By Melissa Wells
The First Amendment has protected the right to speech and the people’s right to the press. The Sixth Amendment guarantees all Americans to a due process; a speedy public trial by an impartial jury. But there are many times when fair trials and the freedom of the press have clashed. It hasn’t ended well.
My hope is that when Allen Warner is put on trial, it is a judge and jury who indicts him, not the public and the media.
The gruesome details The Boston Globe has published about Shana Warner’s murder are enough to drive Marshfield into a frenzy — just as it turned Cleveland upside down in the 1950s over the Sam Sheppard case.
Sheppard is the prime example of how the media’s influence through pretrial publicity can result in actual harm and worse yet, demonstrates the factor the press can play in allowing our criminal justice system to go awry.
The killing of Sheppard’s wife, Marilyn Sheppard, remains unsolved because of the controversial and prolonged coverage on her husband charged with her murder — and still ostracized even after his exoneration in 1966 and until his death in 1970.
Overwhelming forensic evidence proved Sheppard’s innocence, but Judge Blythin’s choice to keep the press in the courtroom sealed Sheppard’s fate. In many ways, the media played judge, jury and nearly executioner.
I am a firm believer of “innocent until proven guilty.” Warner’s defense has every right to ask the judge to gag the media from reporting on details of how this crime was committed, at least until after a jury is chosen.
However, that doesn’t mean the judge should issue this order. Landmark rulings have helped prevent the Lindberghs and Sheppards of today, but that doesn’t mean that it’s easy to keep the press at the margins of anything.
The backlash of the Sheppard case would give way to a rise in gag orders and restrictions on on the media. But in 1976, Nebraska Press Association v. Stuart established limits on the use of gag orders, after which they were ruled unconstitutional.
Two years later, Judge DePasquale granted pretrial motions to exclude the public and press from trial following the murder of an off-duty police officer. A later Supreme Court decision would leave it to a judge’s discretion to decide whether or not the defendant’s right to a fair trial outweighed the right of the press to cover it.
In 1980, Richmond Newspapers Inc. v. Virginia established that the Sixth Amendment right to a public trial does not belong to the defendant alone. Criminal trials are presumptively open because the First Amendment prohibits closing them without a full exploration of alternatives.
But it was a pair of cases involving the Press-Enterprise newspaper in my hometown of Riverside County, California that are most important to reflect on. In the first case in 1984, jury selection was deemed open to the public in almost all cases, except in instances where no reasonable alternative arises or that the defendant’s right to a fair trial is in jeopardy. In Press-Enterprise II, Justice Burger established that if pretrial hearings looked like a trial, they could be treated as one and be open to the public.
The precedents set by these cases would establish a test for gag orders. It contains three parts: pretrial publicity must be both extensive and widespread, there are no alternative measures to neutralize the effects of that publicity and a gag order would thus, protect the defendant’s right to a free trial.
The most important requirement is when no other measures can be taken to offset the influence publicity may have. Examples include postponing the trial until the media frenzy blows over, change of venue to where there is less publicity, intensive questioning of prospective jurors concerning their ability to remain impartial, jury admonitions and sequestrations, in the most extreme and rare cases and only during deliberations.
Pretrial publicity has been extensive, but I don’t believe Warren has enough legal standing to get the gag order his defense requests. At most, one or more alternative measures may be taken to combat the publicity of the trial. More than 50 years separate the Sheppard and Warner cases, despite details that feel just too similar.
The difference, however, is that the law has evolved with the modernization of both the press and how we execute trials within the criminal justice system. Perhaps a larger conversation can be had about pretrial publicity and the role of the press, but when Warner goes to trial — legal precedents in place should ensure that an impartial group of his peers deliberate his innocence.