1. Media and the Justice System

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

3. 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 defence

4. Prejudicial Crime Reporting Stories That Can Endanger Defendants’ Rights Confessions or stories about confessions the defendant is said to have made Stories about he defendant’s performance on a test, such as a polygraph Stories about the defendant’s past criminal record Stories that question the credibility of witnesses

5. Prejudicial Crime Reporting Stories That Can Endanger Defendants’ Rights Stories about the defendant’s 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

6. 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

7. 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. Dr. Sheppard’s case.

9. 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.”

10. Dr. Sheppard’s 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"

11. Dr. Sheppard’s case In 1963 F. Lee Bailey, Sheppard’s 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).

12. Dr. Sheppard’s case F. Lee Bailey contended, among other things, that prejudicial publicity before and during the 1954 trial violated Sheppard’s right to the due process of law An Interview with F Lee Bailey http://www.youtube.com/watch?v=srp0XnqWzy0 FLB crossexamination

13. Dr. Sheppard’s case In July 1964 Federal District Judge overturned Sheppard’s conviction calling the 1954 trial “a mockery of justice.” However, the Sixth Circuit Court of Appeals on a 2 to 1 vote, reinstated Sheppard’s conviction. Sheppard appealed to the Supreme Court

14. Dr. Sheppard’s Case The Supreme Court on the grounds that the publicity surrounding the trial prejudiced Sheppard’s 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.

15. Dr. Sheppard’s 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.

16. Rideau v. State of Louisiana 1963 Rideau convicted for murder and sentenced to death in 1961. The U.S. Supreme Court overturned Rideau’s 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."

17. 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

18. 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

19. 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..

20. 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

21. 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

22. 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

23. 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 defendant’s rights to issue such an order

24. 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

25. 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.”

26. Restrictive Orders on Press: Business Week magazine case In 1994 Procter & Gamble sued the Bankers Trust for Fraud Business Week magazine intended to publish litigation documents The judge in the case issued a gag order against the magazine HOWEVER: U.S. Supreme Court ruled that confidential information about a trial that was legally obtained by the press may be published

27. 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.

30. Access to jury selection process: Press Enterprise v. Superior Court (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.

31. Access to jury selection process: Press Enterprise v. Superior Court (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.

32. Access to jury selection process: Press Enterprise v. Superior Court (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.

33. Access to jury selection process: Press Enterprise v. Superior Court (1984) The Supreme Court Held: The guarantees of open public proceedings in criminal trials cover proceedings for the voir dire examination of potential jurors.

34. Access to preliminary hearing: Press Enterprise v. Superior Court (1986) 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?

35. Access to preliminary hearing: Press Enterprise v. Superior Court (1984) "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.”

36. 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

37. 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

38. Closed Proceedings and Sealed Documents Tips For Reporters When a Judicial Hearing is Closed Call the editor immediately to get a lawyer on the job Make a formal objection to the closure Ask the judge to delay the closure until the lawyer arrives

39. 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

40. 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 defendant’s right to a fair trial

41. 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

42. Bench-Bar-Press Guidelines Guidelines: Tell law enforcement officers what kind of information about a criminal suspect and a crime can be released and published with little danger of harm to the trial process Inform journalists that publication of certain kinds of information about a case can be harmful to the trial process

43. Protect Your Sources and Notes Promises: Some sources won’t talk unless you promise them confidentiality. To renege on a promise is to risk a lawsuit filed by the source. Watchdogs, Not Lapdogs: The government should do its own investigation, not rely on your information. Journalists are watchdogs on the government, not lapdogs.

44. The High Costs of Protection Journalists who refuse to comply with subpoenas requesting notes and/or the names of confidential sources risk contempt and jail. Vanessa Leggett: Spent more than five months in jail in 2001 for refusing to turn over notes from an interview regarding a murder investigation. Josh Wolf (free-lance / blogger): spent 226 days (7.5 months) in jail in 2007

45. Branzburg v Hayes (1972). Four separate cases, collective name Reporters are not constitutionally excepted from the duty to comply with grand jury subpoenas But the subpoena must be issued in ‘good faith.’ Journalists have a qualified constitutional right to withhold unpublished information and sources identity 1. What is the importance and relevance of information? 2. Can the information be obtained through different means? 3. What is the type of controversy? 4. How the information was gathered? Confidential?

46. Shield Laws More than half the states have laws protecting journalists

47. The California Shield Law Provides legal protections to journalists seeking to maintain the confidentiality of an unnamed source or unpublished information obtained during newsgathering WHO IT PROTECTS? a "publisher, editor, reporter, or other person connected with or employed by the media. The Shield Law also likely applies to stringers, freelancers, and perhaps authors.

48. WHAT INFORMATION IS PROTECTED? The source of any information. Unpublished information Specific information obtained during newsgathering but not disclosed to the public Includes "all notes, outlines, photographs, tapes or other data of whatever sort" Includes newsgatherer's eyewitness observations in a public place Protects only information obtained during newsgathering

49. Failing to Keep A Promise: Civil Liability Cohen v. Cowles Media: The First Amendment does not shield journalists from lawsuits or civil liability when they breach promises of confidentiality to their sources. “Enforcing the promises of confidentiality would not violate the newspapers’ constitutional rights.”

50. Failing to Keep A Promise: Civil Liability The legal theory on which the plaintiff in Cohen v. Cowles Media prevails after journalists breached promises of confidentiality to him. The theory allows courts to enforce promises, even though there is no legally binding contract, in order to avoid injustice.

51. Legal obligation to keep promises: Four Key Elements A plaintiff must prove four basic elements in order to prevail in an action for promissory estoppel: 1. The defendant made a clear and definite promise to the plaintiff; 2. The defendant intended to induce the plaintiff’s reliance on that promise; 3. The plaintiff reasonably relied on the promise to his or her detriment; and 4. The promise must be enforced in the interests of justice to the plaintiff.

52. Newsroom Searches Seminal Case Supreme Court case: Zurcher v. Stanford Daily Critical Federal Law: Privacy Protection Act of 1980

53. The Contempt Power 1. Contempt 2. First Amendment Limitations 3. Collateral Bar Rule