Watergate Issues, 1 Is Publicity Dangerous?

The nightmare begins with a very proper prosecutor facing a panel of potential jurors. "This case grows out of the so-called Watergate affair," he is saying. "A ny of you who have read anything about the case--or heard radio or TV broadcasts about it--will be excused from the jury." The nightmare ends when no qualified U.S. citizen can be found to sit in the jury box.

Last week Archibald Cox, the special Watergate prosecutor, outlined a muted version of just that nightmare as he asked Senator Sam Ervin's select Watergate committee to postpone its sessions for perhaps three months. "The continuation of hearings," said Cox, "would create grave danger that the full facts ... will never come to light, and that many of those who are guilty of serious wrongdoing will never be brought to justice." Backed unanimously by his committee, Sam Ervin rejected "the suggestion that the Senate investigation will impede the search for truth." As he had previously observed: "It is much more important for the American people to find out the truth ... than sending one or two people to jail."

Although Cox reluctantly accepted the Ervin committee's decision, he was still trying at week's end to persuade Federal Judge John Sirica to ban the public from the hearings, or at least to ban TV and radio coverage of potential defendants like former White House Counsel John Dean. Since reporters would presumably still be admitted, the absence of TV cameras or radio microphones would hardly insulate the public from the proceedings.

Untidy Mix. As head of a Senate committee, Ervin has a constitutional right to press ahead, but his statement of the conflict between "the truth" and "sending one or two people to jail" seemed to concede Cox's point that the hearings might impair future legal proceedings. A concurring opinion came from Massachusetts Judge Paul Reardon, who drafted the A.B.A.'s free press-fair trial guidelines: "The Sixth Amendment, which guarantees the accused the right to a speedy public trial by an impartial jury, is going down the drain in this affair."

To the distant, raised eye of the London Times, the untidy mix of prosecutors, press and Congress seemed almost to amount to "a lynching" of the President. A Times editorial scored Ervin's committee for publicizing hearsay, the Watergate grand jury for considering prejudicial evidence, and the newspapers (especially the New York Times and the Washington Post) for publishing leaks. It complained that much out of-court evidence, like that being offered by John Dean, was "not given under oath, not open to crossexamination" and is thus of a quality that "could hardly be less satisfactory. Yet on this evidence could well be based public conclusions which could destroy the President." While conceding the importance of the earlier investigative work by Washington reporters, the Times wondered how Congress and the press now could "defend themselves from the very charge that they are bringing against the President, the charge of ... interfering with the course of justice."

The editorial raised some troubling questions. There can hardly be any argument that the committee's inquiry, leaks to the press and the granting of immunity to some witnesses will complicate any later prosecution. But the editorial was written essentially from a British legal point of view and reflects the strict rules limiting British press coverage of court proceedings. U.S. courts have generally been able to limit grand jury leaks by imposing stiff restrictions on prosecutors, witnesses and other potential leakers. If, over Watergate, there has been too much disclosure, that is partly because the implicated men and their lawyers are struggling through a case of unprecedented nature, partly because prosecutors now may want to avoid any appearance of a coverup. Moreover, the First Amendment has made the U.S. press as uncontrollable as it is robust. "The hearings may not make Cox's job any easier," says Georgetown University Law Center Dean Adrian Fisher, "but it is a situation he can live with."

What of the contention that no convictions will stand because no fair jury can be empaneled? The obvious precedent is the case of Dr. Sam Sheppard, who was convicted in 1954 of murdering his wife, only to be set free twelve years later by the U.S. Supreme Court because of the "carnival atmosphere" created by the press. Justice Tom Clark nonetheless put the legal blame on the judge's "failure to protect Sheppard sufficiently from prejudicial publicity." He had not sequestered the jurors nor "proscribed extrajudicial statements by any lawyer, party, witness or court official." The defendant was convicted in the press while his trial was still in progress, and the jury was apparently well aware of what was being printed.

Unfair Trial. A jury ignorant of Watergate would be as undesirable as it would be impossible to find. Indeed the traditional concept of a jury without prior knowledge of a major case is rather anachronistic in the era of mass communications. What is important is the maintenance of objectivity in the courtroom. Trials of famous defendants have, after all, been managed before. One constitutional law expert remembers, not without irony, that the perjury conviction of Alger Hiss survived despite claims that earlier congressional hearings had prejudiced the case. (Congressman Richard Nixon, of course, felt that the hearings were both necessary and nonprejudicial.) Since Sam Sheppard, defendants as celebrated as Jimmy Hoffa or Jack Ruby, whose murder of Lee Harvey Oswald was committed on television, have been convicted without any appeals court finding that the trial was unfair.

To be sure, "prejudicial pretrial information does plant a seed," says Columbia University Sociologist Alice Padawer-Singer, who with fellow Sociologist Allen Barton recently studied nearly 500 jurors. But such difficulty can be overcome by searching out an open-minded jury, rather than an ignorant one, and by appropriate instructions from the judge. "A fair trial in a highly publicized case," Barton observes, "depends upon how well indoctrinated jurors are in their role of concentrating on the evidence and ignoring what they have heard outside." He recalls that in several Black Panther trials, jurors specifically said they considered only the evidence presented. "If the Panthers can get this kind of jury," Barton asks, "who's to say Watergate defendants couldn't?"

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