1. FAIR TRIAL & FREE PRESS Chapter 7

2. Fair Trial – Free Press Conflict 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 defense

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. Mad Dog Irvin’s 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

9. 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..

10. 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.“

11. Dr. Sheppard’s case Dr. Sheppard’s case Sheppard v. Maxwell (1966).

12. Dr. Sheppard’s 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.”

13. 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"

14. 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).

15. 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

16. 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

17. 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.

18. 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. Case reopened in the mid 1990s Civil lawsuit in 2000… Read more in the book

19. 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

20. 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)

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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.”

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 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.

31. 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.

32. 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.

33. 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.

34. 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?

35. 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.”

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. 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

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