FAIR TRIAL

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FAIR TRIAL FREE PRESSchapter 7

• Communications Law. COMM 407, CSU Fullerton

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Fair Trial Free Press Conflict

• Problem No. 1
• The conflict between
• The 6th Amendment protections for criminal
  defendants and
• The 1st Amendment rights of free speech
  (reporting trials and other court proceedings)

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The Sixth Amendment

• the right to a speedy and public trial, by an
  impartial jury of the State and district wherein
  the crime shall have been committed
• to be informed of the nature and cause of the
  accusation
• To be confronted with the witnesses against him
  to have compulsory process for obtaining
  witnesses in his favor
• To have the assistance of counsel for his defense

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Prejudicial Crime Reporting

• Stories That Can Endanger Defendants Rights
• Confessions or stories about confessions the
  defendant is said to have made
• Stories about he defendants performance on a
  test, such as a polygraph
• Stories about the defendants past criminal
  record
• Stories that question the credibility of witnesses

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Prejudicial Crime Reporting

• Stories That Can Endanger Defendants Rights
• Stories about the defendants character,
  associates or personality
• Stories that tend to inflame the public mood
  against the defendant
• Stories that are published or broadcast before a
  trial and suggest, imply or declare the defendant
  is guilty

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Prejudicial Crime Reporting

• Impact on Jurors
• Research has not yet proven that publicity
  creates prejudice against a defendant
• Research has not yet proven that jurors cannot
  set aside their beliefs about a case and render a
  verdict based solely on facts presented in court

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Prejudicial Crime Reporting

• An Impartial Juror
• Is not required to be free from all knowledge or
  impressions about a case
• But, must be free of deep impressions and beliefs
  that will not yield to the evidence that is
  presented during the trial

8
Mad Dog Irvins case Irvin v. Dowd (1961) The
first time the High Court overturned a criminal
conviction because of pretrial publicity.

• Leslie Irvin was convicted in 1955 and sentenced
  to death
• In a 1961 review of the case, the U.S. Supreme
  Court found that Irvin had not received a fair
  trial
• Prosecutors said he had confessed to murder
  though Irvin later denied the confessions
• They labeled him a ''mad dog killer'' and ''mad
  dog Irvin.
• He was tried amid intensive media coverage.
• He was denied second request for change of venue

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Mad Dog Irvin case (1961)

• Where an attempt has been made to secure an
  impartial jury by a change in venue, but it
  appears that such a jury could not be obtained in
  the county to which the venue was changed, it is
  the duty of the court to grant a second change of
  venue.

• .

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Rideau v. State of Louisiana 1963

• Rideau convicted for murder and sentenced to
  death in 1961.
• The U.S. Supreme Court overturned Rideaus
  conviction on the basis that a secretly taped
  interrogation session was aired repeatedly on the
  local television station KPLC-TV's evening news,
  resulting in a biased jury pool and a "kangaroo
  court.

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Dr. Sheppards caseSheppard v. Maxwell (1966)

• .

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Dr. Sheppards case

• On July 4, 1954, Marilyn Sheppard, the wife of a
  handsome thirty-year-old doctor Sam Sheppard, was
  brutally murdered in the bedroom of their home in
  Bay Village, Ohio, on the shore of Lake Erie.
• Sam Sheppard denied any involvement in the murder
  and described his own battle with the killer he
  described as bushy-haired.

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Dr. Sheppards case

• From the beginning the case brought a great
  interest from the media. Generally, the media
  were hostile toward Sam Sheppard
• Sam Sheppard was found guilty of murder in the
  second degree by Cleveland, Ohio, jury in 1954
• Second-degree murder is ordinarily defined as an
  intentional killing that is not premeditated or
  planned, nor committed in a reasonable "heat of
  passion"

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Dr. Sheppards case

• In 1963 F. Lee Bailey, Sheppards attorney, filed
  a petition for habeas corpus in federal court
• (a petition demanding an explanation of the basis
  upon which the prisoner has been detained. This
  type of writ is generally considered to be an
  "extraordinary remedy", meaning that the prisoner
  has exhausted all other avenues of relief or
  appeal, and no other adequate remedy remains).

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Dr. Sheppards case

• F. Lee Bailey contended, among other things, that
  prejudicial publicity before and during the 1954
  trial violated Sheppards right to the due
  process of law
• An Interview with F Lee Bailey
• http//www.youtube.com/watch?vsrp0XnqWzy0
• FLB crossexamination

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Dr. Sheppards case

• In July 1964 Federal District Judge overturned
  Sheppards conviction calling the 1954 trial a
  mockery of justice.
• However, the Sixth Circuit Court of Appeals on a
  2 to 1 vote, reinstated Sheppards conviction.
• Sheppard appealed to the Supreme Court

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Dr. Sheppards Case

• The Supreme Court on the grounds that the
  publicity surrounding the trial prejudiced
  Sheppards right to a trial by an impartial jury.
  (Sheppard v. Maxwell 1966)
• The state of Ohio decided to retry Sheppard.
• He was acquitted on November 16, 1966.

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Dr. Sheppards Case Epilogue

• Sheppard returned to his surgical practice, but
  with deteriorated skills and drinking problems
  botched two operations, killing both patients
• In 1969 made his debut as a professional wrestler
  using the name Killer Sheppard
• Sheppard died in 1970, at the age of 46.
• Case reopened in the mid 1990s
• Civil lawsuit in 2000 Read more in the book

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Traditional Judicial Remedies

• Voir Dire (to speak the truth) - each
  perspective juror is questioned prior to being
  impaneled in an effort to discover bias
• Challenges for cause when an attorney convinces
  the court that there is a good reason a potential
  jury member should not hear the case
• Preemptory challenges a limited number of
  challenges granted without need to prove cause
  for removal of a jury member

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Traditional Judicial Remedies

• Change of Venue when a judge orders a trial
  moved to a distant county to find a jury that has
  not been exposed to publicity about a case
• Change of Veniremen when the court imports a
  jury panel from a distant community (RARE)

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Traditional Judicial Remedies

• Continuance when a judge postpones a trial for
  weeks or months
• A continuance may be granted when a judge expects
  people in the community will forget at least some
  of the publicity surrounding the case

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Traditional Judicial Remedies

• Admonition to the Jury when judges tell
  impaneled juries they must render their verdict
  solely on the basis of the evidence presented in
  the courtroom
• Sequestration of the Jury when judges seclude
  jury members from all publicity
• Jury members live in a hotel and eat all meals
  together
• All media accounts and personal communication are
  screened for information about the trial before
  jury members can see or hear it

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Restrictive Orders gag orders

• Judges issue restrictive orders, also known as
  gag orders to stop those involved in a case
  from making public comments
• Can be issued to
• Plaintiff and defendant
• Attorneys
• Press

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Restrictive Orders on Press

• Nebraska Press Association v. Stuart (1976)
• The judge in a sensational murder trial issued a
  restrictive order barring the printing or
  broadcasting of material about the victims
• U.S. Supreme Court ruled this order was an
  unconstitutional prior restraint on the press
  there must be a clear and present danger to the
  defendants rights to issue such an order

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Restrictive Orders on Press

• Nebraska Press Association Test for Restrictive
  Orders Aimed at the Press
• There must be intense and pervasive publicity
  about the case
• No other alternative measure might mitigate the
  effects of the pretrial publicity
• The restrictive order will in fact effectively
  prevent prejudicial publicity form reaching
  potential jurors

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From the majority opinion in Nebraska Press
Association v. Stuart (1976)

• We reaffirm that the guarantees of freedom of
  expression are not absolute prohibition under all
  circumstances, but the barriers to prior
  restraint remain high and the presumption against
  its use continues intact.

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Restrictive Orders on Participants

• Gag orders aimed at participants are not uncommon
  in high profile cases
• The law regarding restrictive orders barring
  participants from speaking or publishing about a
  case, however, is still developing

28
Access to Proceedings Richmond Newspapers v.
Virginia (1980)

• After a series of mistrials in a murder case in
  the state of Virginia, a trial judge closed the
  trial to the public and the media. Defense
  counsel brought the closure motion the
  prosecution did not object. Two reporters of
  Richmond Newspapers, Inc. challenged the judge's
  action.
• Question Did the closure of the trial to the
  press and public violate the First Amendment or
  the Sixth Amendment?

29
Access to Proceedings Richmond Newspapers v.
Virginia (1980)

• The Court held that the right to attend criminal
  trials was "implicit in the guarantees of the
  First Amendment."
• The First Amendment encompassed not only the
  right to speak but also the freedom to listen and
  to receive information and ideas.
• Also, the First Amendment guaranteed the right of
  assembly in public places such as courthouses.

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Access to jury selection process Press
Enterprise I (1984)

• The petitioner moved that the voir dire at a
  trial for the rape and murder of a teenage girl
  be open to the public and the press.
• The State opposed, arguing that if the press were
  present, juror responses would lack the candor
  necessary to assure a fair trial.
• The trial judge agreed and permitted petitioner
  to attend the "general" but not the "individual"
  voir dire proceedings.

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Access to jury selection process Press
Enterprise I (1984)

• After the jury was empaneled, petitioner moved
  for release of the complete transcript of the
  voir dire proceedings
• Both defense counsel and the prosecutor argued
  that release of the transcript would violate the
  jurors' right to privacy.
• The court denied the motion.

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Access to jury selection process Press
Enterprise I (1984)

• Petitioner then sought in the California Court of
  Appeal a writ of mandate to compel the trial
  court to release the transcript and vacate the
  order closing the voir dire proceedings.
• The petition was denied, and the California
  Supreme Court denied petitioner's request for a
  hearing.

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Access to jury selection process Press
Enterprise I (1984)

• The Supreme Court Held
• The guarantees of open public proceedings in
  criminal trials cover proceedings for the voir
  dire examination of potential jurors.

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Access to preliminary hearing Press Enterprise
II (198)

• Does a qualified First Amendment right of public
  access attach to a preliminary hearing, and under
  what conditions may the hearing be closed to the
  public while ensuring a fair balancing of First
  Amendment and Sixth Amendment guarantees?

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Access to preliminary hearing Press Enterprise
II (1986)

• "Plainly the defendant has a right to a fair
  trial
• but,
• one of the important means of assuring a fair
  trial is that the process be open to neutral
  observers.
• Therefore, the preliminary hearing shall be
  closed only if specific findings are made
  demonstrating a substantial probability that fair
  trial will be put at risk by publicity and that
  no reasonable alternatives to closure exist.

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Press-Enterprise Test

• The party seeking closure must advance an
  overriding interest that is likely to be harmed
  if the proceeding or document is open
• Whoever seeks the closure must demonstrate that
  there is a substantial probability that this
  interest will be harmed if the proceeding or
  document remains open

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Press-Enterprise Test

• The trial court must consider reasonable
  alternatives to closure
• If the judge decides that closure is the only
  reasonable solution, the closure must be narrowly
  tailored so there is an absolute minimum of
  interference with the rights of the press and
  public to attend the hearing or see the document

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Access to Courtroom Documents

• The First Amendment rights must be balanced with
  the Sixth Amendments rights
• Before barring access to documents the judge must
  determine
• 1. Allowing public access would cause a
  substantial probability that irreparable damage
  to fair trial right will result
• 2. There are no alternatives
• 3. There is a substantial probability that the
  ruling would be effective

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Access and Broadcast Journalists

• Access to audio- or videotaped evidence is still
  developing in the courts
• Courts have granted journalists increasing rights
  to make copies of evidence for later broadcast

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Recording and Televising Judicial Proceedings

• Cameras and recording devices are now permitted
  in all but two states and the District of
  Columbia
• The U.S. Supreme Court ruled in Chandler v.
  Florida (1981) that the mere presence of cameras
  in the courtroom does not prejudice a defendants
  right to a fair trial

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Recording and Televising Judicial Proceedings

• Federal courts refuse to permit cameras in the
  courtroom
• Cameras are also barred from executions and jury
  deliberations in most states