Chapter Seven

1. Chapter Seven Fair Trial/ Free Press Conflicts

2. Objectives • To understand the conflict between the First and Sixth amendments • To be able to list the traditional judicial remedies to control publicity. • To understand rights of reporters, including the right to use cameras and video equipment in the courtroom.

3. Access to governmental proceedings and info • Three areas: judicial, executive, and legislative meetings and documents • Theory of access: media acts as surrogate for the public—not everyone can see trial in person, so media tells us what’s going on • No 1A right to gather information!

4. The OJ Simpson trial • Courtroom drama: OJ won criminal trial, but lost civil trial to victims’ families that said he was liable for deaths (lower burden of proof) • Media frenzy! Media told public all about past domestic issues between OJ and Nicole Brown • Result? Judges more wary about media in courtroom, whether reporters or cameras

5. Access to the judicial system • Clash between 1A rights of press and 6A rights of defendants • First Amendment gives media and the right to report crime news. • Sixth Amendment guarantees a person accused of a crime the right to a speedy and public trial before an impartial jury.

6. Access to the judicial system • But common law right to open courthouse and court records • Supreme Court in 1970s started to form 1A right for access to courts • Three ways judges try tocontrol journalists: • 1. Gag orders • 2. Closing the courtroom • 3. Forbidding cameras incourtroom

7. Prejudicial Publicity Problem Areas • Confessions: given to police • Test results: polygraph, lie detector • Priors:defendant’s past criminal record • Heresay evidence: stories that tend to influence the public mood against the defendant

8. Early cases • Irwin v. Dodd (1961) • Rideau v. Louisiana (1963) • Sheppard v. Maxwell (1966)

9. Early cases • Irwin v. Dodd (1961): “Mad Dog Irwin” had confessed to 6 murders; was convicted of one and alleged that jurors had been affected by publicity claiming he was guilty • Court said that regardless if jurorssaid they could be impartial, publicityundoubtedly affected, as 8 of 12 saidthey thought Irwin guilty before trial • Rideau v. Louisiana (1963): Courtoverturned death penalty because TV station had shown film of Rideau in jail cell confessing to police without attorney present—deprived of due process because jurors had seen film

10. Sheppard v. Maxwell (1966) • Sensational case—Dr. Sam Sheppard accused of murdering his wife • Lots of media publicity (jurors’ photos on front page, their addresses available to media, reporters inside the bar, etc.) • Sheppard convicted; appealed • Court said publicity (“carnivalatmosphere”) surrounding trialresulted in defendant’s rightto fair trial being denied • Given new trial as directed by Court and acquitted–but had already spent 12 years in jail

11. Sheppard’s “laundry list” to control media outside gags • Time/Place/Manner restrictions:how many journalists, use of courtroom space • Admonishing jury and reporters:warning jury to focus on evidence, warning reporters • Insulating witnesses:physical control of where witnesses are • Proscribing out-of-court statements (gag orders): telling people involved in case (lawyers, witnesses, and defendants) not to talk to media

12. Sheppard’s Remedies • Gag order:form of prior restraint; an order issued by judge to prevent prejudicial info from publication—enforced with contempt citations • Continuance:request to delay trial’s start to let pretrial publicity die down separating jury in a controversial case • Change of venue: request to move the trial from one geographic location to another • Admonish the jury: tell them to disregard the media publicity about the case • Sequester the jury: confine them in a place where they will not be able to read about the trial

13. Nebraska Press Association v. Stuart (1976) Gag Orders • Another sensational case; Erwin Simants accused of murdering entire family in Sutherland, NB • Court declared gag ordersa form of prior restraint,presumed unconstitutional ontheir faces (againstrecommendations ofpress-bar guidelines!) • Three-part test written byJustice Byron White istough standard

14. White’s three-part test in NPA • Gov’t has burden of proof to demonstrate that: • 1) nature and extent of pretrial publicity would impair defendant’s right to fair trial • 2) no alternative measures which could mitigate effects of publicity • 3) prior restraint wouldeffectively prevent the harm • Court said judges mustdeal with media effectswithout curbing media • Since this case, valid gagorders arerare; three justices said prior restraints always unconstitutional

15. Should you obey a gag order? • Two conflicting views: • U.S. v. Dickinson (5CA 1973): pretrial hearing gagged—reporters felt order invalid, published anyway; 5CA said order invalid but reporters must obey anyway; review of gags must be fast • In re Providence Journal (1CA 1986):court decided that Journal entitled todisregard order prohibiting publicationof mat’l from FBI wiretaps aboutmurder—media could ignore orderwhen failed on its face to satisfy testfor prior restraints • High court has not resolved, so best to be safe and obey gag orders, and appeal them quickly!

16. Access to judicial proceedings:Judges vs. Reporters After NPA, judges couldn’t gag, so turned to other means to control pretrial publicity Judges closed:Pretrial hearingsTrialsTestimony by minorsJury selectionPreliminary hearingCivil court proceedings

17. Access to judicial proceedings • Gannett v. DePasquale (1979): Courtheld that 6A guarantee of public trialwas personal guarantee for defendants,who could waive right—1A does notprovide access to courts • Closing courts was option of defendant;thus motions to close proceedings exploded! • Richmond Newspapers v. Virginia(1980): Court reversed itself: right ofaccess to actual trial is covered by 1A, but kept ban on pretrial hearings as established in Gannett

18. Broadening Richmond Newspapers • Globe Newspaper Co v. Superior Court (1982): trial judge closed part of rape trial; Brennan adopted compelling interests test for closing trial—automatic closure of proceedings is presumptively unconstitutional • The Press-Enterprise cases (Press-Enterprise v. Riverside County Superior Court (1984 & 1986)): expanded right ofaccess to voir dire in P-E I,and to pretrial proceedingsin P-E II (eliminatingRichmond Newspaper’sexception)

19. Closing the court today • Closure is occasionally allowed, but courts must follow precedent in either Richmond Newspapers or Press-Enterprise • A case has been made under Press-Enterprise cases for nearly every kind of judicial proceeding: plea hearings,sentencing, motion hearings,bail hearings • If closure is allowed, mustbe as limited and narrowas possible

20. Court documents • Recognition of 1A guarantee to see public court documents • Judges cannot seal without consideration of public right to know • Judges can deny public access to court documents and closecourtrooms only if itis clearly necessary toprotect defendant’s rightto fair trial

21. Voluntary guidelines • Reardon Reportrecommended (1) pretrial hearings should be closed if defendant wants (90% of all trial-related events are pretrial!); (2) contempt citation should be punishment against “extra-judicial information” • Many states adopted these “voluntary” guidelines • But when one WA judge enforced “voluntary” guidelines, outraged journalists appealed • Federated Publications v. Swedberg (WA SC 1981):WA Supreme Court said not prior restraint, merely moral promise, not enforceable…Yet, noncompliant journalists could be ejected from courtroom! • Later eased, but no more voluntary guidelines

22. Cameras in the courtroom • Cameras not historically permitted in courtrooms • Estes v. Texas (1965): Court said TV coverage of trial violated defendant’s due process • Overturned Billy Sol Estes’ conviction because of impact of cameras • Cameras in 1960s bright andobtrusive, interfered • Court also questioned impactof coverage on jurors, qualityof testimony on camera,additional responsibilities oftrial judge to monitor cameras,and adverse impact on defendant

23. A change... • Chandler v. Florida (1981): Court moved away from Estes—cameras now in use are less intrusive, thus disruption they cause is weaker • Criminal defendant must show that televising trial had prejudicial impact on outcome • No 1A right of access for cameras, but states are free to allow them without violating due process • Generally up to judge whether to allow cameras in the court

25. Cameras in state/federal courts • Only three states do not permit (IN, SD, MS) • Usually no cameras in federal courts • U.S. Judicial Conference experiment 1991-94 allowing cameras in two circuit courts and six federal trial courts, only civil trials • No extension of experiment, but increasedpressure from Congress and media • 1996 rules permitted circuit courts todecide for themselves; trial courts discouraged in civil and forbidden incriminal (only 2CA and 9CA permit) • Supreme Court: NO!! (Did permitaudiotapes of oral argument afterBush v. Gore in 2000)

26. Cameras in California Courts • Rule 980 • Judges will determine whether to allow cameras in courtrooms • Court redefined to include entire courthouse and its entrances • Judges can impose sanctions on those who violate the rule

27. Conclusion: Free press-fair trial • Following criticism of the Sheppard trial, judges now have a number of tools to protect against prejudicial pretrial publicity. • Cameras in state courtrooms depend on rules of individual states. • Prior restraints on publication to protect the right to a fair trial are ordinarily unconstitutional. • Judicial proceeding can only be closed for compelling reasons that are carefully substantiated.