Dr. Janet McMullen

Copyright 2002

This issue places two constitutional rights in conflict:

1. Freedom to have a fair trial

• media coverage often destroys the right of a defendant before the trial begin
• may prejudice viewers/readers and prevent the selection of an impartial jury
• this is especially true when information presented in media is not admissible in court:

• --confession obtained improperly
• --lie detector test results
• --defendant's prior criminal record
• --evidence seized improperly

• many judges believe it is improper for media to publish information about these things prior to a trial.
• it is also important for judges to protect the decorum of the court, and provide an atmosphere conducive to providing a fair trial

2. Freedom of speech and press

• a. media presence is necessary to provide the public information it needs/wants
• b. first amendment takes precedence of over the 6^th.

{In other words, it's more important to be able to say what you want than to provide a fair trial]

Media defend their position by citing studies which appear to show that pretrial publicity does NOT influence potential jurors significantly...

Judges as a rule don't agree, and several cases have had problems when pretrial publicity made it impossible to provide a fair trial.

Supreme Court laid down several rulings which supported the significance of 1st Amendment in this area.

Cases:

• Judges may close a trial only after demonstrating a compelling need to protect the rights of the defendant
• Before closing a trial, judge must consider what other measures might achieve the desired result.
• Judge must limit the closing to as short a duration as possible

What is the history of cameras in the hearing or court room?

1. 1935: Brun Hauptman Trial: He was accused of kidnapping and killing the baby of Charles Lindberg. More than 800 reporters from around the world covered the trial and resulting circus atmosphere has lent concern and questions about the result. Middleton describes copy runners running in and out of the courtroom during the trial to get copy to newspapers and radio stations. Only a few cameras were allowed inside the courtroom, and photographers generally obeyed the rules..

But the trial became such a circus that it caused a hostility to cameras in the courtroom and in 1937 the American Bar Association adopted .

Canon 35 (in its professional code) which prohibited cameras in a courtroom because they detracted from the proceedings.

The 18 man committee reported to the Bar Association that Hauptman's trial had been "the most spectacular and depressing example of improper publicity and professional misconduct ever presented to the people of the United States in a criminal trial."

Hauptman was convicted and executed. He claimed to be innocent to the end.

2. McCarthy Hearings: It was television's coverage of these hearing that helped bring about the downfall of the McCarthy reign of terror. People could see him for what he was. Fred Friendly left CBS over the issue. (Remember he was Murrow's producer on "See It Now.") When Bill Paley decided to run an "I Love Lucy" rerun instead of covering the hearings, he could no longer take the tyranny of economy over ethics.

3. Marshall v. United States (1959): Supreme Court reversed a federal conviction of a drug dealer because the jurors had read in the newspaper about his previous two convictions.

4. Irvin v. Dowd (1961) : Supreme Court reversed an Indiana conviction for murder, and established a principle which would apply to all courts. --Verdicts reached y a jury which had been influenced by prejudicial publicity violated the the 6thAm. guarantee of trial by an impartial jury. Leslie Irvin was accused of murdering 6 people in Evansville, In., and showed so little remorse that he was compared to a "mad dog." (Mad Dog Irvin became his nick name). By the time he was tried, it was determined that practically everyone in Evansville had not only heard about the murder but decided he was guilty. The trial was moved to a nearby county, but again research revealed that jury had already made up its mind before the trial. They quickly found him guilty. The supreme court overturned the conviction. Irvin was later convicted in Central Indiana.

5. Rideau v. Louisiana (1963): Wilbert Rideau robbed a bank in Lake Charles and took three hostages, killing one before he was captured. After his capture the sheriff visited him in his jail cell and a news crew went along. During that visit Rideau confessed, and the film of that confession was broadcast all over the area. S. Court said his trial had therefore taken place in his cell and his own words had convicted him. Thus, the court said when there was pervasive exposure to such pretrial publicity, the trial could not be fair.

6. ESTES v. TEXAS (1965). Billie Sol Estes swindled a number of farmers out of millions of dollars. He had been on the cover of TIME magazine and had been the friend of two presidents. Texas and Colorado at that time were the only states which allowed cameras in the court room. The photographers operated behind a wall and beyond the sight of most participants, the court ruled that people could have had their behavior/opinions altered by the "little red light". Television was allowed to cover the pretrial hearings as well, and so the supreme court ruled that Estes did not get a fair trial. The court's majority opinion stated: "A defendant on trial for his life is entitled to his day in court, not in a stadium, or a city or a nationwide arena....(that)...will inevitably result in prejudice. Trial by television is, therefore, foreign to our system."

The New York Times described the situation in an article quoted in the decision on the case:

"A television motor van, big as an intercontinental bus, was parked outside the courthouse and the second-floor courtroom was a forest of equipment. Two television cameras have been set up inside the bar and four more marked cameras were aligned just outside the gates." The floor was strewn with cables and wires and photographers walked around the courtroom, even going behind the judge's bench to take pictures while the attorneys were speaking. (Teeter, 1995)

The dissenting opinion was written by Justice Tom C. Clark. He said the trial wasn't fair in this case, but he didn't think it meant that they NEVER allowed a fair trial. This left the door open...

7. Sheppard v. Maxwell (1966): According to Com Law Scholar Dwight Teeter, (p. 693)

"With perhaps the exception of the Lindberg kidnapping case of the 1930's, the ordeal of Dr. Sam Sheppard may well have been the most notorious case of Twentieth Century." (written before the O.J. situation)

The Supreme Court reversed the murder conviction of Dr. Sam Sheppard, a prominent doctor accused of killing his wife. He had served 10 years in the Ohio State prison before the court agreed to hear his case. Sheppard had always claimed he was innocent of beating his wife to death, even though they had been having marital problems. He said he awoke to find a strange "form" standing over his wife's body and then the stranger fled. But no one else had seen the stranger he claimed had fled his home.

One headline: "Somebody is getting away with murder."

Another: "Why isn't Sam Sheppard in Jail?"

In the weeks before he went to trial, the papers and other news media were flooded with stories about his guilt. Some of it occurred as early as the date of Marilyn Sheppard's funeral.

Court assumed that a radio and television coverage was as extensive as the print coverage. There were debates about his guilt over radio station WHK. Assertions that Sheppard's mistress lived in NYC were made by Walter Winchell on his broadcast.

• said he was an adulterer
• wife lived in fear of him
• but she refused to give divorce

When jury was selected, their names and addresses were published in the newspaper. They received phone calls and letters trying to persuade them and influence them. So many press members wanted to cover the trial, the judge set up an additional press table INSIDE the bar! It was so close to the defense table, "Shepphard had to confer with his lawyers in a whisper to avoid being overheard." While TV cameras were not allowed in the court room during the trial, he recessed the court and allowed TV photogs to burst into the room and get the witnesses in a shot before they could get out of the witness chair. In addition, they were allowed to stake out the sidewalks and interview witnesses before and after the trial.

News media cited 'evidence" that was not allowed into the trial. They interviewed "witnesses" that were never called to testify. News reporters of great prominence reported that Sheppard was guilty, long before the trial was over. Right before Christmas of 1954, Sheppard was convicted. Since the IRVIN case would not be heard for years, his pleas before appellate courts and the Supreme Court were avail.

1964, after Rideau and Irvin, his family hired F. LEE BAILEY who persuaded a new court of appeals judge to release him on the grounds that his trial had been conducted in a "carnival atmosphere." The appeals court disagreed, but the Supreme Court agreed to his release.

The court criticized the judge in the case,:

"the fact is that bedlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Sheppard.. [T]he judge lost his ability to supervise the environment. The movement of the reporters in and out of the courtroom caused frequent confusion and disruption of the trial."

Sam Sheppard was released and retried in 1966. Witnesses had died; people couldn't remember details...He was acquitted. He tried to resume his medical practice, but was sued for malpractice. He married, but that ended in divorce. He ultimately wound up as a professional wrestler, married to his promoter's 19 year old daughter. He died in 1970 of a liver disease.

In the Sheppard case, the court set down guidelines which could be followed to eliminate the problems of pretrial prejudice...

1. Judges should maintain stricter control over the courtroom and the premises around it.

2. Court should have insulated witnesses. Papers had interviewed all and disclosed their testimony...

3. Court should have made effort to control the release of all forms of information from witnesses, police, counselors, etc. Most of what came out what inaccurate.

• prosecution made tremendous amounts of information to the press
• much of it faulty
• much of it was never offered at trial

4. Outside information about the trial could have been controlled if city officials had told their own employees to NOT release information!

5. If there is likelihood that pretrial publicity could prejudice a trial:

• postpone the trial
• change the venue
• sequester the jury

• declare a mistrial and start over.

Florida conducted an experiment with television cameras in the courtroom in the mid-seventies. After a year-long experiment, studies showed that cameras had no significant impact on the participants of the trial. The state allowed cameras in after that.

Immediately after that decision to defendants (policemen accused of burglary) appealed their convictions due to the presence of cameras. The case, Chandler v. Florida went all the way to the Supreme Court which ruled that states had the right to allow cameras in courtrooms if they chose. The court cited technical changes since the ESTES trial and protections Florida has placed in its rules to protect defendants. A complete constitutional ban on cameras wasn't warranted. (See p. 375 Middleton) Florida didn't violate any constitutional rights, so the Supreme Court didn't have the right to intervene.

There are different regulations in different states, with some requiring the approval of the judge and parties involved. Alabama requires both. The federal courts still do not allow cameras in the court room.

As a result of the Sheppard Case and others, , courts have found remedies to the problems of cameras and news reporter in the courtroom:

The first 10 have been upheld so many times that they are taken for granted, and they mirror the suggestions made in Estes.

• Postpone (continuance) the trial until the publicity dies down. ( 6 months is usually the limit )
• Change of venue (common now)
• Rigorous use of voir dire to screen prospective jurors who have made up their minds prior to the beginning of the trial
• Restrictions on the number of reporters in the court room
• Prevent photographers from being in the courtroom
• Sequestration of the jury. (This is the last resort for most judges)
• Admonition to the jury: (don't read, etc)
• Change of venire : change the jury pool rather than location of the trial: Bus in a jury from another location; expensive, etc.
• Severance: when two people are charged with the same crime and are given separate trials to prevent publicity surrounding one from effecting the justice meted out to the other.
• New trial: if there's too much damage a conviction may be overturned and a new trial ordered.

The more controversial steps to protect the defendant are:

• Gag orders aimed at any or all court participants. Attorneys often peak to the press and present prejudicial information.
• Gag orders directed at reporters, but S.Ct. decision makes it hard to justify this.
• Closing to the press and public to parts of the trial process. Supreme Court decisions indicate that this has to be justified very carefully.
• Refusing to release the names and addresses of jurors to the news media.

Some of these imply restraints on members of the court and members of the press.  If you're interested in more details on this matter, check out the Com 400 lecture at http://fly.hiwaay.net/~jmcmulle/400camcourt.htm  

In the 1990s there were several cases which drew attention to the problem of trial publicity.  Were defendants getting a fair trial?  Were lawyers performing for cameras? Was the system compromised?  The Supreme Court does not allow cameras to be present during its sessions, and it was an historic change when it allowed audio tapes to be released of the arguments made before it during the aftermath of the 2000 Presidential election.  Some recent cases to recall and consider include:

• Lorena Bobbit
• William Kennedy Smith
• Mendez Brother
• O.J. Simpson

According to a TV Guide article on the impact and coverage of the case. "That the chief appeal of the Simpson case lay in its entertainment value may not be a very high-minded conclusion, but it seems inescapable in a time when entertainment has become the primary focus in American Life and especially in our media."

"The real sea change in American journalism over the last decade--and the one the Simpson coverage dramatically illustrated--has been the extent to which the story function of the news has eroded the information function. Where once the network evening news routinely reported items of national and international import and little else, sordid tales and feature stories now as often as not shoulder aside the hard news." (See TV GUIDE 7/30/94 p. 12)

Following the O.J. Simpson trial, cable network ratings dropped sharply, but were higher after the trial than they had been before it began. CNN had an O.J. Website; it had nearly 1 million visitors.

O.J. wanted an opportunity to tell his side of the story after the criminal trial. An interview was set up with NBC, but Simpson pulled out after he considered that his answers might prejudice the upcoming civil trial. He was offered a 90-minute interview with CNN's Larry King, but refused it. He approached Court TV, but they turned HIM down. None of the other networks would accept the pre-set conditions that Simpson wanted. See Broadcasting and Cable, 10/16/95 p. 8 for more details.

Simpson finally gave an interview, but the first interview in print was given to a New York Times reporter in a 45 minute telephone conversation. He was later interviewed on BET.

October 11, 1995 USA TODAY headline read, "Rebuilding O.J.'s Image: Simpson Trying to Fight off 'Aura of Guilt.'" The story proceeded to discuss how he was trying to reintegrate himself into society after his criminal acquittal. After the civil conviction, there's not much chance of that...

In a Special Report, TV GUIDE asked media professionals, "Did TV influence the O.J. Case?"

• Peter Jennings, "I would be inclined to think the coverage did not affect the outcome..."
• Harry Smith, CBS: "A major question is how the camera affected what the lawyers did everyday-let alone the judge's decision."
• Jack Ford, NBC: "It's disingenuous for anybody to suggest TV had an impact on the verdict of this case."

Other significant situations:

More recent issues involve the use of on-line publications to release hot stories before they can go to "snail" press. The Dallas Morning News got into some trouble with a supposed confession by Timothy McVeigh. They later pulled the story.

Should local television stations air a mini-series based on a local murder, before the jury has even been picked in the murder trial? An NBC affiliate in Fort Worth, Texas said, "yes" concerning the airing of "The Triangle Murders" in 1997. After they won their position in court, they pre-screened the program and elected not to show it. 

Should the news media release the sordid details of the Clinton-Lewinsky scandal?  Parents all over the country were having explanatory discussions with children that they would have preferred to postpone until the kids were a lot older.  Brill's did a number of stories on the coverage of the Clinton scandal, and some of those are cited in earlier lectures.  Check the Brill's archive if you're interested.

Court TV and Judge Judy 

Court TV was founded in the mid 1990s and was propelled into popularity by many of the trials mentioned above. Founded by Steven Brill, the cable channel is now working to encourage kids to stay away from violence.  See the "Your Turn" page at http://www.courttv.com/choices/yourturn/kansas/index.html .  It's part of their Choices and Consequences program, which I find to be really interesting.  Check it out.  Media people can do some very pro-social things, and I think this is one of them.

Note that Steven Brill is the editor and founder of Brill's Content. 

Never the less, the attention focused on these trials may be having some effect on the judicial process. There is a concern that while people may indeed learn more about the judicial process (as they did during the O.J. trial), the process is trivialized because it is becomes entertainment.  

Another concern in legal circles are the bevy of Judge So-And-So shows in syndication on television.  Judge Judy  was one of the first to really become successful, but she was predated by Judge Wopner of The People's Court.  A recent article on Law.com approached the issue.  "TV Judges Worrying Judicial Watchdog Agency" reported that the California Commission on Judicial Performance, the body that monitors the performance of judges in the state, is increasingly concerned about the behavior of television judges.  According to the article written for The Recorder by Gail Diane Cox, the commission gets letters on a regular basis from people complaining about the way the TV judges treat the people on the shows.  Some people even complain because the judges before whom they appeared in a regular court didn't behave the way the TV judges did.  Mike Farrell (yes, the actor who appeared in M*A*S*H* and now in Providence) serves on the eleven member commission as a lay-member with judges and lawyers, was quoted in the article:

"The purpose of our work is to protect the public from exactly the kind of thoughtless, mean-spirited and destructive behavior that pours forth from the 'courtrooms' of our television screens every day...As standards for judicial conduct are set by impostors accountable to no one, their immature antics tarnish the reputation of dedicated public servants."

Former real judges who are now on TV claim they have always been "outspoken."  Judge Judy, Judith Sheindlin, says she first some of the lines for which she is noted in her real courtroom years before.  David Danielsen, Chairman of the California Judges Association says "Judge Judy is a disgrace.  But what are you going to do?" (Cox, 6/8/2000) 

What are the ethical issues involved in this issue?

Pre-Trial Publicity & TESTIMONY ON TV: A TIMELINE

(partially provided from TV GUIDE 7/30/94 p. 14)

1953: Cameras allowed in Oklahoma Courtroom

1954: Political testimony in Army-McCarthy Hearings. Nation is riveted to the tube for the first of its kind broadcast.

1954: Sam Sheppard is tried for the murder of his wife in Cleveland, Ohio amidst chaos of press and photographers.

1955: First live broadcast of a trial takes place in Waco, Texas

1957: Senates McClellan committee hearings concerning Bobby Kennedy's accusations of corruption against Jimmy Hoffa and the Teamster's Union.

1959: Marshall v. United States. Case overturned because of pre-trial publicity due to jurors reading newspapers. FEDERAL case.

1961: Irvin v. Dowd: Conviction overturned because of excessive newspaper publicity. STATE CASE. (Evansville, Indiana)

1963: Rideau v. Louisiana : Televised confession caused court to overturn conviction.

1962: Estes v, Texas: Swindler Billy Sol Estes was tried and convicted in a courtroom full of reporters and cameras in Texas. The conviction was overturned by Supreme Court in 1965.

1966: Supreme Court reverses Sheppard's conviction. Retried and acquitted.

1973-4: On-going coverage of Watergate Hearings.

1979: Ted Bundy's trial is covered extensively.

1981: Chandler v. Florida. Supreme Court says Florida did not violate the Constitution by allowing cameras in courtrooms.

1982: Clause von Bulow's first TV Trial ends in conviction. His retrial is carried by CNN in 1985 and he is acquitted.

1984: CNN carries live the gang-rape trial on which the movie "The Accused" was based.

1987: Televised coverage of Judge Bork's confirmation hearings. Live coverage also of the Iran Contra hearings

1991: Gavel-to-gavel coverage of Pamela Smart's trial. She was accused of having her student murder her husband. Court TV covers hearing of Christian Chapman. Live coverage of Confirmation Hearings of Judge Clarence Thomas. Censored coverage at the William Kennedy rape trial.

1992: Riots follow the TV trial of police officers who beat Rodney King. TV coverage pre-trial hearings and sentencing of Amy Fisher. TV coverage of pretrial hearing of serial killer/cannibal Jeffrey Dahmer

1993: TV coverage of trial of Reginald Denny's accused attackers. Riots follow. Mendez brothers trial. Arraignment of Heidi Fleiss (Hollywood madam)

1994: Lorena Bobbit trial. O.J.'s pre-trial hearings.....

1995: O.J.'s trial.

1999: Clinton impeachment trial

2000: Timothy McVeigh trial

2002: Murder trial of Robert Blake and 9/11 terrorist.  While these have not yet happened, watch carefully how they are covered and to what degree either or both of these men are "tried in the media."

RESTRICTIONS ON MEDIA:

gag orders: This in contrast to usual prior constraint concerns. The court makes a distinction between restricting access and prior restraint.

NEBRASKA PRESS ASSOCIATION v. STUART(1976): Firmly established media's right to publish information about a trial. (see Middleton p. 385)

Six people were killed in Sutherland, Nebraska in 1975. Later their neighbor admitted to the murders. For four days there was tremendous publicity focusing on him and on the case. The judge ruled a complete gag order on all information concerning the pretrial proceedings and ordered the new media to closely adhere to Nebraska Press Association Guidelines. The NPA appealed the ruling. The case went to the Supreme Court which decided the prohibition was unconstitutional. Justice Berger, who wrote the opinion, did NOT say that prior restraint was illegal in all situations, but he said that it took a LOT of JUSTIFICATION to make it allowable.

To prove whether or not prior restraint is warranted,

• examine extend and nature of pretrial coverage
• would other measures solve the problem as well as prior restraint
• how effective would the effort be? Would it work?

1977 another case reinforced the NEBRASKA decision: OKLAHOMA PUBLISHING CO. v. DISTRICT COURT

Press was allowed in juvenile court to cover a detention hearing for an 11-year-old boy accused of killing a railroad worker. During the hearing his name and picture were shown. The judge ordered the press not to publish that information, but the Supreme Court said since it provided in OPEN COURT, the judge did not have the right to make such a prohibition.

But prior restraint does seem permissible in other cases:

• United States v. Noriega CNN was not allowed to broadcast tapes of Noriega which were to be used in the trial.
• 1984, SEATTLE TIMES CO. v. RHINEHART: Prior restraint was allowed because media personnel has obtained information and were going to be witnesses in the trial.

Be sure to examine the sections in the chapter re:

• PUNISHMENT AFTER PUBLICATION
• CONTEMPT!
  • civil
  • criminal

ACCESS to Courtrooms: In some cases judges are required to close courtrooms to protect the privacy of the victims in the case rape, incest, etc. But the court must prove COMPELLING NEED

• Access to record
• Appeals (re journalists)

Current Cases:  Watch the trials of any individuals associated with the events of 9/11 or the War on Terrorism; also watch the Robert Blake trial. To what degree are these "tried in the media?"  (excellent BEAR essay opportunity)

These notes were compiled before I ever thought of posting them on a web site. Some of the citations may be incomplete. I some of the information was recorded as it happened by myself. Check your textbook for more details and I will provide additional resources where I available.

• Carter, T. Barton, Mark A. Franklin and Jay B. Wright, The First Amendment and the Fifth Estate: Regulation of Electronic Mass Media, 3^rd ed. (Foundation Press: New York, 1993).
• Gabler, Neil. "O.J. The News as Miniseries." TV GUIDE . July 30, 1994, p. 13
• "Despite Record Ratings, Survey Says: "O.J. Overload." TV Guide Update. TV GUIDE, March 4, 1995 p. 53.
• Special Report. "Did TV Influence the O.J. Case? The Experts Hold Court." TV Guide,
• _______, 1995.

• Givens, Ron. "TV In Court: Who Wins?" Entertainment Weekly, July 13, 1990. P. 34.
• Middleton, Kent R. and Bill F. Chamberlin, The Law of Public Communication 3^rd ed. (Longman: New York, 1994)
• Overbeck, Wayne. Major Principles of Media Law, 1996 Edition. (Harcourt Brace: New York:1996).
• Teeter, Dwight and Don R. LeDuc. "The Law of Mass Communications: Freedom and Control of Print/Broadcast Media." 8^th Edition. (New York: Foundation Press, 1995).
• Tucker, Ken. "The Trouble with Tape." Entertainment Weekly, July 13, 1990, p. 36
• Royko, Mike. "Verdict is in on TV Cameras." Times Daily, June 26, 1995, p. 3b.

Here are some current sources which might aid your understanding of the topic:

• Associated Press. "Appeal Court: Public, Media have Little Right to Witness Executions."
• Freedom Forum Online. April 29, 1998.
• Associated Press. "California Senate Puts Focus on Paparazzi Bill." Freedom Forum Online. April 27, 1998.
• Hudson, David. "California Court Strikes Down Order Prohibiting Press Contact with Jurors." The Freedom Forum Online. April 27, 1998.
• Hudson, David. "House Approves Bill Allowing Cameras in Federal Courtrooms." Freedom Forum Online. April 27, 1998.
• "Judge kicks Defiant Reporters out of L.A. Courtroom." Freedom Forum Online. Feb., 24, 1998.
• Hudson, David. "Banning Post-Verdict Juror Interviews a Bad Policy." Freedom Forum Online. Feb. 27, 1998.
• Murphy, Mary. "Seeking the Truth behind the Trials." TV GUIDE, May 4, 1996, p. 26.
• Rovella, David E. "Jones Suit Shows Gag Weakness." The National Law Journal. 2/23/98 p. A01.
• "McVeigh Detailed Bomb Plot, Witness Says: Says she Regrets not Stopping Him." Dallas Morning News Online. April 30, 1997. (While I was unable to get the file to load while I was working on it today, I did find where it is probably located. If you want to see the article, go to http://www.dallasnews.com/index/bombhistory/-nf.htm . Once you get there, you should be able to find the listed article - if their server is working.)

Copyright , 1999

Dr. Janet McMullen