawyers argue that such controls do not get at the key flaw in the system, which is unchallenged chatter that hits print between arrest and trial. Elaborate trial rules permit jurors to hear admissible evidence subject to searching crossexamination; the whole system is subverted when the press fills jurors' heads with inadmissible evidence--prior criminal records, rumored confessions, "flunked" lie-detector tests, a police chief's claim that "we got the right man." Some prosecutors announce indictments with unforgettable declarations of guilt. Defense lawyers then counter with vivid rebuttals--all of which may be read by prospective jurors.

Most Dangerous. Last fall a "tough" proposal was advanced by the American Bar Association's advisory committee on fair trial and free press, chaired by Justice Paul C. Reardon of the Massachusetts Supreme Judicial Court. Hitting the bar and the police rather than the press, the committee called on all U.S. courts to adopt new rules forbidding police, prosecutors, defense lawyers and judicial employees to make any out-of-court statement going beyond a bare description of the crime and the charges.

The blackout would extend from arrest to verdict (often years). Defense attorneys, prosecutors and police would be subject to contempt proceedings.

Most alarming to the press, the committee argued that during a jury trial (though not before) the same contempt proceedings should be invoked against anyone else who makes an out-of-court statement that is "reasonably calculated to affect the outcome of the trial and seriously threatens to have such an effect." That could include newsmen. Editors and even judges bridled at the A.B.A. plan. Judge George C. Edwards of the U.S. Court of Appeals for the Sixth Circuit called it "the most dangerous threat to American ideals of free speech and press since the days of Joe McCarthy."

Soft Approach. Equally upset was 79-year-old Judge Harold R. Medina of the U.S. Court of Appeals for the Second Circuit, who chairs the New York City bar association's fair-trial committee. Medina's group has now issued its own report calling for a "soft" approach that rejects pretrial court control over both the press and the police by means of contempt or any other form of "judicial censorship." Medina urged hands off the press, strictly voluntary codes of police silence, and only a tightened canon of ethics that would put the possible suspension or disbarment of talkative prosecutors and defense lawyers primarily in the hands of local bar associations -- not courts. Where the press is concerned, Medina pointed out that the Supreme Court has repeatedly voided convictions for contempt by publication, holding that it must present a "clear and present danger" to court proceedings.

As for police, Medina argued that courts have "absolutely no control" over them because they belong to the executive branch of government. Other judges disagree: police are widely considered an integral part of the administration of justice. The Supreme Court's famous Mallory rule commands federal police to bring suspects promptly before U.S. commissioners. In Mapp (1961), Escobedo (1964) and Miranda (1966), the court in effect ordered all American police to maintain certain standards on pain of losing their evidence. Last week Los Angeles Superior Court Judge Alfred Gittelson ordered all local police and prosecutors to obey an A.B.A.-style code of pretrial silence. He simply called them "ministers of justice."

A Little Give? Many lawyers applaud Medina's voluntary approach with its passionate defense of the First Amendment and its main reliance on a toughening of the A.B.A.'s Canon 20, which has rarely if ever been enforced since it was written in 1908 to prevent lawyers from publicly discussing pending cases. Unhappily for Medina's hopes, Canon 20 may be a frail reed: all efforts to reform it over the past decade have failed. Reform seems more likely by the imposition of court rules, even though Medina called it "unwise."

Worse for Medina, the American Society of Newspaper Editors has already denounced even his voluntary police code as "unduly restrictive" and unconstitutional. The militant Chicago Tribune protests even the Sheppard-style courtroom rules imposed by Judge Herbert C. Paschen in the current trial of Richard Speck. Last week the paper won a temporary stay from the Illinois Supreme Court of Paschen's refusal to release transcripts of testimony given in the courtroom until after the trial. The U.S. Supreme Court may take a different stand.

If the press refuses to give an inch, the odds favor new court rules that will wind up somewhere between the Medina and the A.B.A. plans. If the rules are not tough enough, the Supreme Court will inevitably get a bad case of prejudicial news coverage one of these days and perhaps restrict press sources even more. Medina clearly feels that the press should give the inch. Said he last week: "Frankly, I think those people don't know who their friends are."

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