Saturday, January 30, 2010

I've Looked at Trials from Both Sides Now

In a college philosophy course, I once wrote a paper called something like "The Categorical Imperative meets the Teleological Suspension of the Ethical." The idea is that sometimes absolutes conflict. My resolution, as I recall (this was decades ago) was built around Coleridge's recognition that some literature requires and evokes a "willing suspension of disbelief."*

All of this is by way of introduction to a knotty problem in Constitutional Law working its way out, at the moment, in the Ohio courts. I should add that, as the title of this post suggests, I have been, professionally, on both sides of the issue.

So here's the thing.

Part One

The Sixth Amendment says, in part,
[T]he accused shall enjoy the right to a speedy and public trial.
The First Amendment, of course, guarantees a free press.

Back in 1947, in Craig v. Harney, the Supreme Court explained.
A trial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose none would claim that the judge could punish the publisher for contempt. And we can see no difference though the conduct of the attorneys, of the jury, or even of the judge himself, may have reflected on the court. Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.
So you can't keep the press out of a trial, and you can't prevent the press from reporting on what happens at a trial. That's settled law.

And, more broadly, you can't tell the press what they can't publish. That's a prior restraint and except for, say, reporting on troop movements in time of war, it's forbidden (see, for instance, New York Times Co. v. United States).

Part Two

Trials aren't supposed to be circuses, but the press can turn them into just that. Forget OJ. Take a look at the Sam Sheppard case (which inspired The Fugitive).

Sheppard was tried for the murder of his wife amid what the Supreme Court described (and spelled out in detail) as a "carnival atmosphere" where "bedlam reigned."
The fact is that bedlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Sheppard. At a temporary table within a few feet of the jury box and counsel table sat some 20 reporters staring at Sheppard and taking notes. The erection of a press table for reporters inside the bar is unprecedented. The bar of the court is reserved for counsel, providing them a safe place in which to keep papers and exhibits, and to confer privately with client and co-counsel. It is designed to protect the witness and the jury from any distractions, intrusions or influences, and to permit bench discussions of the judge's rulings away from the hearing of the public and the jury. Having assigned almost all of the available seats in the courtroom to the news media the judge lost his ability to supervise that environment. The movement of the reporters in and out of the courtroom caused frequent confusion and disruption of the trial. And the record reveals constant commotion within the bar. Moreover, the judge gave the throng of newsmen gathered in the corridors of the courthouse absolute free rein. Participants in the trial, including the jury, were forced to run a gantlet of reporters and photographers each time they entered or left the courtroom.
The effect, the Court concluded, was that Sheppard was denied his right to a fair trial.

Part Three

There's the core conflict. The press has a right to report, but the defendant has a right to a fair trial. And what the press does can interfere with that right.

In its decision in Sheppard, the Court took the trial judge to task for not controlling his courtroom.
The carnival atmosphere at trial could easily have been avoided since the courtroom and courthouse premises are subject to the control of the court. As we stressed in Estes, the presence of the press at judicial proceedings must be limited when it is apparent that the accused might otherwise be prejudiced or disadvantaged. Bearing in mind the massive pretrial publicity, the judge should have adopted stricter rules governing the use of the courtroom by newsmen, as Sheppard's counsel requested. The number of reporters in the courtroom itself could have been limited at the first sign that their presence would disrupt the trial. They certainly should not have been placed inside the bar. Furthermore, the judge should have more closely regulated the conduct of newsmen in the courtroom. For instance, the judge belatedly asked them not to handle and photograph trial exhibits lying on the counsel table during recesses.

Secondly, the court should have insulated the witnesses. All of the newspapers and radio stations apparently interviewed prospective witnesses at will, and in many instances disclosed their testimony. A typical example was the publication of numerous statements by Susan Hayes, before her appearance in court, regarding her love affair with Sheppard. Although the witnesses were barred from the courtroom during the trial the full verbatim testimony was available to them in the press. This completely nullified the judge's imposition of the rule.

Thirdly, the 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. That the judge was aware of his responsibility in this respect may be seen from his warning to Steve Sheppard, the accused's brother, who had apparently made public statements in an attempt to discredit testimony for the prosecution. . . .
(I removed footnotes and citations.)

Ultimately, it's the court's job to figure out a way to accomodate the press but protect the right to fair trial. And there are ways to do it.
From the cases coming here we note that unfair and prejudicial news comment on pending trials has become increasingly prevalent. Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances. Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sua sponte with counsel. If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function.
That's all nice in theory. What about practice?

Practice is Henry County, Ohio.

Part Four

Henry County is where Jayme Schwenkmeyer and David Knepley face trial on involuntary manslaughter and child endangerment. They're to be tried separately in the small county courthouse. All that's simple enough. It got messy, though, when the judge, Keith P. Muehlfeld, tried to figure out a way to avoid having the publicity from the first trial taint the second jury.

What he came up with is a plan to gag the press. It can cover the first trial, he said, but it can't report on it until after the jury is selected for the second trial.
IT IS ORDERED, ADJUDGED AND DECREED that members of the print and broadcast media shall be permitted access to the tirial proceedings in Case number 08CR0033, State v. Schwenkmeyer pursuant to Superintendence Rule 12, HOWEVER, any and all print or broadcast media shall be PROHIBITED from the published or broadcast reporting of such trial proceedings until a jury is impaneled for the trial in State v. Knepley.

IT IS FURTHER ORDERED that all those persons including attorneys, the parties, representatives or witnesses intended to be called by the parties or any other persons participating in or associated with Case number 08CR0033, State v. Schwenkmeyer or State v. Knepley shall be prohibited from making any extrajudicial statements to the print or broadcast media or otherwise which would have a substantial likelihood of prejudicing the trial proceedings in either case.
That's a prior restraint, and like I said, it's forbidden.

So what to do? The judge says he has no other way to secure a fair trial for Kneply, and that's clearly his obligation. But he's also obliged to accomodate the press. So far, he's refused to bend.

Wednesday of last week, with the trial due to begin Monday, the Toledo Blade took the judge to the Ohio Supreme Court, laying out the facts and the law and asking for an order directing the judge to let the press do its job. Thursday, the court issued a temporary stay of the order until it could fully review the case - in a couple of months. Friday, Judge Muehlfeld delayed both trials until after the supreme court tells him what to do.

Part Five

There are, of course, things the judge can do. Here are a few.
  • He can hold the trials together, with two juries that get shuffled in and out of the courtroom when things that one or another can't hear get said. It's clumsy, but it's been done plenty of times.
  • He can move one (or both) of the trials to another county where there won't be pervasive publicity.
  • He can get a visiting judge to hear one case while he hears another and do the trials separately but simultaneously.
  • He can impanel the two juries and forcefully admonish the one for the second trial - better still, sequester it - so that it won't be tainted.
None of these is ideal. That's the problem when rights bump into each other. But the Constitution is the Constitution.

Both defendants have an absolute, overriding right to trials with juries untainted by prejudicial publicity. As a practical matter, that's may be impossible to achieve, and the proper result then would be to dismiss the charges. But the charges won't be dismissed over it, and some accomodation is necessary.

The media have an absolute, overriding right to report the news - including the news of the trial, which Muehlfeld's order makes (ironically) particularly newsworthy. They can be somewhat reined in, but they can't be restrained.

Part VI - The Conclusion

But see, here's the thing. What we've been looking at is built on the assumption that Constitutional rights are equal. That's what leads to the Categorical Imperative idea that you must always obey all of them. The reality is that you can't - and probably shouldn't.

If Abraham's obligation not to kill Isaac were as great as his duty to do whatever his god told him, he'd have been in a literally impossible situation where his obligation would have been to both kill Isaac and not kill him. Not an option. Abraham chose. Kierkegaard justifies the choice by concluding that Abraham's duty to his god was greater than his duty to his son. Right or wrong (and Biblically, at least, that seems right), it's a solution.

The conflict in Henry County is less stark, certainly. In theory, at least, an unrestrained press need not conflict with a fair trial. But the reality is that it can. And none of the alternatives fully solves the problem.

It's understandable, of course, that the Blade favors a solution that elevates the First Amendment. It's far from clear that's the right solution, though. In fact, if you think of what Judge Muehlfeld cooked up not as a prior restraint but, rather, a time/place/manner restriction, it's clearly permissible. The judge isn't prohibiting the media from attending the first trial or from reporting on it. He's just restricting when they can speak to a time when it will not interfere with another fundamental right: The right to a fair trial.

Good for him.

*The "Categorical Imperative" is Immanuel Kant's description of absolute, a priori moral duty as determined through reason as set forth in The Groundwork for the Metaphysics of Morals and other works. The "Teleological Suspension of the Ethical" is Søren Kierkegaard's explanation, from Fear and Trembling, of how Abraham could be willing to sacrifice Isaac and how that could be a morally acceptable thing to do. The term, "willing suspension of disbelief," is from Chapter IV of the Biographia Literaria where Coleridge explains how he and Wordsworth came to write Lyrical Ballads.
In this idea originated the plan of the 'Lyrical Ballads'; in which it was agreed, that my endeavours should be directed to persons and characters supernatural, or at least romantic, yet so as to transfer from our inward nature a human interest and a semblance of truth sufficient to procure for these shadows of imagination that willing suspension of disbelief for the moment, which constitutes poetic faith.
Wordsworth, Coleridge said, would take a different approach.


  1. We have this very problem going on right now in two capital trials.

    Jury selection in the first is underway and the second is scheduled to start a year from now.

    It's a right old mess.

  2. It's an absolute mess. But given the publicity of that case in Connecticut, I don't know how you find twelve sentient jurors who aren't already tainted.

    I suppose the courts would end up saying that the year between trials is enough for the taint to have dissipated before the second trial. On the other hand, it's way too long for a gag order like the one the judge put together here to have much chance of withstanding judicial scrutiny.

    Hey, I have an idea: Drop the death penalty and just try the two guys.

  3. i feel sorroy for the judge but he's an idiot. As only an idiot or a politician would think the rights of the press would override the rights of an AMERICAN CITIZEN.

    sorry that's a no-brainer.