Your rights are on trial; Fair Trial Versus Free Press

The following tape recorded program is distributed by the National Association of educational broadcasters. It was felt here. It was impossible to obtain a fair and impartial jury after the saturation of the area with the type of public which was spread by these radio stations and this particular announcer. That was the actual voice of Harrison L. winter attorney for the state in the case of the Baltimore radio show the seventh in this series of authoritative discussions and authentic dramatizations of High Court cases in which youre right. Your rights are on trial by the University of Minnesota radio station

under a grant from the Educational Television and Radio Center in cooperation with the National Association of educational broadcasters and the University of Minnesota Law School. On today's program you will hear the leading authority as recorded in Baltimore and Washington D.C. But first to set the stage for the true authenticated of the Baltimore radio show. Here is one of the consultant commentators for your rights are on trial associate professor of law at the University of Texas. Mr. Wright. How do such things as say free press and fair trial come into conflict. Well assume you were accused of a crime while you were waiting for your joy trial. A local newspaper publishes several stories citing your relationship to the crime and the evidence against you. Well let's say a radio commentator talks about some questionable experiences in your past. Do you think such free expressions

might prejudice the judge and jurors who will try you. I'm sure many of you have heard of the expression he was tried by the newspapers. Perhaps the best way to understand this problem however is through an example. Our story for today is known likely is the Baltimore radio show versus the state of Maryland and it is the most recent High Court example of the conflict between free press and fair trial. Like so many test cases which determine the rights and responsibilities of the millions of good law abiding Americans our story today concerns the constitutional rights of a very unsavory individual involved in an extremely brutal crime. For many this factors the most difficult part of my legal system to understand let alone to accept. But life not scriptwriters picks the situations that interpret your freedoms and privileges. It can even start with a pointless tragedy involving three innocent young children by cycling home from a picnic on a warm summer day as it did in our present case.

On the afternoon of July six thousand nine hundred forty eight in the northwestern section of Baltimore. Wait for me wait for me. Hurry up our little brother. He's alright got a good time but my mother wanted to some I did tell time I said it isn't even three let's rest awhile and we better get home no wait a minute here comes a man I'll ask him what time rules let's just get going then give me a head start. Gets A crazy. Look at mister. Mean A. Nicer. Than. Your newscaster James Carville or Mike Gill and good evening everyone. Stand by for a sensation. Police Commissioner Hamilton R. Atkinson announced only a few moments ago that a man has been arrested and formally charged with the brutal and apparently pointless stabbing of 11 year old Marshall Braille in the

Pamlico neighborhood Tuesday afternoon. The funeral of the little murder victim was held today and hundreds of persons attended. The man charged with the brutal girl's murder is Eugene James a 31 year old negro and convicted offender. When James was up before for assaulting a 10 year old girl his sentence was 23 years. His release recently means therefore he served only about 10 years of the original sentence. This morning according to the officers James admitted an attack on a white woman recently in the same woods near where the girl was slain. James is not an obvious mental case. Throughout all his questioning he said the police he seemed as they put it quite cute In other words wary when James freely admitted the assault on the woman. The police were encouraged and renewed their interrogation with renewed vigor a few hours later. The prisoner broke again and this time it was the

break that broke the Brill case. James admitted that crime also and consented to accompany the police to the sea. I'm aground said the police. They made a more detailed admission. Eugene James was tried found guilty sentenced to die and executed. This is all there is to our story today. A brutal crime on a radio broadcast and yet before this case was finished it had been appealed to the United States Supreme Court and more than a dozen organizations such as the National Association of Broadcasters the bar association of Baltimore and the American Civil Liberties Union had entered the picture. Why how are anyone's constitutional rights involved here. Keep the Baltimore radio broadcast in mind. This is exhibit A. Exhibit A is what came to be the much debated Rule 9 0 4. A local law that was on the statutes in Baltimore at this time.

Here is part of Baltimore's contested Rule 9 0 4 in connection with any case which may be pending in the criminal court of Baltimore whether before or after indictment or any of the following acts shall be subject to punishment as contempt. The issuance of any statement relative to the conduct of the accused statements or admissions made by the accused or other matter bearing upon the issues to be tried. The publication of any matter which may prevent a fair trial. Improperly influenced the court or the jury or attend in any manner to interfere with the administration of justice. You have just heard part of Baltimore's rule non-O for which to fund the crime of contempt there in relation to the administration of justice. Did the broadcast we reproduced for you constitute contempt you heard the exact words broadcast over station Dubey i th in July eight thousand nine hundred forty eight. Could you have been an

impartial judge in this case if you had heard this broadcast. Do you think this broadcast could improperly influence a court. Did this broadcast constitute publication of statements or admissions made by the accused. If such a broadcast might prevent a fair trial in the words of Rule 9 0 4 it was in contempt or perhaps you may feel that rule not of force to strict rule not a for itself is in contempt of our constitutional guarantees of free speech and free press. And in a case I think you can see now that there are very major issues involved in this seemingly simple case for the story of what happened to these issues in Baltimore radio show versus the state of Maryland. Well let's turn to a man who was involved in this case throughout its course personnel winner is now a member of the law firm of miles in Stockbridge in Baltimore. In 1948 he was an attorney for the state of Maryland and one of his jobs was to bring contempt proceedings against three radio stations and one announcer for their broadcasts about

murder Eugene James. As recorded in his law office in Baltimore Mr. Harrison you know whenever I had the time that the case originated I was a member of the state law part of the state of Maryland. I was specifically an assistant attorney general. I was assigned by the then attorney general to go to work with him on handling this case and the further proceedings in the court of appeals of Maryland and of course in the Supreme Court of the United States. This case was originated by an attempt. The part of the criminal court of Baltimore to punish three radio stations and one of the announcers for contempt of court by reason of the fact that in advance of a criminal trial they proceeded to adopt the technique of trial by newspaper in that they were airing the confessions made by the defendant and otherwise

disclosing most of the evidence which would be the proper subject for the court at the trial on the guilt or innocence of this particular accused. It was felt here. It was impossible to obtain a fair and impartial jury after the saturation of the area and the inhabitants of the area with the type of published today which was spread by these radio stations in this particular announcer. The three radio stations and the announcer were tried for contempt and bottom are criminal court found guilty. Their conviction on the very nominal punishments that were imposed on them were reversed However by the Maryland Court of Appeals. That court held that rule 9 0 4 is unconstitutional but it does violate the great guarantees of a free press and free speech. The court pointed out ways in which the right to a fair trial could be preserved without

limiting a free press in the matter of rule 9 0 4. What are these ways. Here again is Mr Winner the majority opinion in the court of appeals said of course that whatever damage had been done. To this particular accused could have been cured by one of two devices one to examine jurors in advance as to whether they harbored prejudiced towards this defendant. The other would be to remove this case to another area of the state a way away from Baltimore City. I would not rely too Starlee on either of those devices because first of all I don't think that the underlying prejudice of the type which was done here. Can be discovered simply by examining a juror in advance of his serving his function as a jury. Secondly removal would not seem to be too adequate a remedy because in the first place

it's pretty hard to flee from the transmission's of a radio station. Secondly as a practical matter removal in the state of Maryland Unless the case were to be removed to some of the remote western counties would be removed to an area in which there was more underlying racial prejudiced prejudice we should say than might be found in Baltimore City. The case arose out of the perfectly horrible murder of an 11 year old child. The accused was a negro and of course while Baltimore is not one of the most southern cities yet it would be ideal for me to deny that the element of race prejudice is not present in Baltimore. There is a large segment of the population who would say that since this man was guilty and was proved guilty we should not pay too much attention to what constitutional rights he may have had that were violated in the in the

process of his trial. I don't think that the guilt or innocence of this particular defendant has or should have any real significance in the problem which these case presents. The problem really is one of a head on conflict between any guarantees of freedom of speech and freedom of the press and the other guarantee of fair and impartial administration of justice and the right to a jury trial by a person selected from the community in which the defendant resides. In these cases the trial court that is the criminal court about or found all of the defendants guilty of that. That judgment was appealed to the Court of Appeals of Marilyn and was reversed. The attorney general and myself then made application to the Supreme Court for writ of certiorari. We asked the Supreme Court to hear the case. And try to unscramble this conflict between the two

constitutional guarantees to which I have referred. We've all heard people say I'm going to appeal this all the way to the Supreme Court but in fact it's up to the Supreme Court to whether or not it will listen to appeals. The legal procedure for taking the case to the Supreme Court is what we call a writ of social Ramabai which merely a legal name for a request to the court to review a case. But the Supreme Court is very busy and only listens to about one out of every six cases that are brought to it. Usually when it sides not to hear a case it enters only a short order. In our case Mr Justice Frankfurter added an opinion. Speaking only for himself as an individual explaining the significance of the court's refusal to grant this writ of certiorari I. But one thing that can be said with certainty about the court's denial of Maryland's petition in this case is that it does not remotely imply approval or disapproval of what was said by the Court of Appeals of Maryland. It becomes necessary to say that

denial of this petition carries no support whatever for concluding that either the majority or the dissent in the court below correctly interpreted the scope of our decisions in earlier cases. This was the opinion in our case today by Mr Justice plank fritter. What are we to go on then when it comes to relating the rights of fair trial to the right of free press. Well there are other Supreme Court decisions that might be applied to the conflict. These were put forth effectively in this case by the amicus curiae who came forth by the dozen and because Korea is merely a Latin term which means friend of the court with the approval of the court. The friend of the court may present information which the individual or organization believes may be of help in resolving a particular case. Perhaps the best known friend of the court on this issue of fair trial versus free press is Mr ally sure Hansen attorney for the American Newspaper Publishers Association launched a Hanson was interviewed in his law office in Washington D.C. by the producer of the series

Philip Gale. Before we asked Mr. Hanssen to review the major high court test cases on fair trial and free press. GELB asked Mr. Hanssen a very pointed question about friend of the court briefs carry any actual legal weight or is it simply a matter of your standing you know. Well if I didn't think they carried a legal weight I would never bother to file one with the court. I think courts are busy enough without having to read a lot of paper that isn't of some value to it. And furthermore I know I am busy enough that I am not going to file something in court just to have it thrown in the wastebasket. I would never think of finally a brief just merely to influence a court by anything and the legal argument there. And now that we know Mr. Hanssen means what he says here is his review of the major court cases and fair trial versus free press as recorded in Washington D.C.

Mr. ally Sean Hanson One of the cases in which I have personally participated. Is there one that arose in California because of editorials that appeared in The Los Angeles Times some years ago. Another there O's in Miami Florida because of criticism of the delays in the administration of criminal justice in the courts of Miami a third that arose in Corpus Christi Texas because of the criticism by a veteran which was published in a newspaper of an arbitrary action by a judge a farce was a case of the rows and bottom are instead to the application of a rule of the criminal court above Mark. Which placed an effective censorship on the press of that city

in the reporting of crime news. The Burgess case as the California case has now got to the Supreme Court and the decision in that case the Supreme Court of the United States held that a newspaper could not be held for contempt because of a publication unless that publication created a clear and present danger to the administration of justice. The same holding fall in both the Penley camp and the Craig cases from Florida and Texas. Now there's been a consistent Supreme Court opinion on this issue which has continually upheld the right of the press is that right. No quite the contrary. The Supreme Court in the bridge's case the California case reversed prior

holdings of that court only that anything that was published in a judge's opinion had a tendency. To obstruct the administration justice was contemptuous since this case is a similar situation or with a lot more scary story now. I don't know whether they would carry the story now but they're free to carry that story now or any other story of similar importance. In other words they are no longer handcuffed in gathering and reporting news about the administration of justice in their criminal courts are two guest authorities today who were personally involved in the Baltimore radio show case where Mr alife Henson general counsel for the American Newspaper Publishers Association and we just heard Mr. Harrison Winter who was assistant attorney general in Maryland at the time this case occurred before we returned to these two gentlemen for brief statements on how they believe the conflicts between a fair trial and free press can be resolved here is still another

point of view in this broad problem that merits consideration. Has interviewed him yet hitter's office of The Washington Post in Washington DC. Here is Mr. James Russell wakens to explain his interest in our case today. Mr. wakens for the past three years I've been chairman of the Freedom of Information Committee of the American Society of Newspaper Editors. Prior to that time I was chairman of a similar committee for the Associated Press managing editors Association. I think that in the minds of many members of the bar in the minds of some newspaper people there may be a conflict but basically I think that the two rights are complimentary and and supplementary and I didn't come to like what is involved here is the public's right of access to legal proceedings. This we think is essential not only to the protection of the right of the accused but for the protection of the community as a whole to see that justice is done. And in other broader ways

public trial improves the administration of justice quality of evidence amount of evidence disciplines the court attendance and the judge in a better performance of their duties goes up before the community an example of the consequences of wrongdoing acquaints citizens. As the trial unfolds with their rights and how they may be influenced and affected whether trial publicity is the best check upon the administration of justice and anybody is devised and it improves the quality of justice. That was Mr. James Russell Wigan's editor of The Washington Post and chairman of the freedom and Information Committee of the American Society of Newspaper Editors. How might the conflict between fair trial and free press be solved. First Mr. Harrison winter so far is English cases and

courts are concerned they do not permit any publication in advance of trial of any of the evidence which is to be produced at trial. In fact from my own reading of some of the newspapers I find that the English courts apparently do not even permit the reporting of these specific crimes with which a defendant or an accused is charged. My own feeling is that the proper approach really lies somewhere between the system on the one hand and the system adopted by our court of appeals in Maryland on the other for a different point of view. Mr A life handsome. I think there's some issue of a free press as against a fair trial as a complete phony. And the reason for it is this that every judge of ability and fortitude has it within his power

in the conduct of his car to see that any defendant in any case gets a fair trial irrespective of what the newspapers regard about the proceedings. Now if the case happens to be one of great public interest and the judge thinks there is a likelihood that because of the public concern over that case a defendant might get a fair trial. He didn't grant a motion for change of venue and send that case far away where there would be no such public. Before we hear a summary of today's case by Associate Professor of Law Charles Allen right there in mind what was at stake here. The state of Maryland was not trying merely to uphold a local law but to uphold the Constitutional right to a fair trial by an impartial jury. Nor were they trying to free a defendant Eugene James who had been convicted and was later executed. Oh the state

was asking for was a trial for the accused in an area and atmosphere free of propaganda and prejudice in this given situation. And now once again here is one of the consultant commentators for your rights are on trial Mr. Charles Allen right. The problem we have looked into to die is quite different from most of those that we've been considering this series. And most of our cases we've had to choose between preserving the rights of an individual protecting society from criminals and other menaces of that sort. Today's case the choice is rather between two rights of the individual and of society generally both of which we hold in high esteem. How are we going to choose between these two when it is some of our authorities seem to have thought they come into conflict isn't today's problem. Certainly no one world. Not I but Mr Wiggins says that published that he is the best check upon the

administration of justice that anybody has devised. Historians remember in England the court of the star chamber three hundred years ago where people were tried convicted sentenced all in secret and we know now that a good many of the people that were found guilty by the secret court were not in fact guilty. So that not only society but also the individual who is on trial has a strong interest in having public access to the court proceedings so that he can be protected against an unjust trial. At the same time it would be naive to suppose that the press has not caused a hostile atmosphere in some cases and almost surely has led to the conviction of people for crimes they did not commit. We've seen time and again exciting stories all over the newspapers reporting evidence which no court would ever admit. Reporting guesses by the police which may not be founded in fact other prejudicial matter be English system which was explained to us by

Mr Winter. Permits the press to attend the trial report the proceedings but they cannot publish anything about the case until after the case has been ended so that the public hears what its courts are doing. But it doesn't hear about it until after the particular individual accused of the crime has been tried and he's had his trial in an atmosphere free of public excitement. Perhaps the system would be an improvement over what we have in this country. Certainly the English have enjoyed liberty under their system no less degree than we have but as in so many other things though the American system may not be theoretically perfect. My guess would be that we're not likely to see any major change that in fact the pressures today are not in the direction of limiting the press in the interest of a fair trial. The pressures of today are to give the press even further access to the administration of justice to permit broadcasting or televising of court proceedings. And so it seemed to me

a bit. Probably what we're going to have is a preservation of our present system in which the press is quite free to report the details of crimes and trials for crimes. And if that is to be our only assurance that. We will not have persons unjustly convicted because they've been tried in the newspapers and found guilty there is the responsibility of the press. As is true with so many of our other rights it is the responsibility of their exercise which is most important to their preservation. But certainly we're going to have problems in the future. This is going to mean a continuing re-evaluation of this conflict if it is a conflict in future court cases along the same lines as the case we've looked into today. The boy. With the bank.

You have just heard the case of the Baltimore radio show. Program and this is your right to run trial by station in cooperation with the University of Minnesota Law School under a grant from the Educational Television and Radio Center. This program is distributed by the National Association of educational broadcasters. Are professors of law Brad Paulson and Charles Allen Wright. Mr. Wright was the commentator on today's program. Your rights are on trial is written edited and produced by Philip. Can civilian be tried in a military court. This question will be answered next week in the case of the Korean killer. Join us next week at the same time for an authoritative discussion an authentic dramatization of a Supreme Court case in which all rights are on trial.

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