The Bar: Free Press v. Fair Trial

THE BAR

In his coverage of the 1925 Scopes “monkey” trial, H. L. Mencken mercilessly shredded the arguments of Fundamentalist William Jennings Bryan, who served as a special prosecutor against the teacher of Darwin’s theory. Wrote Mencken: “The mountebank Bryan, parading the streets in his seersucker coat, is pointed out to sucklings as the greatest man since Abraham.” Was such reporting an attempt to influence the outcome of the trial?

Damon Runyon’s lively 1927 stories about Ruth Snyder and her boy friend, Henry Judd Gray, both accused of murdering her husband, included the information that “Mrs. Snyder and Gray have been ‘hollering copper’ on each other, as the boys say. That is, they have been telling.” Did the reporter learn this from a prosecution source?

The vast majority of reports on Richard Speck, accused of slaying eight nurses in 1966, all but said flatly that he was guilty. Was that because the police chief who supervised the manhunt said, “This man is the murderer,” soon after Speck’s capture?

If the answers to these questions are yes, then all of the news stories should have been rewritten—if the American Bar Association’s new free press-fair trial rules had been in effect at the time. Last week at its annual midyear meeting, the A.B.A.’s house of delegates voted overwhelmingly to adopt the standards proposed more than a year ago by a special ten-man committee (TIME, Oct. 7, 1966). Led by Justice Paul Reardon of the Massachusetts Supreme Judicial Court, the group had proposed some stiff rules; the delegates adopted every one.

Grounds for Contempt. The main intent was to curb out-of-court talking by judges, court employees, prosecutors, defense lawyers and police from the time of arrest to trial’s end. During that period, they would be permitted to give newsmen the defendant’s name, the nour and place of arrest, information about whether the defendant resisted or was armed at the time of arrest, a description of any physical evidence seized, and the nature of the charge. The jurists and cops would be specifically barred from revealing any previous record, the results of fingerprinting and lie detector tests, and whether the accused had confessed. They would also be prohibited from giving the identity of witnesses or stating any opinion as to guilt or innocence. The newly adopted A.B.A. guidelines propose penalties, up to and including contempt-of-court citations.

Newsmen would be free to print anything they could find out, except during the trial itself. Then they would have a general duty not to write anything “willfully designed to affect the outcome of the trial”—although to prove such willful design would not be easy.

Outpouring of Dismay. But it was widely predicted at the meeting that the A.B.A. move would lead state bar associations and many judges to adopt similar rules. In an understandable outpouring of dismay, newspapers throughout the U.S. attacked what they regard as a downplaying of the First Amendment’s free-press guarantee in a misguided attempt to build up due process of law. Typical was the reaction of the Baltimore Sun, which contended that “the dangers the restrictions would allegedly avert are smaller by far than the dangers inherent in a removal of law enforcement officers, district attorneys and judges from sharp and constant surveillance.”

Such worries seemed exaggerated. Still, if the rules are stringently enforced—which remains to be seen—reporting court cases will be very different and more difficult. Under certain circumstances, the reporters could be cited for contempt of court, depending on the attitude of the judge. By these ground rules, Dorothy Kilgallen could not interview the judge during Dr. Sam Sheppard’s murder trial and quote him as saying that Sheppard was “guilty as hell.” Not only would Candy Mossler’s attorney have to remain silent, Candy herself would risk a contempt citation if she held press conferences (as she did) during her murder trial. Reporters could quote what she said (as they did) so long as they were willing to risk citation for trying to affect the trial’s outcome.

What the new rules really mean is that reporters will have to stop relying on bull sessions in the station house or the district attorney’s office and do more legwork. If the press and officials respond as they should, the idle gossip pieces that slur a defendant should be eliminated without real impairment of the public’s right to know.