Free Press & Fair Trial

During his trial on charges of swinging fellow Texans--to say nothing of assorted banks and financing companies--Billie Sol Estes objected vehemently to the presence of TV cameras in the courtroom. His objections were overruled: Estes was convicted and sentenced to eight years. In agreeing to consider his appeal last week, the Supreme Court did not concern itself with Billie Sol's guilt or innocence. The sole question before the court is whether his unwilling TV performance prejudiced his right to a fair trial.

Whatever the eventual decision it could affect more than TV's tireless insistence on sharing the newsman's right to cover trials. In accepting Estes' appeal, the Supreme Court involved it self in the kind of quarrel that has been stirred up whenever the press, in the exercise of its constitutionally guaranteed freedom, is accused of infringing a defendant's constitutionally guaranteed right to a fair trial.

The Lesson of Dallas. The longstanding controversy is picking up fresh impetus. Last week Jon O. Newman, U S Attorney for Connecticut, ordered his staff to tell reporters nothing that might prejudice a defendant's rights. "If in doubt," admonished Newman's memo keep silent." A New Jersey Supreme Court judge recently imposed a similar silence on every lawyer and policeman the state. In Rochester, NY two men awaiting trial on gambling charges won a temporary injunction against publication of their police records by a local newspaper. If such intelligence got out, they claimed, it would impair their chances for an impartial trial. After a few days, however, the court canceled the injunction.

Such actions reflect a prevalent opinion that the press is less concerned with impartial justice than with unthrottled crime coverage. It is an attitude that found support in the Warren Commission's report on the Kennedy assassination. "The promulgation of a code of professional conduct governing representatives of all news media," said the commission in summing up, "would be welcome evidence that the press had profited by the lesson of Dallas."

That newspapers often try, and frequently decide, criminal cases well in advance of judicial process is a fact that even editors do not deny. This year a convicted wife-murderer, Dr. Sam Sheppard of Cleveland, was released for retrial after ten years in prison because a federal judge agreed with Sheppard's contention that Cleveland papers had so inflamed public opinion as to destroy all possibility of cool justice.

Six years ago, Chicago papers seemed equally determined to convict a suspected killer. TERRORIST BARRY COOK ADMITS SLAYING WOMAN IN PARK ran one banner headline that was only part of a noisy press chorus demanding swift court retribution for the crime. This sort of coverage did not abate until Cook's trial jury, obviously unresponsive to newspaper suggestion, acquitted the defendant.

Legal Support. Cook's release despite the energetic newspaper campaign to have him executed, is cited by defenders of the press's habit of trying cases in print. At discussions on press freedom and fair trial, Managing Editor Robert Notson of the Portland Oregonian has repeatedly and vainly asked lawyers and judges to name one occasion on which hostile newspaper publicity helped convict an innocent man.

But newspapers are not without support in the legal profession. "My original view that pretrial publicity is generally harmful to our system of justice has withered away," said Claude R Sowle, associate dean of Northwestern University School of Law. "My basic confidence in the wisdom, effectiveness and good taste of a free press has grown considerably."

Discussions on the relative rights of a defendant and the newsman covering his trial, rarely produce such reasonable comment. "No s.o.b. judge can tell me what to put in my paper," said a Massachusetts newspaper editor, in the course of a discussion convened to frame a voluntary code for newspaper coverage court procedure. Replied the judge: "And no s.o.b. editor is going to force me into a mistrial."

House Cleaning. As far as the press is concerned, any censoring of prejudicial pretrial testimony is the court's problem. And the fact is, the police lawyers for both prosecution and defense, and judges themselves, have all betrayed a strong inclination to argue cases in the newspapers.

In 1956, when the FBI made its first arrests in the Brink's heist in Boston, Edgar Hoover's announcement, carried by both national wire services prematurely declared that "intensive investigation by the FBI for the past six years has resulted in the solution of the million dollar Brink's robbery. Of the eleven members of the gang responsible for the robbery, the FBI this morning arrested six." When word leaked to the Chicago Daily News that two of the six cops arrested for burglary in 1960 were ready to talk in exchange for lighter sentences, the paper refused at first to publish the story, even though the city's other dailies did. The News suspected that it came from defense attorneys interested in getting it printed so that they could claim a mistrial.

"I would not ask the news media to change their practices until we in the legal profession admit that our own house is in need of cleaning," says James R. Thompson, assistant state's attorney for Cook County (Chicago), Laws prohibiting prejudicial pre-trial talk by court and law-enforcement officials are already on the books in 30 states, and these statutes reflect a 50-year-old canon of the American Bar Association. But the A.B.A. has never invoked its canon.

Voluntary Codes. Whatever the Supreme Court's decision in the Billie Sol Estes appeal, the television industry has yet to demonstrate the ability to render the TV camera as unobtrusive a court visitor as the pen-and-pencil newsman And whatever view the Justices take about the big eye's right to be considered a court reporter, their ruling promises to have powerful impact on the profession of journalism, which is jealously possessive of its freedom.

In an effort to avoid outside encroachment, the press in two states Massachusetts and Oregon, has already adopted voluntary codes that circumscribe the reporting of court procedures. The Massachusetts guide, for example, which is followed by half the dailies in the state, suggests that papers refrain from printing court testimony that has been stricken from the record, pretrial confessions, and criminal records unless introduced as evidence.

But most editors and publishers still resist formal rules of procedures. "I can envision no machinery that would make possible the absolute enforcement of any code without doing violence to freedom of the press," says Managing Editor Clifton Daniel of the New York Times. His sentiment is heartily endorsed by Editor Richard W. Clarke of the New York Daily News. "As long as there's no law prohibiting the publication of court information," said Clarke, "we'll get it and we'll print it."

This file is automatically generated by a robot program, so reader's discretion is required.