Pre-Trial Publicity, the First Amendment, and "The Fugitive" - Part One, Gagging the Parties and Controlling the Media

In this post from last week, I wrote about the order entered by U.S. District Court Judge Reggie Walton in the Rogers Clemens perjury case prohibiting Clemens, potential witnesses and lawyers "from making any future statements about this case to the media or in a public setting outside the courtroom." An order prohibiting participants in a case from commenting to reporters or the public infringes on the First Amendment rights of the individuals gagged. Gag orders also interfere with the media's efforts to gather and disseminate news, again implicating the First Amendment. What interests are being served by this use of judicial power to curtail First Amendment rights?

Judges justify gag orders as necessary to protect a person's right to a fair trial, the fair administration of justice, or the sanctity of jury deliberations. The power to gag trial participants comes from the Fifth and Sixth Amendments as interpreted by the Supreme Court in the case of Sheppard v. Maxwell, 384 U.S. 333 (1966), otherwise known as the Sam Sheppard murder case.

It has long been surmised that the television drama "The Fugitive" was loosely based on the Sam Sheppard murder case. Dr. Sheppard's pregnant wife, Marilyn, was bludgeoned to death in the upstairs bedroom of their Ohio home in the early morning hours of July 4, 1954. Dr. Sheppard testified that he had fallen asleep downstairs, and was awaken by a cry from his wife. He rushed upstairs and encountered "a bushy-haired man" standing over his wife's bed. Sheppard struggled with the intruder, who knocked him unconscious. When he regained consciousness, he went downstairs to investigate a noise, and again encountered the intruder. Dr. Sheppard chased the intruder out of the house, struggled with him again, and was again knocked unconscious.

After an investigation, indictment, and nine week trial that ended in December 1954, Dr. Sheppard was convicted of murdering his wife. His case came before the Supreme Court on a federal habeas petition raising the issue of whether Dr. Sheppard had been deprived of a fair trial because of the trial judge's failure to protect him sufficiently from the "massive, pervasive and prejudicial publicity that attended his prosecution."

The Court's decision in Sheppard v. Maxwell is fascinating reading, describing in detail not only the extent of the pre-trial publicity, but how at trial the courtroom was taken over by the media and the jurors turned into media stars. In addition, the trial was apparently the first time that a helicopter was used to gather news. The jury visited the Sheppard house on the first day of trial. The time of the visit was revealed so far in advance that one of the newspapers was able to rent a helicopter and fly over the house taking pictures of the jurors on their tour.

Not surprisingly, the Supreme Court granted Dr. Sheppard's habeas petition, concluding that he did not receive a fair trial consistent with due process. The Court admonished the trial judge for not responding forcefully to the pre-trial publicity about the case:

[T]he court should have made some effort to control the release of leads, information, and gossip to the press by police officers, witnesses, and the counsel for both sides. Much of the information thus disclosed was inaccurate, leading to groundless rumors and confusion. . . . Under such circumstances, the judge should have at least warned the newspapers to check the accuracy of their accounts. And it is obvious that the judge should have further sought to alleviate this problem by imposing control over the statements made to the news media by counsel, witnesses, and especially the Coroner and police officers. The prosecution repeatedly made evidence available to the news media which was never offered in the trial. Much of the "evidence" disseminated in this fashion was clearly inadmissible. The exclusion of such evidence in court is rendered meaningless when news media make it available to the public. . . . The fact that many of the prejudicial news items can be traced to the prosecution, as well as the defense, aggravates the judge's failure to take any action. . . . Effective control of these sources—concededly within the court's power—might well have prevented the divulgence of inaccurate information, rumors, and accusations that made up much of the inflammatory publicity, at least after Sheppard's indictment.

Having concluded that "the court's fundamental error is compounded by the holding that it lacked power to control the publicity about the trial," the Court specifically set forth the ways in which the trial court could have controlled potentially prejudicial publicity:

More specifically, the trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters, such as the refusal of Sheppard to submit to interrogation or take any lie detector tests; any statement made by Sheppard to officials; the identity of prospective witnesses or their probable testimony; any belief in guilt or innocence; or like statements concerning the merits of the case. . . . Being advised of the great public interest in the case, the mass coverage of the press, and the potential prejudicial impact of publicity, the court could also have requested the appropriate city and county officials to promulgate a regulation with respect to dissemination of information about the case by their employees. In addition, reporters who wrote or broadcast prejudicial stories, could have been warned as to the impropriety of publishing material not introduced in the proceedings. . . . Had the judge, the other officers of the court, and the police placed the interest of justice first, the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom—not pieced together from extrajudicial statements.

There is an old legal adage that "hard cases make bad law." The "carnival atmosphere" that surrounded the Sam Sheppard murder case, and the fact that the trial court judge not only did little to curb it, but in some instances facilitated it, may have led to the Supreme Court's conclusion that trial court judges must use "strong measures" to ensure that the accused receives a trial "free from outside influences." Absent the circumstances in this case, it is difficult to reconcile the Supreme Court's statements that the judge "should have at least warned the newspapers to check the accuracy of their accounts," that "reporters who wrote or broadcast prejudicial stories could have been warned as to the impropriety of publishing material not introduced in the proceedings," and that "the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom" with the freedom of the press guaranteed by the First Amendment.