Backlash for the A.B.A.

If first reactions are any guide, there is rough sledding ahead for the tough curbs on "trial by newspaper" proposed by the American Bar Association's advisory committee on fair trial and free press (TIME, Oct. 7). Its report, as summed up by Columbia Broadcasting System President Frank Stanton last week, "takes us on a walk through beautiful countryside--a countryside of delicate restraints governed by high purposes. But even a hasty examination shows signs that it may also be strewn with land mines of coercion and booby traps of suppression."

On pain of disbarment or jail for contempt, the A.B.A. proposals would forbid police, prosecutors, defense lawyers and judicial employees to make any out-of-court statement on the accused's prior criminal record or make public other information that might influence the outcome of his trial. The blackout would cover the entire period from arrest to verdict--a period that sometimes lasts for years.

Daunted Defendants. Police are aghast. "The public has a right to know how bad a criminal is," protests Boston's Commissioner Edmund L. McNamara. "The more the press blasts the serious criminal, the better we like it," says Chief Edward F. Leiss of Metuchen, N.J. "I don't think the police are giving out too much information about accused persons," adds Commissioner Russell T. Beebe of East St. Louis, Ill. "I don't think they're giving out enough." Says Houston Prosecutor Carol Vance: "The public has a right to know what's going on--crime is their concern."

Many lawyers, on the other hand, hail pretrial silence as a promising antidote to jury prejudice--and they say that the A.B.A. proposals offer no threat to freedom of the press. "Reporters might get out and do some digging instead of running over to the D.A.'s office for a handout," says Manhattan Lawyer Robert Kasanoff. The whole point is to focus trials in courtrooms rather than newspapers, declares Richmond's Lewis F. Powell Jr., former president of the A.B.A. The result would fortify the A.B.A.'s canons of ethics, which have condemned pretrial talk by lawyers since 1908. As Powell puts it: "There would not be suppression of news but merely deferment."

What U.S. editors widely fear is not so much news deferment as the probability that pretrial silence would foster the kind of "secret law enforcement" that shields lax or crooked police from public scrutiny--and actually hurts many defendants. "If these strictures are adopted," says Atlanta Constitution Editor Eugene Patterson, "I would hate to be a Negro in some Southern communities I know of."

Nothing would so delight some Southern sheriffs as "an official sanction to keep utterly silent," adds the Washington Post's Associate Editor Alfred Friendly. "It would help immeasurably to harass, if not frame and convict, a civil rights activist, and it would help a segregationist bully slide through court to an acquittal."

Most editors are convinced that jurors rarely recall pretrial publicity, since trials usually occur long after arrest. As for the trial itself, Houston's canny Criminal Lawyer Percy Foreman is all for complete trial (though not pretrial) publicity on the ground that news slanted against his client is sure to rouse jury sympathy. Foreman even favors televised trials: "The accused has a constitutional right to have the breaks on public opinion," he says. Atlanta Criminal Lawyer Pierre Howard argues that trial judges are already fully empowered to safeguard trials, for example, by granting changes of venue. "If a judge wants to give a man a fair trial, he can do it."

Muzzled Lawyers. Precisely, agrees Judge George C. Edwards of the U.S. Court of Appeals for the Sixth Circuit, who last week called the A.B.A. proposals "the most dangerous threat to American ideals of free speech and press since the days of Joe McCarthy." Edwards, who once voted to reverse Dr. Sam Sheppard's murder conviction in an opinion that foreshadowed the recent Supreme Court decision in the Sheppard case, is mainly worried that pretrial controls will leave defense lawyers "muzzled" and "prosecutions corrupted against the public interest." The real pressure, says Edwards, should be on trial judges to "make full use of the tools which legal tradition has given them to guarantee a fair trial."

Similar views were expressed last week by Judge Harold R. Medina of the U.S. Court of Appeals for the Second Circuit, who chairs the New York City bar association's fair-trial committee. In its own forthcoming report on the subject, said Medina, his committee will differ sharply with the A.B.A.'s pretrial proposals on the ground that American judges lack power to discipline police and news media until a case comes to trial. For one thing, the Constitution's separation of governmental powers limits the judicial branch in controlling police, who belong to the executive branch. For another, the First Amendment precludes "direct controls of the news media by a governmental scheme of legislation or judicial regulation." The solution, argues Medina, is for "the judicial establishment to put its own house in order."

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