PRETRJM umm PUBLICITY
IN CRIMINAL WNGS:
A CASE STUDY

THESIS FOR THE DEGREE OF M. A.

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ABSTRACT

PRETRIAL NEWSPAPER PUBLICITY
IN CRIMINAL PBOCEJDINGS:
A CASE STUDY

By Don 3. Pember

The purposes of this study were to: 1) evaluate the
most frequently suggested "remedies" for the alleged prob—
lems caused by pretrial newspaper publicity in criminal
cases, and 2) to make an intense examination of a single
case in which a defendant challenged a conviction on the
grounds that pretrial publicity had prejudiced the jury.

The single case chosen began in the autumn of 1963 in
Oakland County, Michigan, and lasted for nearly two years.
Twenty-one defendants were charged with the violation of
Michigan gambling laws. At least three of the defendants
were linked by the press with the reputed international
crime syndicate, the mafia.

In the initial portions of the thesis the author at-
tempted to place his study into the perspective of the lar-
ger free press--fair trial problem by presenting a short ex-
Planation of the controversy set against the background of

' o ' e ex aetion of the
current writings on the topic. A bri f plaiat

British remedy was included as well as a short history of

' 4' o o r‘ TI
the use of the contempt power in United States' federal and

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non n. Penaar

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,r I ' ‘ ‘- 3 ‘ I
ae arrests. host interView-

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2h hours immediately fellowing

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as news sourc. ra her than the press for the

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publication of prejudicial news.

The change of venue, the actual remedy applied in the
case, did not have the desired results, as publicity of the
case preceded the trial to the new site following the change
of venue. Of the other remedies (assuming they would have
been in effect in Oakland County at the time of the arrests)
the only one which showed major positive results and minimum
negative consequences was the Katzenbaoh Justice Department
ruling which sets specific guidelines for the type of infor-
mation which can and cannot be released by the arresting of-

ficers and the prosecutor, but places no prohibitions against

the press or tie defendant.

PHETRIAL NEWSPAPER PUBLICITY
IN CRIMINAL PROCEEDINGS:

A CASE STUDY

BY

Don R. Pember

A THESIS

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF ARTS

School of Journalism

1966

PREFACE

The problem which results from the supposed collision
of two fundamental precepts of American democracy, the right
of a free press to publish all the news and the right of an
accused individual to a fair and impartial trial, is great

in SCOpe. The difficulties in studying this so-called col-

lision are numerous. In even a study limited to a single

aspect of the controversy the doors of many areas are opened.
But for lack of time these thresholds cannot be crossed.

This study is devoted to one particular criminal case
which received extensive publicity before the trial began.
The research for this paper was stOpped on September 1, 1966.
Chapters I and II of this report are devoted to an explana-
tion of the problem of pretrial publicity. In Chapter III

a detailed account of the publicity given a single criminal

case is presented. Also in this chapter an attempt will be

made to show how the remedy selected to neutralize the ef-

fects of the pretrial publicity did not work and an explana-

tion of the failure will be offered. Chapter IV is devoted

to a series of Open-ended interviews conducted in the area

in which the case occurred. The interviewees were Judges,

lawyers, newsmen and police officers. In Chapter V an at-

tempt will be made to determine the effectiveness of several

prOposed solutions to the pretrial publicity problem.

11

iii
Finally, in an epilogue this author will briefly present
his views on an aSpect of the problem not fully explored in

the body of this thesis.
Much more research is needed on the effect of publicity

on the minds of the potential juror. At this time the an-

swers to this question often conflict with each other and
are really only educated guesses. Evidence to support the
belief that publicity can prejudice a juror to the extent
that he cannot be impartial, or evidence which would refute
this belief is the key to ending the controversy over the

effects of and solutions to the pretrial publicity problem.

.‘lh—fi—_ 6- -:-' - u—n»

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TABLE OF CONTENTS

Page

0 O O O O O 0 ii

PREFACE O O O O O O O O O O O O O O O O 0

Chapter

II. THE BRITISH SOLUTION--CONTENPT OF COURT . . . . 29

III. THE STEREN ASSEMBLY CLUB CASE . . . . . . . . . 42
IV. PRETRIAL PUBLICITY IN ONE COUNTY-oTHE STEREN

CASE IN RETROSPECT . . . . . . . . . . . . . 2

104

V. PROPOSED SOLUTIONS AND CONCLUSIONS . . . . . .

VI. EPILOGUE . . . . . . . . . . . . .

BIBLIOGRAPI‘IY O O O O O O O O O O O O O O

APPENDICES

Appendix

A STATEMENT OF POLICY CONCERNING THE RE EASE

OF INFORMATION BY PERSONNEL OF THE DE-

PARTMENT OF JUSTICE RELATING TO CRIMINAL

PROCEEDINGS o o o o o a o o o o o o o

B NASSACHUSE TS GUIDE FOR THE BAR AND NEWS

I'IEDIA o o o o o o o o o o o o o o o o

C STATEMENT OF PRINCIPLES OF THE BENCH-BAR-
PRESS OF THE STATE OF WASHINGTON . . .

. 130

. 131+

CHAPTER I
THE FREE-PRESS-—FAIR TRIAL DILEMMA

An island in the Western Pacific was swept by ter-
rible storms every ten or fifteen years. The storm would
send the ocean completely over the island and wipe out
most of its village and most of its population. After
that had happened for centuries, the natives built a sea-
wall which was effective. It kept them from disaster.
But the wall was so successful that it wasn't long before
the peOple who had built it more or less forgot about the
devastation that the storms had wrought and when they
died, their sons only knew about it from hearsay and al-
though they remembered it, they didn't really have any
visual recollection of what it was like. And when the
second generation died, the succeeding generation had
forgotten all about the former suffering. And after
them, the next generation didn't even know why the wall
had been built--and they began to take it down to use the
stones for buildings.1

The guarantee of a free press in the United States is
clearly defined in the First Amendment to the U. S. Consti-
tution. AdOpted in 1791, the amendment clearly stipulates
that "Congress shall make no law . . . abridging the free-
dom of speech or of the press; . . . ."

Since 1791 the language of this constitutional decr

(D

has not changed. Court interpretation has varied its appli-
cation. Qualifications of its meaning have been added and
taken away. But the principle of a free press has stood

fast for 175 years.

 

*-

1Suggested by remarks made by R. B. McConnell from the
record of the Judicial Conference for the Third Circuit,
Philadelphia, Pa., September, 1964.

l

3

The press itself, however, has changed. It is un-
likely that even the most farsighted colonial statesman en-
visioned the era of instant mass communication in which we
now live. There is a serious concern in the minds of many
persons that media technology has outmoded this constitu- _
tional guarantee, that more control of the press is needed. _.}f

While this prOposal has come from many circles, none.l’fg
has been more vocal than segments of the legal profession,”
who accuse the press of undermining the rights of defendants
in criminal cases by publicizing these cases prior to trial,
thus influencing potential jurors. The right to a fair and
impartial trial is guaranteed in the Sixth Amendment to the
U. S. Constitution. By publishing pretrial information the
press is said to be disrupting the finely-balanced judicial
process.

This is not a new charge against the press. It is one
which has been consistently made, but receives a full-
volume of publicity only after a major event during which
irresponsibility by the press is subjected to national
scrutiny. The most recent wave of criticism has its roots

in Dallas in November of 1963 when President John Kennedy

was shot and killed by Lee Oswald. In the report prepared

by the Presidential Commission which investigated the as-

sassination the press wag criticized. "The Commission be-
lieves, however, that a part of the responsibility for the
unfortunate circumstances following the President's death

must be borne by the news media," the official commission

j

2 Commission members added that newsman showed

report said.
a regrettable lack of self-discipline, and that a code of
professional conduct would be welcome evidence that the
press was sincere in its affirmation of the need for a bal-
lance between the right of the public to be kept informed
and the right of the individual to a fair and impartial
trial.

The response by the legal profession was immediate.
Scores of articles began to appear in law journals. Panel
discussions were held and the debate reached a peak not
seen since the Lindbergh kidnapping case in the 1930's when
the press was severely censured for the coverage of the tri-
al of accused kidnapper, Bruno Hauptmann. Press response
was less enthusiastic. rational and state press organiza—
tions and societies did meet for discussion of the problem.
Studies resulted from the meetings, but there was often
lack of agreement in even the definition of the problem.

In order to understand the problem of pretrial public-
ity several questions must first be answered. What type of
publicity is referred to when the press is accused of un-
dermining the rights of a defendant? A complete list of
examples would include: (1) publicity demanding the arrest
Of a suspect before police have gathered sufficient evi-
dence, (2) printing a confession which is not intr duced

into evidence or which is later determined to have bee

2Report of the Pres1dentfls Commission on the Assassi-
Qgtion of President John F. Kennedy, (Washington: U. S.
covernment Printing Office, 1965), p. 241.

k

involuntarily given or to even allude to such a confession,
(3) printing denunciatory interviews with the victim's fam—
ily, (A) interviewing the public before trial on the quesag,”
tions of guilt or innocence and possible punishment, (5)
exposing a defendant's prior criminal record either before
or during the trial, (6) printing inflammatory evidence
which the court would not allow to be introduced, (7) link—
ing the defendant with other crimes or portraying him as a
”hoodlum" or "gangster", and (8) printing the personal
feelings of the prosecutor, police or other trial partici-
pants.3

Newspapers have also been criticized for running a pic-
ture of a defendant if his identity will be a question at
the trial. Host press critics would limit news coverage to
a description of the crime committed, the fact of the ar-
rest, the fact of the arraignment or indictment and then a
fair and accurate report of the trial proceedings.4 It is
also suggested that newspapers refrain from making any com—
ment or speculation on the pending case. Since this report
is concerned primarily with pretrial newspaper publicity,
the matter of defining a ”pending" case won't be consid-
ered. It is sufficient to note that some critics have sug-

gested that the press remain silent until the final

 

3"The Case Against Trial by Newspaper," Publishing,

Entertainment, Advertising and Allied Fields Law Quarterly,

”w. Thad Cochran, "Pretrial Publicity as Denial of Due

gggcess," Mississippi Law Journal, Vol. 36 (May, 1965),

 

5

In the case of the murder trial

5

disposition of the case.
in Cleveland, Ohio, of Dr. Sam Sheppard, the final disposi-
tion has not yet occurred, though the first trial began in
1954.

Another question which should be considered after dis-
cussing type of news which newspapers are being asked to
refrain from using concerns effect. Does this type of pub-
licity really have such a prejudicial effect on a juror
that he or she would be unable to make a decision solely on
the evidence presented in court?

The answer from press critics is yes. The answer from
most newsmen is no. Actually, neither side can say for cer-
tain. The facts are not known. There have been very few
studies on this question. "One of the problems facing a
researcher trying to experimentally investigate the inter—
active processes that take place in a jury, is the inabil-
ity to use other than mock juries," researchers reported.6
A 1953 study by the University of Chicago, which did not
concern itself with pretrial publicity but attempted to

discern at what point a juror made up his mind during a

 

SIbid.

6F. Gerald Kline and Paul H. Jess, The Effect of Prej—
udicial Publicitr on Mock Juries at the University of Min-
nesota Law SchooI, excerpts—from a paper presented at Asso-
ciation of Education in Journalism Convention, Syracuse,
N. Y., August, 1965, quoted in U. S. Congress, Senate, Sub-
committee on Constitutional Rights and Subcommittee on Im-
provements in Judicial Machinery of the Committee on the
Judiciary, Hearings on S. 290, Free Press and Fair Trial,
89th Cong., lst Sess., 1965, p. 759.

 

6

trial resulted in sharp disapproval from the press. "One
of the consequences_of the Chicago project was an outburst
of criticism by the news media and the Congress in late
1955," a researcher said.7

Other law researchers have attempted to answer the
question without a jury study, by merely applying basic psy-
chological dogma. In one study it was determined that pre-
trial publicity had a definite effect on the mind of a juror
and in many cases this effect was unknown to the juror.8
This determination was made by proceeding through a series
of known psychological principles. Briefly, the argument
followed this line. It is common for a prospective juror
to be exposed to a pretrial publication which relates many
facts about the crime and the defendant. An event which
disturbs the social order (such as a crime) will breed in-
stinctive hostility for the person who committed or who is
believed to have committed the disturbance. The first im—
pression that an individual has about the character of an-
other person, if the impression refers to a central dimen-
sion of personality, will tend to form a belief which re-
fuses to yield or change, even when facts which contradict
this opinion are presented. This is because a man tends to

form a belief once he is exposed to a minimum of factual

 

7Ibid.

 

8Terrence P. Goggin and George M. Hanover, "Fair Trial
v. Free Press: The Psychological Effect of Pre Trial Pub-
licity on the Juror's Ability to Be Impartial; A Plea for
Reform,“ Southern California Law Review, Vol. 38 (1965),
673-68u.

7

information and tends to unconsciously exclude or distort

facts contrary to this belief. A juror might, therefore,

not carefully consider what is said in court if it is con-
trary to an established belief and at the same time might

be unaware of this partiality. The psychologists add that
even if a person was willing to make an admission of par-

tiality the effect of a belief and even the belief itself

is normally subconscious, unrecognizable to the potential

juror.

Another researcher disagrees, and points out that
there is too little research on communication effects to
provide the information for an understanding of the sub-
ject.9 He accepts the psychological principle regarding
beliefs presented previously, but challenges the idea that
mass communication can have enough impact to create the in-
itial belief. He notes a study done in Cincinnati following
a six—month campaign to acquaint the city residents with the
United Nations. Only two per cent changed their ideas, the
author noted.10

The Supreme Court has had its own test of whether pre-
trial information clouds a jurcr's mind. But the test has
changed over the years and is still changing. In 1807 in
the trial of Aaron Burr, Chief Justice John Marshall pro-
claimed that an impartial Juror was one free from the dom-

inant influence of knowledge acquired outside the courtroom,

 

9Charles B. Wright, Mass Communication: A Sociologi-
. 9Q; Perspective (New York: Random House, 1959), p. 91.

loIbid., p. 104.

8
free from the "strong" and "deep impressions" which close
the mind.11 However, a juror could have light impressions,
ones which were capable of yielding to the evidence. In
1878 the court again ruled on the impartiality of jurors

12 The

and generally reaffirmed the Marshall doctrine.
court said a "partial" juror is not necessarily one who has
formed an opinion, because everyone will have some impres-
sion in his mind. More important than this, though, was
the court ruling that when an appeal is made on the grounds
that the jury was prejudiced, the defendant must prove to
the appellate court the actual existence of a preconceived
opinion in the mind of a juror, an Opinion strong enough to
raise the presumption of partiality.

Prior to 1961 the Supreme Court had never reversed a
conviction on the ground that a defendant had been denied
an impartial trial by reason of prejudicial publicity. In
1961, however, the court modified its impartiality standard
and reversed the conviction of Leslie Irvin who had been
tried on a charge of murder.13 Irvin was arrested near
Evansville, Indiana, in 1955 after six murders had been
committed in the area. After Irvin's arrest, but before he
was indicted, the prosecutor issued a statement that Irvin
had confessed to all six murders. The statement was

printed in papers throughout Indiana. When the trial began,

 

11H. s. v. Aaron Burr, 8 U. S. (4 Cranch) 455 (1907)-

12W v. U. s., 98 U. s. 145 (1878).
13m v. mg, 366 U. s. 717 (1961).

9
Irvin's attorney asked for a change of venue. The trial
judge gr ante d the motion, but the trial was moved only to
the adjacent county. A motion for another change of venue
was denied. Publicity about the case continued to Spread
throughout the community.

Of nearly 400 persons called for jury duty, 90 per cent
expressed an Opinion that the defendant was guilty. Of 12
jurors finally selected, eight stated similar Opinions, al-
though they all declared that they could lay aside their
Opinions and judge the accused on the evidence presented in
the courtroom.14

The court agreed that the mere existence Of any pre-
conceived notion of the guilt or innocence of an accused
sufficient to rebut the presumption of a prospective ju-
ror's partiality would be an impossible standard. The key
issue, it said, was whether the juror can lay aside his im-
pression or opinion and render a verdict based on the evi-
dence presented in court.15 But, "where so many, so many
times, admitted prejudice, such a statement of impartiality
can be given little weight.”16

In 1962 the court limited the Irvin decision somewhat

in Beck v. Washington17 when it upheld David Beck's

 

1L'"'The Changing Approach to Trial by Newspaper," Pub-
lishing, Entertainment, Advertising and Allied Field Law
anrterly,v (June 1965). 155:

15Irvin v. Dowd, 723.
léIbid., 728.

17369 U. s. 541 (1962).

lO

conviction. The court said that in the Irvin case 90 per
cent of the jurors were prejudiced. In the Beck case, the
court noted that the proportion of prejudiced jurors was
less than 90 per cent. In 1963 it denied certiorari in
Gaegin v. galig.18 The lower court had said the publicity
did not arouse feelings of rage and vengeance as in the
Irvin case, only 72 per cent rather than 90 per cent of the
potential jurors admitted preconceived opinions, and only
two rather than eight of the jurors selected admitted pre-
conceived opinions.19

A case with perhaps even greater potential consequences
was Bideau v. Louisiana.20 A filmed interview of the de-
fendant, Wilbert Bideau, confessing to a sheriff that he
had robbed a bank and killed two employees was televised on
three separate instances. This interview was viewed by
many citizens in the small community; three members of the
jury which convicted Bideau admitted seeing it. Without
any extensive examination of the voir dire (the examination
by the court of all potential jurors to determine if they
have preconceived notions on the case) the court concluded

that the pretrial publicity was so overwhelming that the

confession had amounted to a trial and the conviction was

 

reversed.21 This was only the second time the court had
18292 F2d 244 (lst Cir 1961), cert den, 370 U. S. 903
(1963).
19Ibid., 247. 20373 U. S. 723 (1963).
21

Ibid., 727.

11
reversed a conviction solely on the grounds of prejudicial
pretrial publicity.

More recently the court reversed the conviction of Dr.
Samuel Sheppard, but this case will be discussed later in
the chapter in connection with trial-level remedies avail-
able tO neutralize the effects Of pretrial publicity.

The cases cited have all been state cases in which the
court had exercised its right to guarantee due process of
law to every citizen. In federal courts where the Supreme
Court exercises direct supervisory power, a 1959 case offers
an interesting precedent. In Marshall v. United States22
the court reversed the conviction of a defendant because
during the trial the jury had read in a newspaper material
which had previously been ruled inadmissable. There was no
sensational publicity in the case and the newspaper accounts
were published after the trial began. Yet the precedent is
clear and, as one observer points out, offers a defendant
in a federal prosecution greater protection from prejudicial
publicity than a defendant in a state court under the stand-
ard of the due process clause of the fourteenth amendment.
"When a defendant is prosecuted in a federal court, he will
only have to prove that the jurors had read material which
would have been excluded as evidence because of its preju-
dicial nature. He will not have to show that the jurors

were, in fact, prejudiced by the information," it was

 

22360 U. s. 310 (1959).

noted.23

It can be seen that the Supreme Court has a changing
viewpoint on the possible effects of pretrial publicity and
the definition of an impartial juror. The court places more
.faith in the ability of the American juror than does the psy-
chological community which pictures the typical juror as a
virtual prisoner of his subconscious.

Thus, the problem has been outlined. The type of pub—
licity which is usually identified as prejudicial has been
listed and the possible effect on the mind of the juror has
been noted. Now it is time to consider the solutions or
remedies for the problem. Some remedies have been built
into the American judicial system. Others are currently
available as the result of action by private organizations,
such as the American Bar Association. Still others have
been proposed by legislators, attorneys, judges and newsmen.

The effectiveness of the "built-in" remedies is ques-
ftionable. After a survey of a large portion Of the litera-
ture in the field and numerous interviews this author con-
cludes that the press and many judges are satisfied with the
so-called trial-level solutions. Many lawyers, however,
indicate that the trial-level remedies are not adequate.

The trial-level remedies most commonly considered are:
1. Change of venue, moving the trial to a distant area.
2. Continuance, postponing the trial.

3. Voir dire, examination of potential jurors.if
9. Sequestration, isolation of the jury.

 

23"The Cdanging Approach to Trial by Newspaper," sudra
note In, 161,

13

5. Blue ribbon jury.
6. Contempt of court.

Change of venue is the most common trial-level remedy
used to neutralize the effects of publicity before a trial.
When a change of venue is granted the site of the trial is
moved, sometimes just to the next county, as in the Irvin
case. More often the trial is moved a great distance away,
across an entire state if possible. But there is no guar—
antee that bad publicity will not precede the arrival of the
trial at the new site. If the trial is moved from city A to
city B, what was at one time only a state story for the news-
paper in city B now becomes a local story, and worthy of
much more news space. In addition, the accused must waive
one of his constitutional rights--to be tried in the commun-
ity where the crime occurred--in order to move the trial.
Because of this, the failure of the defendant to move for a
change of venue does not mean that subsequent Opportunities
to protest pretrial publicity are waived. It has been es—
tablished in federal court that "The right to apply for a
change of venue is given for the defendant's benefit . . . .
He is not obliged to forego his constitutional right to an
impartial trial in the district where the Offense is alleg-
edly committed."2u

Another remedy is a continuance, postponement of the

trial until the publicity dies down. The continuance mo-

tion is granted on the premise that the level of the present

zqggléflgi V- H;_§o, 199 F2d 107, 116 (lst Cir 1952).

it

publicity will recede and the public will forget what has
already been said and printed. But when the trial is ready
to start again there is no assurance that the publicity
won't begin again. During the delay, important witnesses
may leave town or die. And again the defendant must forsake
one of his rights, the right to a speedy trial, to gain a
continuance.

As described earlier voir dire is a question-and-
answer period where potential jurors are dismissed "for
cause" if they are shown to be prejudiced. Psychologists

25

point out that the prejudice may be subconscious and would
not show up on voir dire. The potential juror may not tell
the truth. And it has been shown by the Supreme Court‘s
reversal in Irvin that the voir dire cannot guarantee an
impartial jury. Nevertheless, the voir dire is an effective
tool and probably one of the best available trial-level
remedies.

Another remedy includes sequestration, the power to
isolate the jury. Judges are reluctant to do this today
because of the complexities in the life of the average per—
son. Also, this would have no effect on publicity seen by
jurors before the trial.

The judge can issue cautionary instructions to the jury,
but again these instructions, if followed, would only have

an effect after the trial had started.

Another available tool, which is infrequently used, is

 

25

Goggin and Hanover, supra note 8, 68b.

15

the blue ribbon jury. Usually, either the defense or the
prosecution is empowered to empanel a special jury on the
grounds that the case has received such publicity that an
ordinary jury could not be assembled without great diffi-
culty.26 The jurors are chosen on the basis of question-
naires and personal interviews. It is assumed that more in—
telligent persons will be better able to maintain an impar-
tial attitude during the trial. It has been suggested that
psychological tests could be used to test a potential ju-
ror's resistance to prOpaganda. While this remedy might
prove to be an excellent tool, it is expensive. And if the
problem is of the prOportion complained of by many critics,
it would not be feasible.

The last suggested trial-level solution, contempt, will
be discussed fully in Chapter II.

While some argue, as it was shown, that the first five
_ discussed remedies are worthless, there are others who argue
that if all of these Opportunities are taken that defendants
will have the fairest possible trial under the prevailing
circumstances.

An extra-judicial remedy for the indirect control of
pretrial publicity is Canon 20 of the American Bar Associa-
tion's Code of Professional Ethics. The canon generally

prohibits comments by attorneys on pending law cases. The

 

26Lawrence E. Edenhafer, "The Impartial Jury--20th Cen-
tury Dilemma: Some Solutions to the Conflict Betwee Free
Press and Fair Trial," Cornell Law Quarterly, Vol. 31 (Win—
ter, 1966), 326-7.

16
theory behind the canon is that if lawyers refuse to com—

ment on a case, the press will have little or at least less

to publish or broadcast.

The exact wording of the canon is:

Newspaper publication by a lawyer as to pending or an-
ticipated litigation may interfere with a fair trial in
the courts and otherwise prejudice the due administra-
tion of justice. Generally they are to be condemned.

If the extreme circumstances of a particular case jus-
tify a statement to the public, it is unprofessional to
make it anonymously. An ex parte reference to the facts
should not go beyond quotation from the records and pa-
pers on file in the court; but even in extreme cases it
is better to avoid any ex parte statement.27

The only persons this canon has an effect upon are

attorneys. An Opinion by the American Bar Association

(ABA) ethics committee indicates that the canon does not
prohibit the issuance of statements by public officials,

such as district attorneys or an attorney general, but sug-

gests that such statements should avoid the mention of fact

likely to create an adverse public attitude respecting the
28
actions of the defendant.

The problem with Canon 20 is that it has never been

enforced. This fact was noted by the ABA President for 1965,

Lewis P. Powell, who said at the ABA convention at Miami
Beach in 1965 that "'lawyers themselves are a major source
of [news] information which may affect the fairness of tri—
ale.”29 Powell said there was no known case of a lawyer

27Canon 20, American Bar Association Code of Profes-
sional Ethics, as quoted in Senate Subcommittee on Consti-
tutional Rights, Free Press and Fair Trial Hearings on S.
2.9.9: 1965: Po 5”?-

Q
ZUIbid.

29New York Times, August 10, 1965.

 

._..._-._ _ -...,-__

17
being disciplined for this and added that Canon 20 was un-
enforceable.

Several "new" solutions or remedies for the control of
pretrial publicity have been proposed since the Kennedy as-
sassination. host of the proposals fall into three basic
categories:

1. Voluntary codes of ethics adopted by press associa-
tions or by press-bar groups.
2. Laws which would silence participants in the trial,
such as the lawyers, police and defendant.
3. Administrative rules to prescribe limits on state-
ments made by law enforcement officials.
In addition to these proposals there have been indications
that some judges believe the court should take a stronger
stand in controlling the sources of publicity during a tri-
al. The relative effectiveness of these prOposed solutions
will be judged in Chapter V of this report. At this time
the discussion will be confined to a detailed explanation
Of specific proposals.

At least three national press associations have re-
studied the problem of pretrial publicity. The Associated
Press Managing Editors Association released a "fact guide"
on the problem in March of 1965. The small booklet is real-
ly not a statement of policy by the association, merely a
thumbnail sketch of the problem and some suggested answers
from groups throughout the nation. The APHE view on the
problem, however, is summed up quite well in a paragraph
entitled, ”Where is the Answer?"

The answer lies in a willingness on the part of both the

press and the bar to understand more deeply the problems
and goals of the Other. Just shouting at each other

_3'

DH

,n
lb

ditors,

I' 7‘; . . m
,1 l" —‘ - v
n

doesn't help. Lawyers must understand that e
too, are concerned about fair trial. Liitors must
ciate that lawyers, too are committed to the importance
of having a free press.)0

'- '1
1

In addition to this booklet the APhe has named

.. £4.4-
UOIh’Jlui/ee

SD

of its members to meet with retresentatives of the merican
Bar Association to study the problem. The organization has
not stated whether an official report will result from these
joint meetings.

’he American Society of Newspaper Editors (A333) and
the American Newspaper Publisher's Association (ANPA) have
both undertaken studies of the problem. The ASHE adOpted a
committee sport on the problem on April 14, 1935. The AKPA
report is scheduled to be re eased before the end of summer,
1966. These are not the first times these two groups have

gathered to study this problem. In fact the history of

U

journalism codes dates back to 1923.

The idea of codes within professional organizations
began in 1908 when President Theodore Roosevelt appealed to
all professions and industr es for more ethics and morality
in American business life. About 200 codes were adOpted
then, all of them voluntary and self-policing, but the news
media failed to respond to the President's call.

In 1923 the ASHE did adopt a set Of canons which con-
tained admirable declarations of policy. But no authorita-

tive action was ever taken on the part of the editors

 

3OAPME Fact Guide on the Free Press-Fair Trial Debate,
as quoted in Senate Subcommittee on Constitutional Rights,
Free Press and Fair Trial Hearings on S. 290, 1965, p. ul6.

19

through their official organization. Hence, these Very
canons of journalism conclude as follows: "Lacking author-
ity to enforce its canons the journalism here presented can
but express the hOpe that deliberate pandering to vicious
instincts will encounter public disapproval or yield to the
influence of a preponderent professional condemnation."31

A committee of distinguished representatives of the
ANPA, ASNE and ABA met in 1935 to consider the problem of
pretrial publicity. The group agreed on the problem, but
disagreed on solutions. Nevertheless the committee report
issued some interesting statements regarding lawyers, judges
and newspapers. The group condemned lawyers who yielded to
the temptation of seeking publicity for their professional
efforts as a basis for furthering their careers or further-
ing their cause. Judges must expect to have their conduct
subjected to the freest criticism, the committee concluded
unanimously. Three primary functions of the media were
listed: dissemination of news, editorial guidance of public
Opinion and conduct of commercial business. The committee
report added that a newspaper should exclude "anything that
would tend to corrupt the judgement of the jury by introduc-
ing prejudice or substituting somebody else's uninformed
judgement for the deliberate and supported judgement which

they are eXpected to render."32

 

31Edwin H. Otterbourg, “Fair Trial and Free Press; A
New Look in l95u," Communlgationsgfledia Legal and Policy
Problems (Ann Arbor: University of Michigan Law School,
19555: p0 850

321b1d.

20
The ASHE report of 1965 is largely a denial of charges
leveled against the news media and a statement of rededica-
tion to the principles of fair and honest reporting. State-
ments from the report show this clearly.

A year's study of the issue of "free press--fair trial"
has brought your committee to the uncomfortable realiza-
tion that the American press--to reverse a sententious
cliche--is confronted not with facts but with a theo-
ry . . . . Convincing or even credible evidence on the
degree to which press coverage of criminal proceedings
injures the chances of fair trials for defendants is al-
most totally lacking. . . . To perform its functions,
the press must not be bound by the same regulations that
govern the Operation of law enforcement agencies and the
courts. . . . We are convinced that the repression en-
tailed by those proposals would not only cause a for—
feiture of the public's credence in their news media but
would withdraw the essential safeguard of public aware—
ness and scrutiny from the processes of justice. We be—
lieve that the issues in free press-~fair trial can best
be solved by the approach that has always had the most
success in our democratic system; that is by energetic,
frequent and continuing conversations among those con-
cerned.33

The report pointed out that each newspaper is unique
and has unique problems, but urged all segments of the news-
paper press to use good taste and restraint in reporting
criminal news.

On February 3, 1965, the ANPA formed a lZ-man commit-
tee to study the problem of free press-—fair trial.3u The
report from this committee has not yet been made public;

however, after a conversation with one member of the

 

33Report of the Press-Bar Committee, American Society
of Newspaper Editors, 1964-65, as quoted in Senate Subcom—
mittee on Constitutional Rights, Free Press and Fair Trial
Hearings on S. 290, 1965, pp. 93-97.

34New York Times, February b, 1965.

comiittee, Louis J. ZJeil, Jr.,33 publisher of the State

Journal of Lansing, hichigan, it is believed that the A’PA
report will parallel the ASH; report. Publishe Jeil said

that there is a reconciliation of viewpoints between the
ANPA and the ABA and the fear of an impendi n3 conflict has
diminished greatly. Weil indicated that the AHPA re ort
would reveal a great area of a3reeme nt between the two
groups. He indicated that the ANPA committee elieved that
the recent uproar caused by the assassination is dying down
and that most of the proposals for action will fade away.
The publisher said he was unable to make public the specific
contents of the report as it was still being formulated.

Several state press associations and bar associations
have studied the problem of free press and fair trial and
formulated joint policy statements or codes. (Two complete
codes or guides are included in Appe ndix xes B and C of this

port.) Some, such as the bench-bar—press principles out-

lined in Washington, are general. The guidelines in this
type of code are a restatement of basic American freedoms
guaranteed by the constitution coupled with an expression
Of a sincere desire to protect the rights of both the de—
fendant and the free ress. There are few, if any, specific
suggestions made.

Other press—bar guides are specific, such as the news
media guide formulated by the hassachusett's press associ—

ation and bar association. This guide outlines specific

 

3SInterview with Louis J. Neil, Jr., June 9, 1965,

22
types of information which "should be avoided" in news
stories. Included are such items as criminal records, con—
fessions, testimony stricken by the court, interviews with
witnesses and leaks on the outcome of the trial from in—
formed sources. The Nassachusetts guide also lists several
types of statements which should be avoided by lawyers and
prosecutors. These include out-of—court statements by the
prosecution or defense attorneys, conclusions as to guilt
or innocence, information regarding confessions and anony—
mous announcements or tips to the press.

Neither of these two types of codes or the many othe
types which have been develOped in the past two or three
years by joint effort of the press and the bar have any
means of enforcement attached. Their strength lies in the
continued good faith of both parties to uphold the princi-
ples as they are outlined. Joint committees have worked on
guidelines in Texas, Virginia, Oregon, Kentucky, Louisiana,
Colorado and Arizona, in addition to the two states alread‘r
mentioned. 'In the city of Philadelphia a much publicized
bar-press guideline was voted into effect in tie fall of
1965. Although listed as a joint effort, the three major
newspapers in the city refused to send representatives to
the study meetings. It was adopted by 100 members present
at a meeting of the u,OOO member Philadelphia Bar Associa-
tion.36

Senate Bill 290 was introduced in the U. S. Senate by

{
30New York Times, October 24, November 11, 1935.

 

q

Democrat Nayne horse in 1965. horse, formerly the dean of
the Unive sity of Oregon Law School, testified upon intro—
ducing the measure that "criminal trials have been disrup-
ted and the impartiality of jurors contaminated by the pub-
lication of such material as confessions, past criminal re—
cords and derogatory characterizations of defendants by pro—
secutors and police officials."37 The bill is an attempt to
curb statements by court officers in federal courts and pro—
poses no direct action against the press. It stipulates:

It shall constitute a contempt of court for any
employee of the United States or for any defendant or
his attorney or the agent of either to furnish or make
available for publication information not already pro-
perly filed with the court which might affect the out-
come of any pending criminal litigation, except evidence
that has already been admitted at the trial. Such con-
tempt shall be punished by a fine of not more than
31,0003d

Again this measure uses as its basis the thesis that the
press is merely an observer and recorder. If all questions
are met by silence there will be nothing to record and re-
port. Four days of testimony was heard with leaders in the
field of journalism, law and government appearing to testify
for and/or against the bill. No action has been taken by
either the committee or the full Senate since the hearings.
In the Spring of 1965 the Attorney General of the

United States, Nicholas deB. Katzenbach, announced a new

Justice Department policy on the release of information

 

37Ibid., August 18, 1965.

38U. S. Congress, Senate, Bill 290, 89th Cong., lst
Sess., 1965.

,7) 3+
3
about defendants in the custody of the federal government. ’
The announcement was made at the ASHE convention in flashing-
ton and was met with general approval of the editors at the
MO 'm . .
meeting. ihe policy outlined eight categories of informa-

tion and the Justice Department policy on each. The attor—

ney general, in presenting the new doctrine, noted that un-

officially these rules had been Justice Department policy

since 1963. The policy stated that the Justice apartment

would furnish to the press the defendant's name, ge, resi-

eiployment, marital status, other background informa-

identity of

dence,
tion, the substance or text of the charge, the

the investigating and arresting agency and the length of

investigation and the circumstances immediately sur—

(

the
rounding the arrest, which might include the time, Llace,

any resistance, pursuit, the possession or use of weapons

and any items or goods seized in the arrest. Katzenbach

said photos of the accused would be available if a valid
law-enforcement function would be served and the Justice

Department would not try to prevent the taking of photo—

graphs of the defendant in public places. But the repart—

ment would not encourage such picture-taking or pose pris-

oners. The Attorney General said the government would be

circumspect in the disclosure of a criminal record and
would not volunteer such information. When queried the

39See Appendix A for complete Justice Department

policy.
40,
New YQrk Times, April 17, 1965.

,-'
1‘; J

department would only supply information on federal convic—

tions. Katzenbach stated that no confession or the fact

that a confession had been made would be released and tech—

nical evidence such as polygraph tests, fingerprint and bal-

lastic reports would not be given out. Katzenbach told the

editors that it was not the function of the Justice Depart-

ment to revulate conduct of the press. "For us to try to

impose our judgement on yours denies your share of the res-

ponsibility that belongs to the press and public officials

alike,"u1 he said.

On November 16, 1964, Justice John J. Francis of the

Supreme Court of New Jersey upheld the first degree murder
appealed on

conviction of Louis Van Duyne which had bee
2

I
the grounds that publicity had prejudiced the jury.4 But

while upholding the conviction Justice FranCis leveled a

sharp blast at police, prosecutors and attorneys for their

role as the source of the prejudicial publicity. Justice

Francis' comments included:

We interpret these canons, particularly Canon 20, to ban
statements to news media by prosecutors, assistant pro-
secutors and their lawyer staff members, as to the al—
leged confessions or inculpatory admissions by the ac-
cused, or to the effect that the case is "Open or shut"
against the defendant and the like or with reference to
the defendant's prior criminal record, either of convic-
tions or arrests. . . . with respect to prosecutors'
detectives and members of local police departments who
are not members of the bar, statements of the type des-
cribed are an improper interference with the due admin—
istration of criminal justice and constitute conduct

 

9
h“State v. Van Duype, #3 N. J. 369, 203 A. a

 

(a)
‘\

unbeco sing a police offit er. As such they narrate 1'
cipline at the hands of the proper iutioritiec The ban
on statements by the prosecutor and his aides applies as
well to defense counsel. . . . The courtroom is the
place to settle the issue and comments before or during
the trial which have the capacity to influence potential
or actual jurors to the possible prejudice of the defen-
dant are impermissible. 3

Nineteen months later the U. S. Supreme Court, seeming

, rendered a

O]

to echo Justice Francis in less stinging term
similar admonishment to judges and other court officers in
the decision reversing the conviction of Dr. Samuel Sheppard.
The Sheppard case began on July 4, 195M, when Marilyn
Sheppard, wife of the prominent physician, was bludgeoned
to death in her home in Bay Vill.age, Ohio, a suburb of
Cleveland. Several days went by and no arrests were made
in the case. Many persons, including Louis B. Seltzer, edi-
tor of the Cleveland Press, believed that Marilyn's husband
Sam should be questioned in connection with the murder.44
Seltzer used the P ass to get his message across. The doc-
tor was finally arrested and what transpired between his
arrest and conviction in late autumn of l95¢ was described
as a "Roman holiday for the press."u5 Debates were held,
preliminary proceedings were televised, public interviews
were held, nearly all witnesses were interviewed on the ra-
dio and in the papers, and all the time the Press kep up

its campaign to convict Sam Sheppard. Judge Joe Brown did

Ibid.

 

b4 ,
New York Times, November 21, 1925.

45Description by the Ohio Supreme Court, as quoted by
the New Yerk Times, November 21, 1905.

 

27

little to control or re strain either the actions of the
press in and around the courtroom or the publicityb ein
enerated.46

It took 11 years for the case to reach the supreme
Court. Justice Thomas Clark wrote the majority decision
the court and admonished the trial judge, who had since
died, for his basic failure to control the publicity and
the actions of the news media.

Excerpts from the decision will give read:

theme.

Bearing in mind the massive pretrial publicity, the

(U
*3
U)
C'-
:S‘
(0
OJ
m

for

judge should have adOpted stricter rules governing the
use of the courtroom by newsmen . . . the court should

have insulated witnesses [from the m ediaj. . . . The
court should have made some effort to control the re—

lease of leads, information and gossip to the press by

police officers, witnesses and the counsel for both

sides. . . . And it is obvious that the judge should

have further sought to alleviat this proolem by impos-
ing control over the statements8 ma dc to the news media

oy counsel, witnesses, an especially the coroner and

police officers. . . . The trial court might well have
proscribed extrajudicial statements by any lawyer, party

witness or court official which divul3ed prejudicial
matters . . . the court could also have requestel the
apprOpriate city and county officials to promulgate a

egulation with respect to dissemination of information
about the case by their employees. In addition, report-

ers who wrote or broadcast prejudicial stories could
have been warned as to the i.1npr0priety of publishing
material not introduced in the proceedings. .
The implications of this decision are quite clear.
The Supreme Court, while still hesitating to restrain the
pPeSS. has adepted the theory that if there are no state-

ments from participants in the trial, then the prejudicial

 

46
117

New York Times, November 21, 1965.

New York Times, June 7, 1966.

23

publicity can be minimized. But the court apparently does

“u

not agree that a new law or restrictive codes are neede .
Justice Clark implied that the power to control the lawyers,
police, prosecutors and witnesses is currently in th: hands
of the trial ju 3e.

At this point the reader should have a clear and fair-
ly complete picture of the controversy and the available
and prOposed solutions. while most of what was said con-
cerned activities which had a national scepe, they each have
a definite effect in Michigan and even in a single county of
Michigan. Local courts must abide by Supreme Court rulings.
Local newspapers are members of national groups. The local
p ess deals with the Justice Department in everyday work
situations.

It should be noted before concluding the discussion
of the problem that Michigan has been fortunate in that the
free press--fair trial controversy has not reached the crit-
ical stage in this state. There have been isolated cases,
such as the one to be discussed in Chapter III, but the cry
for "action" heard in many states in the past four years
has been a relative whisper here. The Michigan Press Asso—
ciation has met informally with the Michigan Bar Association
to discuss the problem,but no formal reports have been pro-
duced. In addition, the Criminal Jurisprudence Committee of
the Nidhigan Bar Association is currently undertaking a

study of the free press--fair trial controversy, but no re-

POrt has been prepared.

SHAPTJE II

gin BRITISH SOLUTION--COHTEKPT CF COURT

Critics of the American press in the controversy
caused by publication of allegedly prejudicial information

‘

before the trial often point to the Britisn system of *us-

£_.

tics in which the press is rigorously restricted in their

coverage of criminal cases. British courts use their power

,JJ
J

«\vy

of contempt to regulate the performance by he press anc s,
many standards, the system has worked quite successfully.1
The British press can't quote from a confession before
a trial or even reveal there is a confession; they cannot
publish material which would not be admitted as evidence,
which includes a previous criminal record; they cannot print
the results of their own investigation; it is considered
dangerous to interview witnesses and use quotes; and editors
are urged to check with police before a picture of the e-
fendant is printed. Lord Devlin, a distinguished British
legal scholar said "almost any comment on a matter before
the courts that might influence a Jury one way or the other
is capable of being contempt of court, even though it is

done innocently by an error of Judgement or an honest

 

1See Harold w. Sullivan, Trial by Newspaper, (Hyannis,
Mass.: The Patriot Press, 1961), for a favorable evaluation
of the British system.

29

30

After the proceedings begin, however, the Brit-

p—o

mistake."
ish press cover the trial with stenographic gusto, but still
must present a fair and accurate report of the proceeding.
One American journalist, Anthony Lewis of the New York
Times, has noted some important differences between the
United States and Britain which would make adoption of such
a system here perilous, if not illegal.3 Lewis points out
that the trial process is a much more rapid one in England.
Even the most important charges are likely to have been
heard within a month and the sentence is passed at once.
All appeals are usually disposed of within a few weeks.
The interpretations of the U. S. Supreme Court restrict
Judges from exercising the British type of regulation over
the American press, Lewis said. Britain is a small homo-
geneous nation with a tradition of a parliament sensitive
to abuses by judges, policemen or prosecutors. Police cor—
ruption has been virtually unknown, and historically there
has been very little serious organized crime. Occasionally,
policemen and judges are bought and sold in the U. 8.,
Lewis alleges, and organized crime is big business here.
Concerning fraudulent prosecutions Lewis notes that in a
community where crimes against a given race or group are
traditionally tolerated, publication of the facts of the
crime may be the instrument which forces justice, rather

than obstructs. Another consideration which Lewis points

 

2New York Times, IV, June 20, 1965.

3Ibid.

31
out is the political aspect of United States judicial sys-
tems. Judges and prosecutors are elected here while in
Britain the bar is a small, cozy group and an attorney may
be prosecutor one day and defender the next. There are no
young prosecutors trying to make a name for themselves or
judges trying to ascend the judicial ladder on spectacular
criminal trials.

More important than the differences in British and
American social and moral climates, there is a distinct dif-
ference in the American and British interpretation of the
contempt power, as LeWis briefly pointed out. As inter-
preted today, there is a serious doubt whether the contempt
power could be applied in American courtrooms against "of-
fending" publications. Before exploring this idea, however,
a short explanation and history of the contempt power is
essential.

There are two types of contempt, civil contempt and
criminal contempt. The latter is divided into two catego-
ries; direct contempt, which normally occurs in a courtroom,
and indirect contempt, which takes place outside a court-
room. The indirect or constructive contempt power can be
used to control publicity in newspapers before and during
a trial, but the rule of law as established by the Supreme
Court is so strict that the nature of the publicity must be
highly inflammatory and grossly prejudicial before it might
be considered contemptible.

A federal contempt law was enacted in 1831 and has

32

been interpreted and reinterpreted by the Supreme Court.
The law was the result of an impeachment proceeding initi-
ated against federal judge James H. Peck for a misuse of
the contempt power. Under the 1831 law the summary con-
temptu punishment was restricted from use in any case "ex-
cept the misbehaviour of any person or persons in the pre-
sence of said courts, or so near thereto as to obstruct the
administration of justice."5 Until 1918 the phrase "or so
near thereto” was accepted to have a causal meaning. But
in the case Toledo Newspaper Company v. g;_§; this inter-
pretation was challenged, not in the opinion of the court
but in a dissent by Justice Holmes.6 In the Toledo deci—
sion the majority of the court agreed that any publication
which had a reasonable tendency to obstruct justice could
be cited for constructive contempt. But Holmes challenged
the authority of the court to punish out-of-court publica-
tions. A newspaper was not published in the presence of
the court or "so near thereto" as to obstruct the adminis-
tration of justice, Holmes said.

Twenty-two years later the court accepted the Holmes

interpretation and in Nye v. U. 8.7 in 1940 overruled the

 

Summary contempt power is exercised through the dis-
cretion of the court. This is opposed to statutory contempt
which is authorized by statute, or law.

5Act of Mar. 2, 1831, c. 98; 4 Stat. 487.
62”? U. S. 402 (1918).

7313 U. s. 33 (iauo).

33

Toledo decision. In the majority Opinion the court said
that "so near thereto" referred to physical proximity. This
interpretation still stands today and the sentiments of many
lawyers and judges are echoed in the words of one legal
scholar: "The federal courts are presently unable to sum-
marily punish constructive contempt."8

While the Supreme Court has limited the contempt power
in federal courts, it has also restricted the use of this
power by state courts. Following the 1918 Toledo decision
which established the "reasonable tendency" test for con-
tempt, most states enacted laws using this rule as a founda-
tion. Beginning in 1940, a series of U. S. Supreme Court
decisions demolished this test in state courts and strict
new standards were applied to contempt actions.

Bridges v. California,9 which reached the Supreme
Court in 1940, was the first state contempt case ever re-
viewed by the high tribunal. The case produced a landmark

decision which overruled the conviction of the Los Angeles

 

Egflgg and labor leader Harry Bridges. The court refused to
accept the "reasonable tendency" test as a sufficient cri—
terion, in essence voiding the California law.

The Timgg had been convicted in California state courts
for publishing a series of editorials dealing with cases

which had not been finally adjudicated. In an editorial,

 

C
L)"Contempt by Publication," Northwestern University Law
EEXLEE: Vol. 60 (September-October, 1965), jug,

931a U. s. 252 (1941).

34

the editors urged the court to deal severely with two union
members accused of assault. The men had been found guilty
and were awaiting sentence. Other editorials commented in a
similar manner on different subjects. Bridges was cited for
contempt for allowing the contents of a telegram that he had
sent to the Secretary of Labor to be published. The tele-
gram threatened a general strike if a pending trial resulted
in a decision unfavorable to the union.

In the five to four decision written for the court by
Justice Black the "clear and present danger" test, first

enunciated by Justice Holmes in Schenck v. U. 3.10

in
1919, was introduced as a measure of constructive contempt.
In Schenck, a case involving seditious rather than contemp-
tuous remarks, Holmes said
the question in every case is whether the words are used
in such a circumstance and are of such a nature as to
create a clear and present danger that they will bring
about the substantive evils that Congress has the right
to prevent.11
In Bridges, Black said what finally emerged from the
Holmes doctrine is a "working principle that the substantive
evil must be extremely serious and the degree of imminence
extremely high before utterances can be punished."12 Black
said that the thesis that the contempt power had its roots
deep in English common law was a dubious contention and

added that "one of the objects of the American Revolution

 

1063 U. s. L.Ed. #70 (1919).

lllbid., 473.

12Bridges, 263.

A

35
was to get rid of English common law on liberty of freedom
of speech and press."13 he said that it was while a trial
or proceeding was underway that public interest was the
highest and that to require the press to withhold comment
until the conclusion of the case would be a significant
abridgement of freedom of the press.
We cannot start with the assumption that publications
actually do threaten to change the nature of legal tri-
als and that to preserve judicial impartiality it is
necessary for judges to have a contempt power by which
they can close all channels of public expression to mat-
ters touching on the pending cases, Black said.14
An inherent or reasonable tendency to obstruct justice was
not enough to restrict free speech, he added.

Five years later in Florida the Supreme Court of that
state upheld the conviction of the publisher of the filfifli
Herald for publishing two editorials and a cartoon criticiz-
ing the alleged leniency of the circuit court in Dade County.
The contempt citation charged that the newspaper had attacked
the integrity of the court and thereby impeded the adminis-
tration of justice. The U. S. Supreme Court was called upon
for a decision and in Pennekamp v. Florida15 restated the
"clear and present danger" test and reversed the conviction.
Justice Reed, speaking for the court, enlarged the test con—
Cept by stating that contempt didn't exist even though the

newspaper may have distorted the facts about the case. Bree

 

13Ibid., 264.

1”Ibid., 271.

15328 U. s. 331 (1946).

36
discussion is a cardinal principle of Americanism, Seed said,
and discussion after a trial has ended may be inadequate and
endanger the public welfare. “Freedom of discussion should
be given the widest range compatible with the essential re-
quirement of the fair and orderly administration of jus—
tice," he added.16

The third case in this trio came one year later. In
QEQLE v. Harney17 three Texas newspapermen were cited for
contempt for publishing several articles critical of a Cor-
pus Christi lay trial judge and his decisions. The news-
paper article called the judge's rulings "arbitrary actions"
and "travesties on justice." The case concerned a well-
liked servicemen who had missed a rent payment on a cafe
which he leased in the city. The trial judge instructed
the jury on three occasions to find for the plaintiff who
sought to retake possession of his building, which he had
leased to the defendant. But the jury refused three times.
Finally the jury followed the judge's instructions upon the
request of the defense attorney.

The Texas Court of Appeals claimed the published ma-
terial satisfied the clear and present danger test laid down
in Bridges, and then attempted to distinguish Bridges claim-
ing the Texas case concerned private litigation not invol-
ving a public interest.

Justice Douglas wrote the Opinion of the court in the

léIbid., 347.

17331 U. s. 367 (1947).

\Jk)
“Q

-.

' ‘ ' ‘ ‘ \ - -: ' ._‘ '_". '1 o
Six-to-three 330181on, and d1

L)

agreed with both points. He
dismissed the notion that the permissable comment should be
lessened in a case which generated no public interest and

stated that the facts in the cas

(u

did not satisfy the ”clear

and present danger" test.

The history of the power to punish for contempt mnl tie
unequivocal command of the First increment serve as con-
stant reminders that freedom of Speech and of the j ness

should not be impaired through use of the exercis of
that power unless there is no doubt that the utte rances
in question are a serious and imminent threat to the Ud-
ministration of justice. . . . A trial is a public
event. What transpi es in a courtroom is public pro-
:erty. . . . Those who see and hear what transpires can
report it with impunity. here is no special prere 111-
site of t 3 judiciary which enables it, as distinguished
from other institutions of democratic government, to su—
press, edit or censor events which tranSpire in proceec—
ings before it.1J
Douglas admitted that the news articles did not re-
flect good reporting, and that they were unfair and inaccu—
rate. "Certainly a reporter could not be laid by the heels
for contempt so use he missed the essential point in a tri—
al or failed to summarize the issues to accord wit: the
views of the judge who sat on the case,” he added.
These three cases form the modern foundation for the
interpretation of he constructive contempt power in state
courts. The court has spent little time in reviewing state
decisions in this area since Lrb7. In 19 62, however, the
court did reverse the contempt conviction of a Beer

iff who was cited for issuing a statement to the erase

 

'1 ".7
)u

4." 77
A

accusing county jud“es of "judicial intimidation" 01

N U
C)

voters and leaders.

Two things should be noted about these decisions.
First, in each decision there was a vocal minority, usually
led by Justice Frankfurter, which Opposed the liberal inter—
pretation of the First Amendment and believed that the ad-
ministration of justice was too important to be even slight-
ly tainted by the outside influence of the press. Hhile
this minority view did not prevail, a change in the composi-
tion of the court can sometimes make the minority the ma-
jority.

It should also be noted that the publicity in each
case occurred during a trial and was directed at a judge.
While it is true that this is a different situation from
pretrial publicity which has its effect indirectly on a de-
fendant, the attitude of the court, as exhibited by the de-
cision, is nevertheless very liberal in regard to free press.
Because of this prevailing attitude it can be safely assumed
that a contempt citation against the press must have its
foundation in a problem of highly prejudicial material,
which presents a clear and present danger to the administra-
tion of justice. In all its action in both pretrial and
trial publicity cases the court has taken no action against
the press, but rather, when the rights of a defendant have
been jeopardized, has ordered a new trial or reversed the

conviction.

 

zoflggg v. Georgia, 370 U. S. 375 (1962).

39

As a tool, a threat against pretrial publicity, tte

r.—

contempt power currently within the powers of the court, is
of little value. T. E. Crosley, Jr., writing in the Vir-
ginia Law Review, spoke for many leaal scholars when he said

L2

Several decade ago one writer commented that trial by
newspaper might be stopped if judges would only use the
contempt power at their diaposal. Today, the same au-

thor probably would argue that trial by newspaper might

be effectively stopped if judges only had contempt power
at their disposal.

Before leaving the discussion of contempt, two Richi-
gan cases which have a earing on this topic should be noted.
Neither of these cases heve great significance, yet they
represent the Michigan law which has come down from the
state courts.

The first was in 1922 and involved a breach of promise

suit between two persons prominent in Detroit society. The

”2
case received heavy publicity in the newspapers.‘ After
the court found for the plaintiff, the defendant chargei

that the jury had been influenced by the publicity. During
the trial the judge had noted that a great deal of publicity
was being given to the proceedings and admonished the jurors
not to read the newspapers and not to form an opinion from
material presented outside the courtroom. In the appeal,

the Michigan Supreme Court upheld the decision for the

plaintiff. The court said that there was no evidence that

\J

 

21T. E. Crosley, Jr., "Contempt by Publication: The
Limitation on Indirect Contempt of Court," Virginia Law He-
view, Vol. #8 (April, 1962), 572.

’3
“ZHatton v. Stott, 220 Mich. 262 (1922).

#0

do with encoura3in3 the pub-

the plaintiff had anything to
licity and that it did not believe the jury would have

reached a different verdict if there had been no publiC1ty.

The most Sim mificant part of the decision was a statement

in the Supreme Court opinion that the trial court had no

to control such publicity. Apparently in 1922 con-

solution for such a problem.

means

tempt was not considered

9
Seven years later in In Re Simmons“3 the Michigan Su—

preme Court held that a statement made outside the court-
room by an unsworn witness which was published by the press
was contemptible and upheld the conviction of an attorney
who made the statement. No action was taken against the
ewspaper which published the state.ent or the reporter who
obtained the statement. Simmons, the lawyer, charged that

it was the newspaper which should be charged with contempt,

that answering questions of a man known to be a newsna

reporter is not sufficient to charge a person wi h responSi-

bility for publication. The court disagreed.

If the statement is indicated for publication, with the
intention that it will be written and published and
the purpose in that respect is carried out, the party
who makes it with such intent and understanding is

equally guilty as if an express request for publication

was made. 2
While neither of these represent landmark decisions

in the field of law, it is interesting to note that even in

1929 the Mchigan court was reluctant to infringe on the

3uaranteed in the First Amendment.

0)

freedom of the pros

VU

and an exp anation of

Tie discussion of the problem
the solutions, both proposed and existing, is complete. It
is necessary now to look at an actual case in which news-
the trial.

paper publicity was considered a factor before
Using this case as an example it will be easier to
iveness of

the extent of the problem and the probable effecti

the proposed solutions.

{)1

both the existing an

CHAPTER III
THE STEBEN ASSEMBLY CLUB CASE

The county of Oakland in the state of Michigan is con-
sidered by many recreation enthusiasts as the "playland of
the Midwest." With an estimated pOpulation of 690,259,1
the county is situated in Southeastern Michigan with its
southern border abutting the city limits of Detroit, the
largest city in the state. Detroit's night spots, theaters,
restaurants, and hotels offer a haven to the night peOple in
the area, while Oakland County's many-hundred lakes, beaches,
parks, picnic areas, fishing sites and ski resorts beckon
the outdoor lovers from throughout Southeastern Michigan.

On October 11, 1963, Michigan State Police, assisted
by agents of the United States Immigration Service and mem-
bers of the Madison Heights Police Department raided one of
Oakland County's play spots, the Steren Assembly Club, lo—
cated at 25300 John 3., Madison Heights, and arrested u9
Persons on charges of either operating or frequenting a gam-
bling establishment. The raid was led by Frederick Davids,
then a State Police captain and commander of the Detroit

District. Today Davids is the director of the Michigan

 

1U. S” Bureau of the Census, Eighteenth Dicennial Cen-

sus of the gnited States: 1960. P0pulation, Vol. I, Part
A) Zu-ZO.

42

43

State Police. According to Davids the successful raid
capped nearly three years of work and frustration in at-
tempts to crush the gambling operation which moved from
time to time to different spots throughout the area.2
There had been three previous raids on the Steren Club,
Davids said, but in each case the only law violations police
could find were infractions of the state fire laws. Each
time the club owners were cited for violation of the fire
code. Davids recounted recently that everyone in the area
knew that gambling was going on in the club. "The local
police knew, the state police knew, the people that lived
in the area knew. This was a poorly kept secret. But they
Zthe club owners] had a good security network and we could
never catch them at it," he said.3

While the raid capped three years of frustration on
the part of police, Davids and the other participants and
patrons of the Steren Assembly Club could not have imagined
as the door of the club was broken down that there would be
nearly two more years of frustration before the case reached
its "first" conclusion, the end of the first circuit court
trial. Today, early three years later, the fate of the de-
fendants is still undecided as the conviction of the 18 who
have been tried is being appealed on the grounds that "sen-

sational” publicity had made a fair trial impossible. This

 

2Interview with Frederick Davids, Director, Michigan
State Police, July 20, 1966.

3Ibid.

we
chapter is a detailed study Of this so-called sensational
publicity. But before the newspaper coverage is considered,
a brief history Of the case is required.

The story really begins on October 10, 1963, the day
before the State Police raid. Federal Judge George Edwards,
a former Detroit police commissioner, presented testimony
on the structure Of organized crime in Detroit to a United
States Senate subcommittee meeting in Washington. Edwards
reported to the committee that the Mafia organization (the
Mafia is believed to be an international crime conspiracy
which Operates most Of the organized illegal Operations in
the United States) in Detroit was a $200 million per year
Operation. Edwards described the alleged leaders Of the
local Mafia group and presented a detailed list Of the hier-
archy Of organization. The list was comprehensive, but for
the purpose Of this report, only three names on it have a
significance: Eddie Guarella, 45, of St. Clair Shores,
Michigan, Joseph Brooklier, 50, Of Mt. Clemens, Michigan,
and Tony Bandazzo, 56, Of Detroit.4 All three men were ar—
rested the following day at the Steren Assembly Club.

Needless to say, the local newspapers gave detailed
coverage tO the charges by E wards. One can speculate that
if the Edwards story had not broken on the day before the
raid, if the revelation Of local Mafia operations had not
been presented so graphically, perhaps the Steren Club raid

would have been little more than an item on an inside page.

uPontiac {Michal Press, October 10, 1963.

45
But this is only speculation.

Soon after the raid the police and the Oakland County
prosecutor's Office decided to try the 24 defendants charged
with Operating the club first. The remaining 25 defendants,
who had been charged with frequenting a gambling place,
would stand trial only after the Operators had been con-
victed.

The 24 Operators would stand trial on three counts Of
conspiracy to violate state gambling laws and three counts

5

Of violation Of state gambling laws. Brooklier and Guar-
ella, noted previously in connection with the Edwards' tes-
timony, were charged as Operators Of the club.

After several delays, the preliminary examination be-
gan on February 3, 1964. There were 24 complete days Of
testimony, but the examination did not conclude until late
September. During the examination it was revealed that a
State Police agent had been smuggled into the club prior to
the raid. This aspect Of the case tOOk on an even more in—
teresting news angle when it was learned the agent was an
attractive former model named Margaret (Peggy) Allen.

At the close Of the examination 18 defendants were
bound over for trial in circuit court on one count Of con-
spiracy and one count Of violation Of gambling laws, three

were bound over on two counts Of each charge, and Farming-

ton Township Justice Allen Ingle dismissed all charges

 

5Detroit News, October 22, 1963.

it
(A

/
0
against three defendants.

The Circuit Court arraignment was held on September
28, 1964 and trial was scheduled to begin in mid—November.
Several postponements occurred. Finally, on April 21 the
trial was set for May 11, 1965.7 Prior tO the trial day
the defense attorney for the 21 defendants, Carlton Roeser,
petitioned Judge Stanton Dondero for a change of venue.
Roeser said the publicity in the case made it impossible
that an impartial jury could be found.8 This motion was
granted on haylj? and on May 15 it was announced that Hanis-
tee had been chosen as the site for the trial, which was
now scheduled to begin on July 22.10 On June 27 Dondero
had a fatal heart attack and Judge Frederick Ziem was as-
signed tO hear the case, which Opened on July 28.

hanistee is a relatively small town on the shores of
Lake Michigan between Ludington and Traverse City. The city
has a population Of 8,342, less than half Of the county's
19,042 residents.11

The selection Of a jury was the first undertaking at

the trial. This was a difficult task. Nearly 300 citizens

 

6Daily Tribune (Royal Oak, hich.), Sept. 19, 1964.

7;pgg., Sept. 28, 1964, and April 21, 1965.
8M” April 27, 1965.

?;Q;Q., May 12, 1965.
102.2121.” May 15, 1965.
11U. 5., Bureau Of Census, Eighteenth Dicennial Cen-

sus Of the United States: 1960. Population, Vol. I, Part
A, 21+-19.

 

 

 

11L 7
were called to the courthouse before a jury panel of 14 was
selected. Only five persons of the 300 called had never
heard of the case. Sixty-five jurors were excused because
they had already formed an opinion about the case.12

On August 11, 1965, 20 defendants were found guilty.
(One had been excused from immediate trial after suffering
a heart attack.)

Three other factors should be mentioned before a sur—
vey of press coverage is undertaken. Three participants in
the trial were running for public office during the prelim—
inary examination. Justice Ingle was a candidate for the
Oakland County Circuit Court. Assistant prosecutor Robert
Templin, in charge of the case, was a candidate for prose-
cutor. Joseph B. Sullivan, an "observer" from the Michigan
Attorney General's office was making a bid for the Wayne
County prosecutor's post. All three men lost.

During the examination a $100,000 suit was filed
against police agent Margaret Allen and the Michigan State
Police by Mrs. Barbara McLeod of Los Angeles who claimed
that Miss Allen had used identification bearing Hrs. theod's
name and former Michigan address when entering the Steren
Club and had defamed her character. The suit is still
pending.13

Finally, Miss Allen, the state's star witness, fled

from Michigan in July of 1965 just prior to the opening of

12Manistee News Advocate, July 29, 1965.

13Pontiac Press, March 11, 1964.

 

 

as

she would

”2
'7
("f

the trial in Kanistee. She told the press t1
not return to testify because the pressure (sne did not
specify the type of pressure but presumably meant threaten-
ing phone calls and loss of her job in Lansing as steno-
grapher for the Democrats in the legislature) was too great.
She did return, however.

The remainder of the chapter will be devoted to a
brief survey of the publicity given the case by five news-

papers; the Daily Tribune, which is published in Royal Oak,

 

a city adjacent to Eadison Heights, the site of the raid;
the Pontiac Press, published in the Oakland County seat“

the Detroit Free Press; the Detroit News and the Nanistee

 

News Advocate.
The coverage of the Steren Assembly Club case began

in a curious manner. A Free Press reporter on his way home

 

from work on October 11, 1963, noticed a large number of

1

police cars in front of the club. He stopped, went inside

to see what was going on and soon learned of the gambling
raid. He called the Free Press in time to get a story in

the final edition of Saturday's paper.1u

It wasn't long
before other reporters and photographers were at the sce.e.

The Daily Tribune in Royal Oak is the local newspaper

 

in this particular case. The paper circulates nearly

65,000 c0pies in the southern half of Oakland County and

 

14State Police Director Frederick Davids related this
story in an interview on July 20, 1966. He was unable to
recall the reporter's name. A check with the Free Press
also turned up no clues to the identity of the unnamed
newsman.

 

O

‘1

l
,4 .

\

saturates the hadison Heights area.15 The newspaper pub-

lished 128 stories on the case from the night of the raid

until the conviction in kanistee.

(In order to facilitate this survey the author will

take certain liberties with style and form. The gist and

a ('7
'v \J.

important quotes from significant stories will be includ

in a single spaced paragraph following the date the story

appeared in the newspaper. If headlines are noted they will
be in all capital letters. Direct quotes will be within

quote marks. Other material will be a summation of the ar-
ticle and will not be attributed to the paper or reporter

in each case. Selected phrases will be underlined. In the
opinion of the author these phrases are important in an eval-
uation of the publicity. The selection will be made on a

subjective basis.)
October 12, 1963. (Banner headline) SOCIAL CLUB
”police swooped down on a

RAIDED BY STATE POLICE . . .
posh Madison Heights_gambling_house late Friday .
named as alleged members of the local Cosa Nostra (ta-
fia) hierarchy, Eddie Guarella,f45, St. Clair Shores,
Joseph Brooklier, 50, Mt. Clemens, Tony Bandazzo, 56,
Edwards described Guarella as one of

Detroit." George
the tOp 30 men in the Detroit mafia, Brooklier was a
section leader (whatever that is). Captain Frederick
Davids (now commissioner Davids) "called the Steren
Club 'the biggestggambling operation this side of Las

Vegas.'" The Steren Club has an atmosphere like that
social clubs across

"found in thousands of legitimate
the nation." Davids said "'there were penny ante gates
the big games, craps

in progress in the front room . . .

and blackjack were in the back room.'" In the back room

Davids' men uncovered "ingenious devices for disposing
4.1

 

of gambling equipment in a hurry, for example this pipe
where dice can be dropped in a hurry and will be grounl

up like a disposal at home. 'This is great,‘ Davids

managing editor, the

15Interview with Grant Howell,
Daily Tribune, June 7, 1966.

said, 'we've waited a long time for this hit

Nine pictures taken at tae scene of

included in the October 12 eu'

they were posed, but Commissioner Davids denies this,

ing that the picture were taken while one of his men pointed
. 16 . 1 .
something out to a fellow officer. 0 Cutlines for the pic-

(‘5.
V.

tures included statements such as thes

"Dice disposal machine uncovered by Trooper Ray C.
Valley. . . . Police said dice were flushed down the
trap. Dice rakes were found . . . Police also found
charred cards and dice wrappers. . . . Snooker balls
were mixed hurriedly with chips and cards in an unsuc-

cessful attempt to hide gambling. . "

Other pictures showed defendants sitting at tables which
covered with partially filled drinking glasses, poker

were

chips and cards.

In addition to the lead story and the pictures, the

Tribune also carried a sidebar on the raid in their October

12 edition.
October 12, 1963. "State police Sledgehammered
their way into the county's most frequent1y~raided gag—
bling establishment in Hadison Heights. 'As fa as I'm
concerned theyTre through operating here,’ Davids said."
tee raid "is one of the

Eddie Guarella, arrested during bhv
V members." A shoeshine stand in

t0p530 Detroit mafia
the back room was the lookout's chair. He could watch
all the games at once from this vantage point.

It should be noted at this time that Commissioner
Davids denies making the quote attributed to him in the lead
story. He said in an interview that he never called the
Steren Club "the biggest gambling operation this side of
Las Vegas." He said that he couldn't possibly have known

—*

16Davids interview.

51
' '1 A‘ ' . 0'! fl " ‘v ' “' '
if tae club was the bngBDt gambling operation even in the
fiidwest. A Tribune reporter asked him, he said, if this
was the biggest gambling Operation in the area. "I laushed
v. )0 V

and told him, 'Well, I suppose you could find a bigger one

a
if you went to Las Vegas.'"1’

The coverage of the case by the Tribune continued hon-
day. (The newspaper is not published on Sundays.)

October 14, 1963. Twenty-two me. arrested Friday
night in a State Police gambling raid on the Steren As-
sembly Club were ordered released on 21,000 bond.

"Three of them were linked last week to Detroit Mafia
operations. . . ." Defense attorney Bernard Girard said
upon the release of the 22 defendants, "'After all these
people have rights and the autocratic police have de—
prived them of them.'"

 

October 17, 1963. Felony warrants were issued
against 24 defendants. Eddie Guarella and Joseph Brook—
lier, alleged members of the Detroit hafia, were among
the 24 defendants arrested at what was called by State
Police as "'the biggest gambling Operation this side of
Las Vegas.'"

October 23, 1963. Twenty-four arrested charged
with three counts of conspiracy and three counts of 5am-
bling. Eddie Guarella and Joseph Brooklier linked to
the Detroit Mafia by Judge George ddwards. "The raid
ran the Steren Club) ended three vears of concentratec
effort by State Police Capt. Fred. O. Davids to prove
gambling was going on at the club. . .'"

{\J

a the Tribune carried a story which was

On October
unrelated to the Steren Club raid, but had a direct bearing
on the news coverage being given the case. Judge Edwards
spoke before the Detroit chapter of Sigma Delta Chi the
night before and in essence reiterated the charges he mad

r.

in Washington about the Detroit hafia organization.

17Ibid.

13

 

Daily Tribune, Oct. 10, 1963.

1. ’1‘
17,1:15 * “' 3:137.“ 11m -' '1
‘JL v uuiILu.) -.._‘ .L

T“ rr-. - i V A L - .5 1.1
- f! e ,_ 1" l oun r: C 1131.1 6 {1‘3 - .
_.

'1
C1"
0
*5
H
cr
0

’\ ,-. ,l C . ,. ‘1 '1 - 1
October 24, 19u3. Seor aawards said he could not
ae

‘1
‘
.

 

obtain warrants against t‘ 1 )SPSOUS he named as fiafia
members at the Senate hearings in flashington. Three of
those amed, Eddie Cuarella, Joseph Brook ier and Tony
Randazzo, were arrested in a raid on the Steren Club on
October 11. Edwards described the Hafia. "'The hafia
uses fear and murder as its weapons--murder to disci—
pline its members and to eliminate those who stand in
its way. The numbers racket and gambling are the life
blood of any major criminal conspiracy and there is some
apathy on the part of the city about it.'" ddwards also
noted that the hafia didn't "'kill as many as they used
to,_but they get a lot more mileage.'fi_

November 6, 1963. The Steren Club was ordered pad-
locked by Oakland County Circuit Judge Frederick Ziem.
Two men arrested there,_Eddie Guarella and Joseph Brook—
lier, are alleged Nafia members.

The preliminary examination began on February 4 in
Farmington Township Justice Court which, for the purposes
of this case, had been moved to West Bloomfield Township
Hall to use a larger courtroom. Michigan law provides that

the preliminary examination does not have to be held in the

,3

city or township in which the offense occurred.

February 4, 1963. GAMBLING S’SPBC s FACE his;
GIRL. "A tall, attractive brunette described as a
lice spy came out of seclusion today to testify at the
examination on gambling charges of 24 a1 aged Operators
of the Steren Assembly Club in Madison Heights." Two
of the Operators, Eddie Suarella and Joseph Brooklier,
have been linked to Mafia. eggy Allen, the agent, was
taken to the club by Joseph Sabina, who was killed in
an auto accident in December. "'Davids (State Police)
said his men investigated the mishap and were satisfied
that it was an aocident.'" Assistant prosecutor Templin
said that Miss Allen "'had been threatened on the phone
several times since October. . . .'" Defense attorney
Carlton Boeser asked Justice Allen Ingle for a change.
of venue because of "'the notorious publicity'" the case
had received. Ingle said he very seldom read the news-
paper and watched only "'Jagon Train on TV.'"

Februarv 5, 1964. EVIDENCE, PUBLICITY ENTER GAMB-
LING CASE. Defense attorney Carlton Boeser said the
oress coverage "'was designed to inflame the Judge. . . .

 

53

Assistant prosecutor Robert Templin said,
per articles have been fair and accurate . . . the issue
has no bearing on the de ezdcnts guilt or innocence.'"

" rm . .
',’.t1€ 0.3113313-

In the February 4 story in the Tribune mention was

made of Joseph Sabina and his death in Ontario, Canad .

Davids was asked during an interview if he had initiated

~ ’1

the line of tiiou3ht that Sabina's death might have

00 O ”f
wk)- -_§s ‘~ -

U

auto accide t (i.e., a gangland evenge

thing other than an n
1’ v 1 1 1 .,
killing). 1e said he nae not. 9 He said that reporters

queried him about a possible plot against Sabina so he sent

two men to hindsor, Ontario to check the accident report
made out by the Ontario Provincial Police.

1" :6

Throughout February and March the Tribune covered tab

examination closely publishing 33 stories on the proce edin3s.

host of the stories dealt with testimony given on the wit—

ness stand by Peggy Allen and State Police officers.

and

On March 10 the Tribune reported that hiss Alle

. 20
State Police were being sued for d100,000. The newspa—

prosecutor Robert Templin
"21

are reported that assistant

'0

called the suit "an intimidation plot.

Peggy Allen left the witness stand on March 19, 1964.
harch 20, 1964. SHALL SNILS SURVIJSS A3 POLICJ

SPY ENDS OBDEAL. The role of the e:ure, attractive

brunette has been a tou3 h one as she stood up to the

"sarcastic" questioning of Carlton Boeser, and to his

implications "about her sleepin3 in motels.”

“a 5, 1964. Attorneys are eXpected to argue their

1“ "

19Davids interview.

20
See page 47 of this report.

21Daily Tribune, March 10, 1964.

 

 

54
cases on June 1. doeser eX1ected to make a motion for
a chan3a e of venue. "The attorney contends the adverse
publicity made it impossible to receive an objective
examination."

The hearing was delayed many more times and did not
resume until August 12. An explanation for the continual
delays can be found in the procedural rules of the 110113 n
judicial system. Appearances in higher courts, such as cir—
cuit courts or federal courts, take precedence over lower
court proceedings. Consequently, if any of the partici>ante.
in the preliminary e:<a:ination, which is a lower court pro-

eding, was seieduled to appear in a hi 3her court, the ex-
am nation had to be postp ned.

Roeser's request for a chan3e of venue was denied on

”2
August 13.“ The Tribune covera3e continued.

August 26, 1964. In an interpretation of a tech-
nicality raised b defe se a torne Carlton Boese‘, Jus-
3:-

Y

tice Allen In,le drOpped two of the six charges against
each of the 24 defen1ants. Assistant Prosecutor Robert
Templin told the press, "'This statute has been in ef-

fect since sometime in the 1800' s. Never before has

this interpretation of it been made.'"

$T'T‘r-“1 \:d

September 16, 196#. S PERSN CLUB THBIL £1 ”Lfii 1;
FINALE JITi POLITICALc RESCENDO. The Steren Club 0:53
has "all the elements of a Perry hason thriller." The
case began with a ”police raid followed by the shoutin 3
of Opposing attorneys. Throw in an attractive police
spy and the story's read y for prime viewing on televi—
sion." Three of the principal participants are running
for public office.23

September 19, 1964. Three defendants are released
by Justice Allen Ingle. Charges against 18 other are
reduced from two counts of conspiracy and two counts of
gamblinz to one count of each. State Police Capt. Fred-
erick Davids said, "'I am disappointed to see three key

 

55
peeple in the Operation released.'" In a prepared

statement for the press Justice Ingle said, "'Templin
made untrue statements to the press about my rulings.

He failed to present an adequate prosecution by not al-
lowing State Police to testify enough. His written ar-
guments were inadequate. . . . It is amazing to me that
with all the information the press had, why more evi-
dence was not presented in this court. . .'"

In a recent interview Justice Ingle confirmed that he

‘

had made these statements to the press and added that in

‘

his Opinion they were consistent with good judicial de-

“4
meanor.‘

The defendants were arraigned on September
between this date and Earch 29 196 the Tribune published
: ___________ .
nine stories on the proceedings.

Rarch 29, 1965. Circuit Judge Stanton Dondero up-
d Justice Allen Ingle's ruling which freed three de-
fe dents and reduced the charges against 21 others.

April 27, 1965. Defense attorney Carlton Boeser
filed a petition with Circuit Judge Stanton Dondero to
move the trial out of Oakland County. Dondero said the
request would be considerer. Roeser said he was agree-
able to move the trial to Wayne County or "'anywhere
outside the Daily Tribune circulation area. Iou can't
blow your nose in this case where there isn't a Tribune

story about it.'"

Kay 11, 1965. CHANGE OF VEN’E GHANTED. ihe re-
quested change of venue was granted by Judge Stanton
Dondero. “'I feel this case should not only leave this
county, but the whole metropolitan area,‘ Dondero
said. . . . 'Nith 21 defendants and wit the fact so
many persons involved are located in or about South Oak-
land County, the papers picked it (the raid) up as a
news item. It would be extremely difficult to find ju-
rors who have no feelings of some kind about this case.'“

hay 15, 1965. Hanistee selected as site for Steren

 

24
Interview with Allen Ingle, former Farmington Town-
ship Justice of the Peace, July 21, 1966.

2 . n .
5Daily Tribune, oentemeer 28, 1966.

L

 

 

 

5:3
trial by Su»reme Court Al'i strator her-:dith Doy,le.
This is the norm procedu ure in selecting a new site.
Carlton B oeser said, 'we re pleased with the site.‘

In a recent interview Eoeser said hanistee was a ter—
rible place to hold the trial and denied ever sayin; that
he was pleased with the site. His explanation for the
quote: "The reporter probably needed something to put in

/
his story that day "2°

(D

Th e County.

(D

Tribune is not circulated in hanist
Thus, its reports on the proceedings after the change of
venue was announced had no bearin3 on the \3niste ju

The ne wspa aper did send a reporter to he niste e for the dura-
tion of the trial and provided covera3; e of the proceeding; 3
for local readers.

The Pontiac Press, with a circulation of nearly
75,000, is distributed primarily in the northern half of
Oakland County.27 According to managing editor Harry Reed,
Kadison Heights is out of the Press' circulation area.

It is a policy of the Press, according to deed, to provide

only minimum local news cove ra 3e of stories which occur out-
00

side the circulation area. “Q The newspaper is published

six days each week, and carried 25 stories on the Steren

case.

 

26Interview with Carlton doeser, July 8, 1966.

27Newspaper Circulation Anal ysis, 1960- 65, Vol. VII
(Slcokie, 111.: Standard Rate and Data Hervic Inc., August,
1954), p. A16#.

28 . . .
Interview with Harry Beer, managing editor, Pontiac
Press, July 21, 1966.

57

The ress be s1n its cove r33 e of the raid with a story

from the Associated Press.

October 12, 1963. AP-—Police raided an alleged
3amblin3 spot in Madison Heights arresting #9 persons,
'two of whom have seen name d before a S.enate committee
as Katie members.‘ Capt. Mr derick Davids, commander of
the raid, called the Steren Club, 'The big3est33amblin3
opera ation this side of Las Vegas.‘ Eddie luarella named
by Judge Geor3e Edwards as a 'Lieutenant in tie hafia in
Detroit.‘ Joseph Brooklier was described as 'a section
leader, the lowest rulin3 echelon in the Nafia hierarchy.'
'There's no doubt thgt this is‘pa art of the over— all crim
conspiragy in the Detroit a ea,' Davids said. United
States Immigration :pervice agents who participated in
the raid said 'some3persons arrested are being investi-
3ated in re c1ard to possible deportation.’ A detailed
description gLof the clue completed the story.

 

October 14,1963. THREE FACE COURT; SAID IN 1 FIA.
United Press International--'Three men named by Detroit
Police Commissioner Georee Edwards as hafia members were
in jail today awaiting arraignment. Eddie Guarella and
Joseph Brooklier, named by Edwards in testimony in ’ash—
ington are among 43 persons arrested in a raid on the
Steren Club and are awaiting arraignment. The third

Hafia suspect was arrested Saturday on a charge of steel-
in3 television sets and is not connected with the Steren

raid.

t

On October 15, 18, 19, and 22 and November 16 the
Pre as used stories which traced the pr03ress of the proceed-
ings and on each occasion note the link oetve en the iafia
and suspects Guarella and Brooklier.

February 5, 1964. Peggy Allen was mentioned in
testimony at the preliminari examination. She was in-
troduced at the club by 'known gambler' Joseph Sab_na,
who died in an auto accident in Ontario in D c-mrber.
'Two of those arrested in the raid on the S ren Club
were named by former Police Commissioner Ge 3e Edwards
before a Senate Committee as leaders of the la
§yndicate in the area. The two are Eddie Guar
and Joseph Brooklier. . . .'

a
te
o
la CPiHG
11a . . .

February 6, 196h. State police said Fargaret Allen
'spied' for them inside the Steren Club on thre occa-
sions. Two arrested in the rai were connected with the

.7: 7
J ..;

Press coverage slackened and only three stories up-
/ r‘ . , .-. _. / ,
peered between February 7, 1904 and september 43, leju, th;

day of the circuit court arraignment.

-Jo

September 23, 1964. Arra-3nment was scheduled to—
day for 21 persons in connection with what State Police
called 'one of the richest gambling operations east of
Las Vegas.'. . . Police confiscated about $15,030 in the
early evening raid last October 11, but claimed the al-

ege _gambling_operation_grossed 'in the millions annu-
8112..

 

Five stories appeared between September 2“ 195U and

7’
April 8, 1965. Then on April 9 the newspaper published a
comprehensive account of the case, including the Mafia con-
nections of Guarella and Brooklier, and listed each post-
ponement in the proceedings and the reason for the delay.
The Press coverage continued on April 28.

April 28, 1965. Defense attorney Carlton Roeser
petitioned the court for a change of venue and suggested
Mayne County, 'because it would be convenient and econ—
omical to all. . . . It would be impossible to get a
fair and impartial trial in Oakland County because of
the notorious and sensational publicity given the case
by the news media,‘ Roeser said. The attorney submitted
a scrapbook of 1&0 newspaper articles to the court and
said ‘All these have bia ed the case of the defendants.‘

hay ll, 1965. GAMBLING TRIAL wILL BE MOVED. The
change of venue was granted by Judge Stanton Dondero be-
cause of 'notorious and sensational publicity given the
case by the news media.‘

Lay 15, 196 . GAMBLING TRIAL TO BE IELD In KAY 3-
TEE COURT.

The Pontiac Press does not circulate in hanistee
County and consequently its coverage of the case beyond the
Change of venue has no effect on this study.

The Detroit Free Press published 2U stories on the

Steren case from the night of the raid until the trial

59

ended in Janistee. The newspaper has a circulation of

(N

A . 2 vi fl
59,939 in Oakland County and 77b in Lanistee County. ’ nor

\J‘u/

nearly five months during the proceedings the newspaper was

L

not published because of a labor dispute.
The Free Press was the first of the metrOpolitan pa-
. 0
pers to get the story of the raid.3

October 12, 1963. #5 ARHSS'SD AS POLICE CRASh PAD—
ISON HEIGHTS SPOT; GAHBL NG SPOT IS 'BIG TINE.’ A hai-
ison HeightsAgambling_spot--where previous arrests have
snared men named in washington Thursday as members of
the hafia--was raided Friday night. . . . State Police
Capt. Frederick Davids said 'It's the biggest operation
this side of La Vegas.‘ EcConnell (Lt. Raymond thon—
nell of the hichigan State Police) said the gambling
spot specializes in cards and dice. . . . Police called
it the biggest Mafia interest next to the syndicate's
floating arbut game which was chased out of Detroit
several months ago. . . . Davids said this game was the
same 'big operation' formerly in the estle in Farming-

 

 

ton, which moved to Windsor after police raids, and
shifted from there to three different locations in Osl-

land and Jayne Counties. 'This game has no limit,’
Davids said in describing the magnitude of the Operation.

October 13, 1963. Twenty-two men, including two
named in Congressional testimony as leaders of the -e-
troit area fiafia underworld organization, were held in
Oakland County Jail . . . to be charged with conspiracy
to violate state gambling laws. A reputed hafia leader
was among those charged with frequenting a_gambline

454

place. Eddie Guarella and Joseph Brooklier face con-

spiracy charges while Tony Handazzo was name as a fre—
quenter. Guarella is reputed to be a Mafia lieutenant,
Brooklier and Randazzo are allegedly section leaders in
the Mafia. Scores of packets ofyplaying cards and poker
chips, plus $20,000 in cash were confiscated during the
raid. But the dice had been disposed of, according to
Davids. . . . Davids said two pockets of one of the
pool tables (found in the club) had sponges stuffed in
them to keep the dice from falling through.

 

Two more stories appeared in the Free Press prior to

 

29Newspaper Circulation AnalySiS . . -: supra “Otc 33’
pp. A163, triléflo

30

See page 48 of this report.

Fe eru ry 6, 193%. A beautifu 23- year- 011 stenc—
3rapher for the State Le3islat1re ”\dnesoiy said she ii
not hesitate to become a spy for the State lolice last
fall because 'I thought I MiDUll co— Operat e.‘

February 8, 93%. Pe33y Allen identifi e3 12 of
the Eu defendants arrested in the raid on the Steren
Club. Two of the 12, jddie Guarella and Frank Jon: lito,
50, of Detroit, 'have been called icnbers of the Cosa

 

Nostra or Hafia operation by Detroit Police.‘

The Free Press published stories on the preliminary
examination on February 20 and torch 19. The next story on
the case ’idn 't avpear until March 0 1965, more than a

i !
year later.

Karch 30,1965. Circuit Jud3e Stanton Dondero
charred that the pr osecutor' 3 office was 'foot dra33in3'
in the Steren Assembly Club case.

Kay 15, 1965. GAMING TRIAL TO 33 SHII7 970 ro xixis—

33. Judge Stanton Dondero a3reed to move the tr" 31
out of Oakland County because of widespread publicitJ

in the Detroit area.

Because the Free Press is circulated in Xb.istee

 

County, stories which were published between the time of

1 w
tne cqan3

()
O
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g
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(c;
H4

been selected will not be considered for the ourposes of

this study.

July 20, 1965. STAR WITNESS' TRIP EAST “3 33:73 A
EGAL HASSLE. An unexeected trip to New York by Pe33‘
Allen tri333 e a 'bitter exchan3e etieen Os kland
County Prosecutor S. J81

“ome Bronson and defense attor-
ney Carlton doeser. . . .' 'She is a woman,‘ Bronson
said, 'and a woman of normal stature would have caved
in long a3' under the pressures she has seen subiect;d

 

 

 

.Eg.‘ Bronson did not elaborate for the rec01d, but 23
made it clear that he feels she was intimidat ted. hiss
Allen hers elf said . . . that she has be en threat-
ened. . . . Ihre of the men arrests ed in the Steren

 

Club raid have be:n linked to the he afia. Roeser

labeled her 3i 1 pesrance e {publicity stunt to try
this case in the neasgaiers ins tead of the courts.‘

Two more stories were published in the Free Press be-

 

fore the trial started, but neither h3ve 3 significsnee to
this study.

The Detroit Hews has the l3r3-3st circulation in 03k—
land County of any deily namepaper. i-T-earl=r 30,033 familie~
recei1ve core ies of the pa

r . , . . . ”l
and /42 00pies of the Jews are Circulated 1n Aanis t33.’

 

ier e3ch 13y in the suburban county,

The news 3lso f3ile . to nublish for about five months during

the tmio-re3r swan of the case, but still published “5 stories

from the time the raid was held until the trial ended

The cove rage by the News began on October 1213K}.

/ I

October 12, 1963. 49 ROUNDED UP IN PLUSH CLUB.

 

State and local police . . . snas‘s ed their way into a
blush hadison Heig Mt zambling nlace last nit ht and 3r-
reste dEQ persons, including th 33 .en named by Police

 

Commissioner Edwards Thursday as members of the fiefia
crime consfire cy in Detroit dddie Guarella was named
by Edwards as 'a lieutenant in the Detroit Eafia hier—

 

archy,' Joseph Brooklier as a 'section leader,‘ and Tony

Randazzo as 'a section leader.‘ Davids said the ”teren

J -

 

Club 'was the biggest o eretion this side of Les 73333.
There is no doubt that this is part of the over-all
crime conspiracy in the Detroit area.' The Immigration
officials said 'a nunoe-r of those arrested were under
inve sti gation for gossible deeortation.’ D3vids des—
cribed the moments as the police bro {3 down the door.

'Some Operators were still panting :rom their hurry to
hide the gambling equigment, but we found numerous dic
wrappers. . . There were no limits on the dice t3bl
all bets would be covered by the house.‘

‘3
.1
N”
.1 i.)

The liens published two additional stories on October
12. One listed the names and addresses of all those ar—

rested and the other described how Davids had scent 10 years

 

31Newsgaper Circulation Analysis . . ., sugra note 24,
pp. A163, A163.

’

* o

.)..,
of investigation ”ttoflfitln to stoy the "gambling Operation."
"1 can go home happy this morning," he was quoted as .1flx n3

October 13, 1963,3310 PULLS A 'T” 3:: 13 SIDE on
SUBU33'—-3AHBL£RS 333 FOR TiRJS £3A33. The City of
Hadison Heights had b3en attVJLoin to close the club
for th ee years. Three men wit: alleged Iafia connec—
tions were arrest 3d there Friday night.

October 15, 1363. Twenty-two persons arr3s
day night relea ed on 31,000 bond. Two of these
have been linked to the Kafia.

tei Fri-
oe rsons

October 22, 1363. Twenty-four oersons arrai*r-31 on

)L‘ ‘I\

October 21 before Justice Allen Ingle. Eddie Guarolla,

 

 

'reputed proorietor of the Steren Club,' and two others
arrested, Brooclie r and Bandazzo, allegedly have Cefie
connections.

"ovember 6, 1333. The Steren Club was ordered 13r-
1ocked or Jldge Frederick Ziem. Three men arrested
there are reguted Iafia leaders.

 

The preliminary examination began on February 5, 1964,

and the News published 19 stories on the oroceedings during

February and Harch. Include: were thes

V

(0

three stories.

February 5, 1964. Peggy Allen appeared at the hear—
ing under police guard. She did not seen nervous eve n
when associating with the d fendants, 'incluiing ren

 

whogpolice se yfare iafia leai ers.’

February 7, 1964. TIAFIA SUSPECT IS PAH 3D IN STSTSH
GAMBLING CASE. The name of an alleged Hafia jndicate
leader was in the record today in the Steren Asseuilr
Club gambling case, linied with identifiable money which
State Police say they planted in the club. Eddie Guar—
ella we 8 lin1<3d with the money found in the club after
the raid. Detroit Qoli 03 listed the 45—; 32P- old Guerella
before a Senate Committee as a etroit Hafia men
the rank of '1ieutenant' and with a record of 3333339
activities.

February 14, 1364. Peggy Allen testified that she
lost 3500 in two nights of gazicling at the Steren Club.
She pointed out Eddie Guarella as one of the “on at the
club. Police say Guerella is 1 Hefia leader.

 

The Hews ran a story on June 30 in which Boeser crit—

‘VUV

icized the State Police for "overd rane mt zing the activities

of a private social club." the next story appeared on here;

n ,_ - . -n-=-:..-‘ ~.-3 - 1 I: ' -
~ 13/5. Two more stories appegrod in tires and then on hay

19, 1965 the Ne we published a story which r3port31 the the

 

change of venue was "ranted and the trial would begin on
July 22 in fianistee. Tie News cucted Judge ” anton Don1ero
as saying the raid received "too much notor ety in the metro—

politan Detroit erea.

The Te we broke the story that Peggy Allen had gone to

New Iork on July 19, 1965.

July 19, l965. Peggy Allen had fled to New York
after being under what Prosecutor 8. Jerome Bronson
Called 'tremendcus pressure. A lesser woa.ian would have
caved in long ago,‘ Bronson said. Carlton :oeser said

'her departure was an attempt to get more cad publicity

for the case.'

. WITNESS TELLS WHV SHE FLE . Her
t with frustration, bitter disappoint—
(3

July 20, 19
ar eve since testinony, She said

life has been

malt and sometitn f

She had been thr tene 1 ‘ner family had been threatene1,

she broke up with her boyfriend, she ] ost her job and
dra “red throujh the mud.

3.3V

5.).A.~\_L.

/

>5
SS
183
93

U

3.. 1‘13,~
her name fiat 030

c1-

The News had located Per”' Allen in New Zork Ci y an1

JKJQ

L.
(‘1
(0
04

cr

.3”

elephoned her to set the material for the story relt'

)3

The News sent a reporter to Nanistee and published

£3

bo

<
(0

10 stories during the trial.

This brief survey has been a sample of the publicity
given to the raid on the Ste ren Assembly Club by the four
daily newspapers which circulate in Oakland County. How

much of this material could be considered prejudicial by

standards suggested in Chapter I of this thesis?

On page three there appeared a list of eight "types"

of publicity generally referred to when the press is accused

Ci“

n x -. - . . , V, .' 3‘:
OI undermining tae r131

were:
l. Publicity ;iem ending the arrest of a suspect 03 or3
police have gathered sufficient evidence.

2. Printin3 a confession wh101 is not 11tr071cc1 into
evidence or which is later dete rtnin ed to have een involun-
tarily given.

1 Printing denunciatory interviews with the victin'o

/.

family.

\
v

U. Interviewing the public before trial on the ques—
tions of guilt or innocence and possible punishheht.

5. SXposin~ a defendant‘s prior criminal record eith3r
before or 5 ing a trial.
6. Printing inflammatory evidence which the court
would not allow to be introd cuced .

7. Linking the defendant with other crimes or portra3—
ing him as a hoodlum or a gangster.

8. Printin3 the personal feelings of the police or
prosecutor or other par rticipants in the trial.

There were no instances in which material as described

(0

in ca e3.ories one throu3h five w1s publicize d. Some stet
ments were made and pictures taken of mate rie l which the
court did not or might not have admitted as evidence. (Cri-
tics point out that it is not known what the court will ad—

mit as evidence until the trial is underway. Consequently,

all material or tes ti.ony which might be used as evide no

(9

should not be public cized until the court rules on its admis-
sibility. ) The pictures and outlines used by the Tribune
and descriLed on page 50 would fa 11 into t‘nis ca te‘ory. The

fact tiat 3oker chips and cards were confiscated, as noted

 

ally Sullivan, Trial by Newspaper, suora

' 4‘ {a r 1A
a) 3-3 v .) .1

 

cat33ory. It is fair to say, then,

L- -\,- 1
statements enc

pictures

tus would be considered

.111 ‘ 1 - :1 '..‘ f '
I) . -3 f’fi,’ ‘ 1 fl {—1
.gt’luz Lfil '-JEJ‘J\L 123. .L J.

noted enu: rable timgs

conside prejudicial

It is conceivable

gory seven.

ment that the Steren Club was the

tion this side of Les V33a as" noted

places would also fall into this

be true for he references by the

son Heijhts gamblin3 place"

story would
that nearly

concerning a

connections of
would certainly
applying the criter
that Davids'
"bl 8:3 St
on
cate3ory.
pre

or the "

also fell

: .L.‘,'
LIltO {311$

311 the
-4 .Av

" I V»(" 5-
_._‘J '71:.L‘14113‘
w w ‘1
-.~ A.» anfi
1' SL'J‘JU list)
L’ f t“ " L
3 . .3 9"". C? 1'.) 5‘
b.1rv3 O ilv £311-) Jizclyllj

be the type of renrrc

c r 0" La
1a stated 13 cat3—

alleged state—
;amaling opera-
and other

to the

U)

S

V " 14. -.". ' -.
Ifiadison heijhts Tanelin;

—‘

house" lis ted on pages 43, 61 and other places. The state—
ment that the Steren Club was "part of the over-all cri 3
conspiracy in Detroit" as liste J on 333es 57 and 61 also

1‘ , '4‘ ‘
The same 10510

would qualify.

ments. If the operation was part of
then persons participatin3 in the 0p
Critics point out that this must be

same logic can be enrli d to us

'
n3 1’31 ’3
49;) l-JS

proven in court.

of the

to all these state—

a cr'ne conspiracy,

eration were criminals.

The

tern "gambling

house" rather than the qua lifi3d "alleged 3amblin3 house."
If a buildin3 is a gambling house it is supposedly assunel
that gambling occurs in the building and the persons inside
are 3anblers. And this also must b? PPOVSU in court, crit-
ics point out. There are fla JS in this tmr e of logic, but

f /’
.‘““)

94.x

"\ - 2" ~ . 2' 3w .* 3" 4— . v H fl ‘ '\‘ rfi“ ? r V ‘I ‘3
for tne gUPgOSB oi tiis tarticul2r section 31 big std“; a;

Thgre were numerous cc ”_:sions when the police, i22-
yers, witnesses and even the jud33 2} {presses pers'nal feel-
ings outs'd: the courtroom on matters having to 60 with t1?
case. Commissioner Davids’quoted comments on the size of
the alleged 322 311W oner2tion are persOW 1 ooinions. On

’W.‘ ‘H
"J'Lrald 3X

51 defense attorney Eernard r ssed an Opin-

23'
( J

ion about the nolice. On pare 53 assistant prosecutor Ten-
plin called the suit 332inst P333y Allen a d the State Po—
lice 2n "intimidation plot," a personal Opinion. L so

on page 55 Justice Ingle's comment that Tenelin he; pre—

sente d an inadequate prosecution is another personal Opin-

ion. There are numerous other examples.
Using the standards set forth, a great deal of alleg-

edly orejudicial information w2s published during the two—
year Span of the proceedings. Attorney Hoeser used these
standards uhen he asked for the change of venue. But wh2t
happened in hanistee when the announcement came that the
trial would be held in the SW 11 western Uichigen town?
hanis tee County is served by three daily newspaoers.

A total of 1,500 cepies of the Detroit News and the Detroit

 

£333 Press are circulated in the county. The famil es which

(3

‘
8.7.13 11’]-

d to the

0')

received these neWSpapers had bee. 3x103
formation which Oakland County subscribers cived. The

tanistee News Advocate is published six times each w3 3k 2nd

3311V3rc3 to 9,703 homes 13 the community.“

are

‘

only 19,000 r3s133nts 1n the county, it is 9 f3ir assung—

tion thst nearly cvsryons saw copies of one of those thrsg

news

119113r8.

‘1

The iésws Aivocst 3b339n its cOV3r¢:3 of the Steren

~43)"

 

case on July 19, 193 .

July l- 1965. BIGGEST JU2Y PAIEL 3333 CALLED F
POIITIAC CASE. Th3 tris1 was ocnwul 3 to 033in on Ju
27 after 03 in3 transf3rr33 from 0.9kl n3 County whsri it
was b3113V33 tia the dcfsnisnts coull no; 3st 9 fsir
trial. Three persons arrest3d in t‘ne 1933 r913 were
named in testimony oefors ths U. 3. Senate Crime Commit-
tee hearings on ozganizsi crime in Detroit as 1393crs
of tho Rsfis. . . . Two of the 3cf3n39nts facing con-
_§Qiraclich9rgesl_33313 Gu9r3lls and Jossp‘n BrooklierL
were montioncd in tho crims commission n31rings. Thssa
two men are believed to be 13993 9 of the estroit isfis.

July 20,1955. UPI. STATES STAR wITNESS PL333
The 39 9rtur3 of ch3y Allsn touch3d off an ex-
change of scouS9tions be tw331 ti3 33f3nss and the pro—
sscution. 'Sho should flow: chvafi in lonv 930, ' Prosecu—
tor J3rome Bronson said. The or053cutor 591:71h3 thougnt
Niss Allen h93 bzen :_3ssur33 :n3 tir=~t 113:3.

STAm

“
I
_-..J.

 

On July 21, 23, 24, anfl 27 the Bows 93v oc ate publishai

 

stories on the progr3ss being made in sslscting 9 jury. In

each story 9 summsry of the cass woulc os inoludo3, but only

. 4—, ' p . ‘ ‘ 1 ‘ "I .1. If . ~ ‘ __. ‘1. " 4. “ J. . ‘ " .3
“3 was tns n9119 conn3ction of tat tho 33f3nssnts u3ntions .

JUIy 3 1965. Attornsy Czrlt on 293

2 , s I
Freie‘ick 3139 t move he case back to Oakl

His motion, w1ich he S913 he 9933 to oxpsdit3 s3
a jury, was $1133. H20 ssr also move 3 that the
jury panel b3 31sm’ ssefi because of an utmosnrora OI
'fesr' 9nd prejufiice which ha 0191333 999 to be founz
in the community occsusz of articlcs in ths D3troit
newspaperi 9nd in ths isnistas I st A3VOC9t3 an: b3C1us
of local gossip. This motion 138 denied.

After summoning 289 potential jurors to the COUPth 9:33

3310'

.3wspapcr Circulation Analysis . . ., p. 9163.

Q {L
a jury was finally selected on July 3? ani the triil began.’
Peg3y Allen iotur n31 from her trip to flew Kerk in time to

testify for the state. On August 9, 12 ieys after the jury
selection, the case was turnefl over to the eLg‘it vows and

four men for a decision. On Ai3ust ll the juryc co ple tei

In

its fleliberfition sni found ell 20 defenflants guiltgr, thr
on two counts of conspiracy to violate state gambling lens
and two counts of violation
on one count of each charge.

On September 10 all 20 defendants were sentence? in
Oakle nd County by Jucze Zien. Three men, including Zfldie

Guarelle, were sentenced to two to five yeers in :rison;

nine defenfients were sentence to one and one in if ye

l‘)
.
>4

P

(I)
l

r “
5.)

prison; four men were sentenced to one to fi e years in pri-
son and four others were put on probation for five yosrs
with the first ninety days to be spent in jail.

As of Seotem er 1, 1966, no one has been or is in
jail. The convictions are being appealed by Carlton Reeser

w

on the ground 8 that the ouhlicity in the case made it in—

possible for his clients to receive a fair trial. The first

i; n ‘J

motion in the appeal will be heard by Jud3e Elem in

It hai taken nearly a W131i to select a jury from the
residents of this small testern town suoposedly isolated

from the publicity on the Steren case. The primary cause
BUMenistee News Advoce ,July 23, 1955-

qr.’
d Ibiflo’ AUZUSt 1]., 19650

O 4‘— -~ r . fl 3 . r- ‘1 ‘ L ". L- “ ‘1. - ,-x ‘l ‘ a" P: i“ “
ior Lflreilifilcu inrzais tiet LKXSo yfibgnolgl jiuwnnsiiil _r~

because they hed already formed in opinion as to the guilt
or innocence of the defeneents in a crime which allegedly
occurred 300 miles away. Only five of the “C9 juro:s 1133
had never :ieerd of the cased}:3

Wwo things hed heavened. First, publicity through the
orinted me dia precedes the trial. 3oth Detroit pepers cov-

ered the pretrial period extensively. Then, nine days be-

fore the trisl was scheduled to open, the Kenistee Tens Ai-

 

vocete began publicizing the raid and the upcoming trial.
An incident which had occurred in e county across the state

he: sudlenly become local news for Kenistee readers. while

"I‘

04
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c Kafie, it told

readers of the allered threats 33°inst e“3y Allen, 3 i it

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also conveyed to ree er. 1 imoression that the Steren Club

A.

.-)
( 0

2323 e bi3time 33w bling Operation.

In addition to publicity through the printed nress
the news about the Steren Club trial can reasonably be as—
sumed to have spread throu3h the county by word of mouth.
This was a big event in the history of the smell rural com-
munity. Professor of law Gerhard O. H. Hueller once painted

this picture of the process of justice in rural America.

 

o 3’
J'Inte rview with Frederick Zion, juffe Oakland County

Circuit Court, July 21, 19.)5.

1UP“.
infill].

(‘1 ".
-A L J K &

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ctne a carnival

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lL‘th ce .

t

n

cal bonrd o:

merce cleined the triwl as n tourist 3ttrection, "somethin'
:3
no other ity can Clfllfi."Jv Hotels and hotels u re fillei
to capacity. "It's like 1 re is e conv ntion in town,"
"I
one motel own] r S: d.3’ Businessmen seid they believed tte
tr'el would gut the town on the map. Residents visited the
ccwu thouse on their luncn hours end drove ptst tre hotel it
h".
.. . , “(.4
night to see the cefend3n s Sitting on tie front porch.
"Word ’38 Spreed throu3h the community that soae 'Detroit

amblers' ere on

There

also has been ’

.2

wi:zesgreiu

 

 

talk of 'or3anized crime end the hefie,'" one Detroit news—
3 ,. 41m, , 3,1
on wrote fr m u3n1stee. lae publlCltf obviously a fecteo
37Gerhard 0. w. ”ueller, "Problews Posed by PuFchxty,
Ls' 1; .e A:i t's'i3 a ( fled F’e 5s
Publi iiqg;L Snterteini ntL ve rti lT nl All) 1 1

LC» 1"

guerterlg,

63
D

J (Jinee,

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4-,):

etroit News, Jul‘

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O 01 f .1... S C C N f .3 .J

CHAPTER IV

PRETRIAL PUBLICITY IN ONE COUNTY--
THE STEREN CASE IN BETBOSPECT

As it was stated previously, this study is designed to
focus on the problem of pretrial publicity in one county.
While one particular case has been selected for this study
it should be remembered that this case is by no means typi—
cal. There are no statistics available which tell the per-
centage of cases in which a change of venue is granted.
Most persons would ag ee, however, that the change of venue
is the exception rather than the rule. This is primarily
true because most criminal cases don't receive the amount
of news coverage which the Steren case received. Conse-
quently an atypical case in point has been used to study a
problem as it exists in a single county.

To add a greater perspective to the study a series of
open—ended, non-structured interviews was conducted. The
interviewees, with a single exception, were newsmen, lawyers
or Judges who are a part of the press and legal systems
which serve Oakland County. Many participated directly in
the Steren Assembly Club case. Others did not.

The managing editors of the four daily newspapers
which serve Oakland County were interviewed. One police

officer was interviewed, the director of the Michigan State

72

73

Police, who was in command at the Steren Club raid. Two
other law enforcement officials in Oakland County expressed
views and outlined policy in personal letters. Four attor—
neys were consulted. One is the prosecutor of Oakland
County who prosecuted the defendants in the Steren case.
Another was the Justice of the peace who presided over the
preliminary hearing for the defendants. The remaining two
are leading defense attorneys in the county; one acted as
defense counsel for the Steren Club defendants and the other
was an Oakland County assistant prosecutor for five years
before beginning private practice. Three Judges were also
interviewed. Two of these men are members of the Oakland
County circuit bench; one presided at the Steren Assembly
Club trial. The third Judge is the Chief Justice of the
Michigan Supreme Court, the highest Judicial officer in the
state.

Questions asked the interviewees related both to the
Steren case and the free press-~fair trial conflict. Their
answers provide a more complete picture of the administra-
tion of Justice and the promulgation of news in Oakland
County.

Carlton Boeser, the attorney who defended the 21 men
arrested as Operators of the Steren Club, was the most out-
spoken on the subJect of free press and fair trial. ”The
problem of pretrialgnflflicity is not caused by the news media,
but by the source of the material, usually the police or the

prosecutor. It is the fellow who supplies the sensation to

74
the newspaper who is the problem," Roeser said.1 The at-
torney said that he believed the publicity about the Steren
case in Oakland County and later in Manistee had hurt his
clients. "I believe that newspaper articles can influence
a Jury. I believe that the news media molds public Opinion.
And the law enforcement agencies consciously use this power
in an attempt to get convictions," he added. The attorney
was asked if the change of venue helped in the Steren case.
"Not at all,” he said. "I wanted to go to Wayne County, but
the prosecutor wouldn't agree. hanistee was a fluke. I
didn't like the choice. In the Sheppard case 13 of 71 po—
tential Jurors were excused because of preJudiced views.
In our case 66 of 200 were excused for this same reason.”
(The actual number excused was 65.)

Boeser places most of the blame on the news sources
rather than the news media and said he believes the only
answer is a law, Specifically the Morse Bill which makes it
contempt for a government employee or defendant or attorney
to make a statement to the press. The attorney said that
he hoped the Congress would pass the measure and the Michi-
gan legislature would adopt a similar law. ”One of our
problems is that many of our 'court officers' are ambitious
men, seeking higher office, and like to get all the publi-
city they can.” He noted the three participants in the
Steren case who were seeking higher office and were mentioned

in the preceding chapter. ”Another problem is that the

 

1Interview with Carlton Roeser, July 8, 1966.

75

reporter deals with the police and prosecutor every day.

In a sense, the reporter needs these good contacts to do
his Job. Consequently he is more likely to print what the
police and the prosecutor say. On the other hand, he may
see the defense attorney once in his lifetime. He doesn't
need him," Roeser said. He agreed that statements were
made by defense attorneys, but not frequently and these
statements were usually to offset something the police or
prosecutor had said. When asked if Canon 20 of the Bar's
code of professional ethics prohibited statements by attor—
neys he said it was designed to do that, but it was not en-
forceable and should be rewritten.

Roeser said some of the most damaging publicity about
the case had to do with the alleged Mafia connection of
three defendants and the size of the gambling Operation, as
described by Commissioner Davids. Boeser said no evidence
was introduced to substantiate either of these claims, yet
the peOple in the county were aware of these charges even
before the warrants were signed.

The attorney said that the tools available to the
trial Judge, voir dire, continuance, change of venue and
others would be adequate to insure an impartial Jury if the
Norse Bill was passed. ”The way to stop the newspaper from
printing the news is not to release it in the first place.

A voluntary code won't work, someone will always violate
the code. We need legislation.” Hoeser added that he did

not believe a newspaper had a responsibility to use extra

76
restraint or Judgment in publishing news about a pending
criminal case. "The press in Oakland County is good. I
don't think the newspaper should be restrained. Another
solution to the problem is higher pay to get better police
officers and better training for those hired. It is the
police source which produces the most damaging news.”

Boeser's counterpart for the people Of the state of
Michigan was S. Jerome Bronson, Oakland County's Democratic
prosecutor. Bronson took office in the middle of the two-
year case and headed up the prosecution team at Manis ee.

It is interesting to note that a plank in the Bronson elec-
tion platform was that he would get a conviction in the
Steren case.

Because of the appeal of the convictions in the Steren
case, many of the persons interviewed were reluctant to talk
about it as it is still a pending matter.2

Bronson was asked whether he believed a free-press--
fair trial problem existed.

There may well be a collision between the interests of
the public and its right to know and the right of an ac—
cused to a completely and absolutely fair trial, one un—
tainted by Juror bias. What is a fair trial? Ideally

I suppose it is one in which the Jurors would be com-
pletely untainted with any bias-—this Juror, I believe,
would be a poor Juror. A good Juror is in tune with the
times, he wants to know what is going on in his commun-
ity. We know that Jurors bring prejudice into the
courtroom. But we are Operating under a system which

is substantially the same as it was when it was deveIOped

nearly 200 years ago. Look at the advances the news
media have made since then.3

 

2See page 68.

3Interview with S. Jerome Bronson, July 14, 1966.

77

It was Bronson's theory that it is an American tradi-
tion, a good tradition, to want to know what was happening
at the courthouse. He said it was one of the foundations
of the American democratic strength. He said this wasn't
bad, because prosecutors and Judges were pOpularly elected
and the peOple should know what their public officials are
doing. "We would be setting a dangerous precedent when and
if we started restricting the coverage under the guise of
furnishing a completely clean trial. This is dangerous in
many ways,” he said. Bronson said he believed that fair
comment by a newspaper about a case is needed, that it doesn't
endanger the rights of the accused because it is not tanta-
mount to a conviction or proof of guilt. "This is the right
of a newspaper. It has always been a right." The prosecu-
tor said the key to the problem was the word "fair," or lack
of malice. "Is the comment fair, not only to the accused,
but fair to the public as a whole?"

Bronson continually talked of the press working more
with the police and prosecutor to insure Justice and law en-
forcement. He said he believed that the press has a duty to
speak out against crime and corruption.

He said that voluntary codes were needed for police,
press, prosecutors, attorneys and Judges and he believed
that these codes would solve any problem which might arise.
"Any proposed laws or an enlargement of the contempt power
would be absurd." He agreed with Roeser that most of the

publicity comes from the police or lawyers, but said that

78
the newspapers could put a great deal of pressure on an in—
dividual to make a statement. When queried about Canon 20
he replied that he believed lawyers usually exercise good
Judgment.

"The police and the prosecutor rely more on the press
than most persons realize. We look to the press to speak
out on important issues. We look to the press to exercise
the public leadership that they ask public Officials to ex-
ercise. But they usually offer very little leadership."

Bronson said that there was not a serious free press--
fair trial problem in Oakland County, but there was a "lack
of sophisticated thinking, lack of thought, eep thought
and deep understanding on the part of many newspapers."

Bronson answered questions on the Steren case in gen-
eral terms which did not apply specifically to the case.

He did say, however, that he didn't believe that the publi-
city endangered the rights of the defendants because "the
community was aware of the gambling problem in the area for
four years prior to the raid."

Allen C. Ingle, now a Farmington attorney, was a Farm—
ington Township Justice of the peace in 1963 and presided
over preliminary examination of the Steren Club raid defen-

dants. In an interview he said he didn't think ther

e was
an excessive amount of publicity in the Steren casef‘L Ingle
said the Opposing attorneys generated some publicity, but

that this was the biggest and one of the only maJor gambling

 

4Interview with Allen C. Ingle, July 21, 1966.

79
cases that the county had in several years. Ingle said he
thought that the request for a change of venue was silly,
even with the publicity. "They could have gotten a better
Jury here. We have legalized gambling in this county at
the (horse racing) tracks. There were bound to be some peo-
ple on an Oakland County Jury who weren't adverse to gam-
bling,” he said. Ingle stated that he believed the Oakland
County papers, the Pontiac Press and the Daily Tribune in
Royal Oak, did a good Job of covering the case and were fair
and accurate in their reports.
Articles in the Pontiac Press and the Tribune were fine,
they were fair right down the line, they didn't try to
color the news. But the Detroit papers got out Of hand.
The test is accuracy. I feel the press should report
everything, as long as they do it accurately. But I
think I see changes coming, from the Supreme Court. The
Oakland County papers don't seem to print as much sensa-

tional information, even about the same crimes, as the
Detroit papers do.

Ingle said he didn't believe a law to regulate the
press could be passed and added that with recent Supreme
Court rulings, such as the Sheppard case (see page 2 ), laws
really weren't needed. What about Cannon 20? "Most of the
bar canons were designed to keep an attorney from getting
publicity or advertising, not for any other reason. Person-
ally, I think an attorney should be able to present his
views."

Ingle said that as long as the newspaper published
the truth, no harm would come to the defendant. "I have

faith in Jurors. The average Juror will decide a case on

the evidence. You can see this where a defendant is all but

SO
convicted by the press, but is acquitted by the Jury."

J. Robert Sterling of Pontiac, the fourth attorney
interviewed, was not a participant in the Steren case but
has practiced law in Oakland County for many years, both as
a prosecutor and attorney for the defense.

Sterling agreed with Bronson and Boeser that the prob-
lem has it roots in the faults of others, not the media.
"Some of the news sources Just like publicity and the re-
porter finds himself in the middle. What is he to do? He
has to take the information down."5 Tie attorney said that
some reporters, a few, pump too hard for news. But never-
theless, a responsible public official will stick to his
guns and refuse to give out the information, he said. Ster-
ling said a law wasn't needed, but that rules similar to
those laid down by Attorney General Katzenbach for the Jus-

tice Department were good and should be adopted by all law

enforcement agencies.6 "One simple solution to the problem
is to limit the number of persons who can give out informa-
tion to one or two sources, the chief prosecutor or the chief
of police. Certainly there are other informed sources within
these Offices, but they are not necessarily responsible
sources."

Sterling said he didn't believe that newspaper publi-

city could influence a Jury, but said he used this device

as a tool in the courtroom to protect his client. He said

5Interview with J. Robert Sterling, July 8, 1966.

6See Appendix A.

51

that Jurors enter the Jury box with all sorts of preJudices
and biases, and told the story of a Juror who, after hearing
hours of testimony by a psychiatrist on the mental condition
of the defendant, said that she Just didn't believe in "t at
psychology stuff." "In addition, all the publicity sometimes
makes the prosecutor work harder. If the newspape.s have
flooded the community with publicity about the defendant
which can't be used in court, the prosecutor's case looks
skimpy. He can't always prove what has been printed in the
newspaper. The case looks weak to a Juror who has read a
lot."

Sterling said he believed it was the responsibility

of a newspaper to carefully screen what is printed and sug-

L

(0
{2;

ill some

)‘J

b; us

(0

gested that perhaps better Judgment coulr
cases. When asked his Opinion on the Sheppard decision in
which the court placed most of the esponsibility on the
trial Judge, Sterling said that most of the damaging publi-
city is released immediately following the arrest, when

there is no Judge assigned to the case. The attorney said

he believed a newspaper should print every word of what goes
on at the preliminary hearing if it wants to. "The defendant
can waive this hearing if he feels the publicity will be

damaging to his case," he said. Sterling said most of the

trial-level tools were helpful, but voir dire, the examina-

tion of the Jurors, was "hogwash." "Some Jurors want to sit
«3 ~ '1-

and will say anything to get in the Jury box. Others don t

and will do everything possible to get out of the Jury duty.

82
This tool is not too Hff ctive," he added.7

We need more restraint on the part of the papers and the
public officials. . . . I really don't believe any news-
paper would intentionally try to hurt the defendant.

But they will always try to outdo their competitor. And
this causes problems. The biggest problem in Oakland
County today, and there is a problem, is the prolifera-
tion of authority. There are 16 assistant prosecutors.
In addition to the sheriff and the state police, there
are some 43 other police departments. Many are not res—
ponsible. Often by the time an attorney gets to the
scene the police have blown the case for him by making
some foolish statement. Perhaps in this case the answer
is to freeze all news releases for 24 hours until a res-
ponsible Official can get into the act.

Despite the fact that all four attorneys blamed the
police to some extent for releasing prejudicial information,
law officers generally deny the charge. Requests were sent
to both Oakland County Sheriff Frank Irons, and Pontiac Po-
lice Chief William Hanger, for information regarding their
official policy on the release of information and their re-
lationship with the press. These are official reactions.
Comments and an evaluation of these remarks will be made

later in the chapter.

The responses from both men, who command the two lar-

CH

est law enforcement agencies in the county, are similar.
Both relate that the Supreme Court has all but prohibited
the use of confessions as evidence in criminal cases and
said that they are careful in press releases not to divulge
information of this nature. "Other than the name of the in-
dividual involved and the crime he is being charged witi,

our hands are tied. Prior criminal record, confessions,

 

7Sterling interview.

I“,
l 3
.1

~. '1 i n .. --V d __. i -. ._,- H- ,,, ”,1 :, .
-< ~. 13 :" .'" ~ Mann :3 Ir: - ~ L. ..,~__,-\ '. .-
niSQinbA'J L “ '1 V LAJGC3, .2; J ad .2 A-JU’A f. a v1.) ._:_-._4-.zi. , v.1. d.

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b— b)

“:1 o a :‘
detectives of the Oakland County sheriff‘s office.5

Both men also agreed that relations with the press in
the county had always bee good and the press had done a
good Job. "I have always had good working relations with
the press and only upon rare occasions have inaccurate sto—
rise or information been published that would be detrimental
to apprehension," Hazen said.

Michigan State Police Commissioner Frederick Davids,
who was a captain in 1963 and led the raid on the Steren
Assembly Club, said in an interview that the state police
have always had good working relationships with the press.9

Davids said that no reporters were invited on the
Steren raid. He said taking reporters on raids was against
department policy, unless the reporter had tipped the police
that the gambling operation existed. As related earlier,
Davids denied that any pictures were posed for the photo—
graphers and said he was misquoted on his statement about
the size of the gambling Operation.

It is a policy of the state police that only a command
officer can give out information, Davids said. However,
the department's definition of a command officer differs

considerably from the military definition. According to

Davids, the man in command of the investigation is the

8Letter from Leo R. Hazen, Captain, Oakland County
Sheriff's Department, Pontiac, Mich., June 29, 1966.

9Interview with Frederick Davids.

8%
command officer. This means that a trOOper, he lowest
rank of uniformed officer, is the command officer if he is
the only one on the case. And trOOpers are allowed to give
out information to the press on such things as traffic ac-
cidents. "State police officers are schooled in this pro-
cedure and know better than to give out information on a
pending matter," Davids said.

Davids was quoted as saying that the Steren Club was
a "gambling Operation" and this, of course, had to be proved
in court. He was asked if this wasn't unfair. "Many persons
who frequented this place vunxa known habitual gamblers.
This gave us reason to believe it was a gambling Operation."
When asked if he believed a statement such as this could
have an effect on a jury Davids replied: "It can have an
effect. But what the defense attorney says can also have
an effect. . . . The defense can make prejudicial remarks
and the people have no appeal. In this case Roeser said we
smashed up the place. This wasn't true."

It is state police policy, Davids said, that no infor—
mation regarding admissions or confessions is given to the
press. Only convictions of record are released and no pho-
tographs of the defendant in a compromising situation are
permflfied to be taken. Frequently publicity is given out by
the prosecutor, who in many instances wants the publicity,
and the police get blamed for releasing the information.
"Public officials like to get publicity more than police of-

ficers," Davids said.

85
I think the newspapers played the story (3 teren case)
out of prOportion to what it was. They re ally overplayed
it. But it was re ally no fault of ours. we wanted them
But the antics of the lawyers

to lay off it sometimes.
had a lot to do with keeping the publicity 501no. I be-

lieve that newspaper publicity can have an effect and I
also believe that in many cases police departments should
what they say.

be more careful in
View of the police officer, who pl

This then is the

press and the Where Joe S the judge

.‘J

the blame on the lawyers.
question? rhree judges were interviewed. Judge
m is a former prosecutor of Oakland County

Stere

stand on the
Frederick C. Z'e
at the trial of the

William John Beer is also a

21 defendants in the

and presided
member of the Oak-

case. Judge
land county bench and is respected as a "legal scholar" in

the bench interviewed was

the county. The third member of
Michig an Sup eme Court Justice Thomas M. Kavanagh.
Judge Ziem d es not believe that newspaper publicity

extent that

ffect on the mind of a juror to tie

can have an e
liver a verdict based solel‘r on the evi-

the juror cannot do
10 If r
I h3\3 faith in our jurors.

ented in court.

dence pres
course this is what voir dire to excuse tn

But I think most can read

C)
v

And of is for;

ones who do have an opinion.

nd still make up their minds only on the evi—

about a case
presented in court,"

defendants in the
of venue had the desired

Zie In said. Judge Liem was

1".
f‘n

if he beli ved the Stere n case received

(3

effect.

fair trial and if the change
"The change of venue did not produce the desired result. I
jury quicker here. The case

think we could have gotten a
10 "1 '1 ' 1 "' 1 1 q

Interview with Jud,fi rreaerick elem, akland county

Circuit Court, July 21, 1966.

in the south end of the county (near

"(.5

was heavily played u
d. Of al the

Royal Oak), but not so heavily in the north e
jurors who were questioned in Hanistee only five, I think,
Ziem did not grant the

five had never heard of the case."
d

change of venue. Judge Stanton Dondero, who was schedule
to hear the case but died before the trial started, granted
the change. Ziem said he couldn't comment directly on the

(D

T) .
hear Mo's r's

K.\

(D

fairness of the trial since he was scheduled to
motion for a new trial based on the grounds that publicity
Ziem said it was his belief that

had prejudiced the jury.
it was up to the judge to control the amount of publicity

L.)
C)
( U

He said before a judge is assigned to the ca

in a case.
to so that the d

(D
H)
(D
D‘
I

it is the prosecutor's responsibility

dant's rights are protected.
prosecutors haven't taken
have shirked their duty.
You are bom—

when
they
a prosecutor.

There have been instances
this responsibility, when
But it is difficult to be
barded by newsmen who are certain you are hiding some-
thing when you refuse comment. . . . The prosecutor
must use his good judgment. . . . I wouldn't want to
see a blanket rule or a law prohibiting all statements
by participants. There are cases where the press g es
overboard. But we haven't reached the point yet where
we need a law.

Ziem said in some areas perhaps guidelines are needed

to outline responsibilities, but in Oakland County they are

not needed.
We do a pretty good job here. There might be minor
problems in the county, but we haven't damage a defen—
dant's rights yet. The newspapers generally do a good
job. Individually, on occasion, they sometimes go too
far. But this is usually caused by competition between
papers. . . . The Sheppard case is an example of the
press going too far. I don't think this was true in

the Steren case. . . . host of the job of controlling

the press is up to the judge. But I would hesitate to

:37

put any restrictions on the newspap -e
more dangerous. We can COpe with wh
Y'Q

but we couldn't cope with too many
papers.

. This could be

re
at has bee done,
es

UV‘J

tric ctions on news—

Judge er said there wa as no fre epress-—fair trial

problem in Oakland County and credited good rapport betwee.

judge and reporters as the reason for the "peaceful co—

V

V

existence."11 The judge

said he had yet to meet a reporter

from a local pa per who believed that his newspap ier had su—
perintending control over the bench

In return, he said,
the

judges on the circuit bench never forget the constitu-

tional guarantees of freedom of the press.

I don't know of a single case when the press has preju-
diced a defendant's right to a fair trial. But I don't
believe that e en notorious reporting during a trial
can deprive a defendant of a fair trial.
mature persons. They decide a case on the evidence be-
fore them. Our present generation is highly literate,
especially in this county. We don't have back woods

juries who can be swayed in their judgments.

Jurors :re

Ju Beer said reporters in Oakland County felt f

to sit and talk with a judge and added that he believed this

was a healthy situation. he said that

¢V

the courts and the

press are really trying to do the same thing, protect the

American way of life. "If I wanted to become a dictator I

would close all the courtrooms and shut down all the news

papers as my first two acts," he said. Judge Beer a

greed
with Judge Ziem that the press did step out of bounds in

the Sheppard case, but said no such thing had ever happened
in Oakland County. "We don't need laws. we have too many

11Interview with Judge William John Beer, Oaklanl
County Circuit Court, July 14, 1966.

-"‘C‘/
‘JLJ

laws already. The answer is wisdom. All those involved
should use wisdom.

The public officir ls should stay out of

the hippodrome.

Four words would solve the entire problem.

'That can't be discussed.'"

Justice Kavanagh said he believe e

a newspaper article
is desig ed to influence

a community and if it d esn' t do

9
hat the newspaper is failing in its job.l“ "Whether the
people are affected to the

extent that t‘riey can't change

their minds or can' t be open-mind ed in a court of law is an-
other question. The amount and nature of the publici y has

a direct bearing on this.

the newspaper will stay in the back of a person's mind," he

Usually, though, what is said in

said.

Justice Kavanagh said he believed that the trial-level
protections which a judge has are powerful tools if the

judge will use them, and crack down on stat ments by lawyers,

police and prosecutors.

The newspapers must assume a more responsible position
when it comes to running pretrial information. There

could only be one reason a newSpaper would want to run
a defendant's criminal record which would not be admit-
ted in court, and that is to influence the people. And
I don't agree that trial by newspaper isn't a serious
problem because it happens so infrequently. This is

like saying a woman is a little pregnant or it is all-
right to violete

ate the rights of an individual because it
only happens once in a while.

The Justice said that he didn't believe that a law
such as the T'-’orse Dill

would meet the constitutional test

of the First Amendment. "The answer to the problem now is

_Q

12Interview with Chief Justice Thomas C. Kavanagh,
r? - r1 /
hichigan supreme Court, July 6, 1960.

.39

individual restraint by all parties concerned and stron3
action at the trial-level by jud3es. I really don't think
responsible newspaper people or lawyers want to hurt anyone.
But they will have to take greater pains. 'his is a matter
of individual responsibility."

The last interviews to be disc us ed are those with the
managing editors of the four daily newspapers which circu-
late in Oakland County. The managing editors were inter-
viewed rather than editors or publishers because the man in
this post, while in the tOp echelon of the new pa per hier—
archy, still deals directly with the collection ofn ws.

At all four newspapers the managing editor's de St was in
the newsroom or in an office adjacent to it. It is also

important to note that of all the groups interviewed, news-

'(3

apermen seems to have the greatest awareness of the free
press--fair trial problem and 3enerally were the most vocal.

Of the four editors, Grant Howell of the Daily Tribune

 

in Royal Oak was most aggressive in his defense of the press.13
He said that there was no proof that the First and Sixth
Amendments were on a collision course and there was no

proof that pretrial publicity prejudices juries. "I believe
that jurors can make a decision on the basis of the facts
presented at the trial no matter what has gone on in the

past. We have gotten alon3 for 175 years under this Hyst m.

We cannot adOpt a cyncial viewpoint toward our jurors. They

 

13Interview with Grant Howell, managing editor, the
Daily Tribune. Royal Oak, hichigan, June 7, 1905.

do a remarkable job. . . . If we become cynical toward ju-
rors, then before you know it lawyers will insist that only
judges should sit, that juries are incompetent to admini ter
justice," he said. howell sa d the conduct of law has al-
ways been the private domain of lawyers and added that the
lawyers would love to shut out the press so the public
wouldn't know what was going on. "Lawyers say we can write
about the trial after the verdict is reached. But we live

in an immediate society. For example, when a legislator is

$0

rre sted for drunk driving, it is ir. ports nt for people to
know immediately that he was arrested for the same offense
two weeks ago."
Howell admitted hat mistakes are made. "But that is

what appeals are for. To be convicted today a man must lose

at lea .st two out of three falls." Howell said he didn't be-
lieve that his newspaper publicized the Steren case too
much. "I wish we could have written more. I wish we could
have written interpi retively, but we J are held back by the

rules of objective reporting," he said. He added that con-

J

spiracy was a difficult charge to prove and the the press

had a job to help people understand what was going on.
Howell said that if the press was shut off, people

would never know of the miscarriage of justice which occur,

how many times a defense attorney and a prosecutor arrange

to "cOp a plea."lu "Look at hissis sipp i. If the pap.e rs

’4 . w
1 To "c0p a plea" is a slang reference to a procedure

by which the defend ant in a criminal case agrees to plead
guilty to a lesser crime than the one to which he has en-
tered a ple. of not guilty.

what kind of justice would prevail?"

1 W

- , 1 h ‘, . .r .l. . H , -
r sail t.at a law HJS not as answer, out

law would be bet on than voluntary controls a3reed to by

members of the press.

have the ri.311t to bargain a.ay ri3hts

I do not feel I
ection

and esponsibility afforded the press for the prot
of the people by agreeing to a code of self- imposed
rules. . . . At east with a law the people would be
voicing their Opinion in the matter.

howell said he believed the trial-level controls were
adequate and that the contempt power,statutory rather than
might serve a useful purpose. He said it :38 silly

the press because they didn't

summary,
for lawyers to complain about

enforce their own rules, namely Canon 20.

to be responsible for our acts, but can-
ol. ‘”e are approachin3 an anon-

div

We are willin3

’UV

not tolerate prior contr
ymous society with this Inatter or that matter bein3
closed off by groups x or y or 2. We are not solving
the problems by hiding them in a drawer. One day t1e
drawer will overflow and then the problems will be too
big to cope with. . . . we have no problem of free
press-~fair trial in 03 {land County. We have a policy
at this paper that we will not do things just be caus
ther papers in the area do. But you must r3 ienoer
that this is a highly competitive business. . . . Law
and administration of justice belong to the people. A
lawyer has the special privile3e of being an officer of
tlie court. But citizens are judges of the court—-and I
think that is a greater responsibility and a greater
privilege. . . . The people do have a right to know
what is going on.

Frank An3elo, managin3 editor of the Detroit Free

Press, agreed, in essence, with Howell's ideas.

believed that many lawyers carried thefree oress--fair trial
15 H i O n

as Tae steren case wis a

argument to rid‘culous extremes.

15Interview with Frank Angelo, mana3in 3 editor, Detroit

Free Press, June 1”, 1956.

good example. News - didn't distort or over-dramatize
the situation. I am critical of our covera3e because I
think we should he s done more. We should have attempted
to find out why a situation like that was allowed to exist
so long." Angelo said the change of venue to hanistee, a

small town, was silly as the trial turned out to be the

\ a
013—

gest thing to ever hit the town.

The editor said he didn’t believe it was possible i

a newspaper to prejudice a jury, that it has never been ao—

solutely proven. He said .e believed it was possible to
put together a jury that can make a decision on just the

evidence presented in court. Angelo said that individual

V

editors should make each decision in regard to prejudicial

material, that codes would not work. "There are enougi
codes. And after all, if there was a code an editor would

still be responsible for interpreting it." Angelo was also

against the horse Bill or any law, but said he thought that

the Katzenbach plan to limit the release of certain informa-

tion was a good idea.

Actually there are only a minute number of cases which
are appealed and finally overturned because of publicity.
The record shows we have been fair and reasonable. We
cover dozens of case each year, yet people usually only
notice the ones in which we err. Also, the newspapers
work like hell to find someone who has bee treated un-
fairly. . . . It seems to me that the legal profession
would be on a much sounder ground if through its ethics
committee it had taken stringent steps against some of

the more blatant things done by lawyers.
Angelo said the press had to interpret what the public

need was and suggested that common sense was the best guide.

He said that if the police and the prosecutor are silenced

,“)’D
/_J
other sources until

the press will get its information fr n -

the public clamor becomes such that the official source:

will have to Open up again. The editor said that it was im—

perative for someone to fight for the freedom of the press

because more and more peOple were fighting for sterility.

He said the press had a duty to do something about the pre—
Ves would

ervation of justice even though occasional mista:

ingelo stressed that any critic who charged that

sensational stories to keep up circu-

be made.

he newspapers ne Md d

(’3'

lation was way off base. "Crime news is not important to—

day," he said.

The press should be criticized

intere t in the adniinistration

have generally done a poor job in insisting upon
me"e the She

proper administration of the courts. Lou
The thrust of the decision was

It doesn't excuse the press for what
critical of how the sit-

for its lack of intensi

of justice. Newspapers
e
w);

case as a e.ample.
a3ainst the judge.
it did. Not enough papers were

uation was handled down there.

John O'Brien, managing editor of the Detroit News, yes
the only newsman interviewed who said he believed publicity

could prejudice a jury. He also said he was in favor of a

lo “ as the law did not att amp to

law, the horse Bill, as a
/
regulate newspapers.13 "1 am not in favor of anything that

will weaken the First Amendment. I think the courts have
enough trial-level devices to protect the defendant." he

aid it was the job of the bar and the bench as wel

aress to work for the protection of the defendant. "Take,

for example, the trick of some lawyers who make a statemeni

16 . . . . ,
Interview with John O'Brien, managing editor, tne

Estrelt News, June 15, 1966.

I;

2
which they know will be stricken from the regard. To ask
the ur to lisreeard this and believe the‘ will is leeal

j ‘J J
fiction. This certainly has an effect on a fair trial."
O'Brien said he also liked the Katzenbach pronouncement of

Justice Department policy. He said t“ arlr spelle‘ ozt
released. ”There is a dan3er when

what information could be

attorneys and police to use good jud Lent in

a court tells
what they give to the yiex
shut up completely and s

. 1 ' 1
O'Brien was asned i he

reve free: cm of the press if access to information

tricted, a probable result of the horse Bill. "I don't see

the two as inseparable. The latter is not necessaril

Jlied in the former. If it was it would be carried to ex—

tremes, such as to private mail." The editor said he was

VH1

soundly a3ainst the code idea. "No one can alter or dilute

the First Amendment. we cannot even do it voluntarily
means

This is not our amendment to fool around with. This mv

no laws or codes or anythin3.’
ieved the adversary system in

CD
FJ

O'Brien said that he L

the American jurisprudence allowed too much freedom both in—
side and outside the courtroom. This freedom breeds publi-
News followed

city, he said. The editor was asked if the

anv euidelines in the use of potentially prejudicial infor—

mation.
At the News the only ground rule we have is we won't
use the legal word confession until the defendant's

”e call it an ad-

statement is admitted into evidence. we
mission. But what about the defendant who confesses in

 

front of a reporter9 And as far as the police record
goes, the defendant's wife will probably tell the re—
ports er that her husLm nd, the 'bum,’ has been in a d out
of Jackson [Southern iichigan State Prison at Jackson]
four or five times. Th 8 is wtere the theoretical sol-
utions breai down.

ts soout

O'Brien was quite a33ressive in his conuen
persons who claim that nevn pa apers need sensational crime
stories to sell papers. It isn't true, he said, and anyone
newspaper busin-

L

who says it is doesn't know much about the
"The police reporter used to be the most important man

on a paper. How he sometimes has a day when he can't 3st a
story into the paper. Crime news is not very important any-
more." 0' rien said that the Lew; publishes a pap or for
home delivery and consequently doesn't need big headlines

or sensational stories on the front page to catch the

Of 700,000 papers printed each day all but #0,000 are

"And this b0,000 are sold on street corners

around Detroit's financial district to men who want to get

the closing stock market reports."

V

(

Sometimes a rr
an

3

Another factor tod: y is competition.
porter may have a twin3e of conscience about usin3

item in a story—-but he can't ste nd back and let the
t. If he does he will 3e
s

competition 3st it and us e i
What it all comes down to i,

bawled out by me. . . .
cacn editor and each newsman must be responsibl I

(3

think all this talk recently has been good Ior us.
are now much more aware of the problem and I an certain
we are a good dea more careful in what we say.

O'Brien defended the News coverage of the Steren case
describing it as balanced and fair. "We have a responsibil-
ity both to the reader and to the defendant. I'm certain
most editors are responsible. The irreSponsible press can'

survive toda 1y. Competition is too great.

C 9'

L) 3
Pontiac Press ren'“ n“ editor Harry Reed said ttat it
nossible for a ewspayer to prejudice 3 jury, but not
. x-wt‘

a‘ 1 .v .I

very linely. 7 "The only w3y to get 3 complesely
Jury is to have them come from a sealed vacuum or have then
It is up to the jud and the lawyers

too L gnorant to read.
ved opinions about

ther they have preconcei

to find out whe
ted out that the

the case," he said. Reed poin Steren Club

raid was out of the Pontiac circul3 tion 3re 3 3nd conseeuentl;r

his newspaper didn't give the story much coverage.

he believed the big gest source of prejudicial news was t

attorneys and the prosecutors. Would a
W” oups help? "No, it

code between the press and these U

wouldn't work because the bar won't police its own menbers.

blmm to newspapers. Not all

‘1. UV

Thev would rather shift the

vJ
attorneys are like this, but many just oend Canon 20 when

it suits their pleasure and the newspaper ends up with egg

on its face.”

I think the newspa oer should show restraint and we do.
Recently, for e‘ru'l the wire services both called an
in their stories. This was he-

"SUSpeCt". o n o

accused man "the killer"
rec "killer" to
nent unless it is

trial. we chanUet

fore the
We try not to mention a suspect's state:
evidence. we don't use he words

going to be admitted as
confession or admission. We try not to use prior crim-
inal records, but sometimes they are important to a
story. What if the suspect is an 3303333? We can't
very well tell readers he is an escapee from prison with—
out telling them way ie was sent there in the first
place. The Supreme Court decisions of the past few yea
have changed our rules in many respects.
Reed said he didn't believe there was a free press--
17 h .
Interview with Harry ueed, managing editor, the £32—

EUac Press, July 21, 1966.

7
fair trial problem in Oakland County. He said there were
individual instances occasionally but these could be mini-
mized if the lawyers would be quiet and he newspapers would
use good judgment. He said one reason why the problem was
kept at a minimum was the good relations the press had with
the Oakland County Circuit Court. "he understand their
problems and they understand ours."

Reed didn't like the idea of a law or a code. "Any
set of rules has the built—in danger that we will be shut
out completely," he said. Nor did he like he idea of all
news releases coming from either the ton police officer in
the department or the prosecutor. "You would ge distortion.
What if it is election time and the sheriff likes to get on
as information to the
chief and then he passes it to you there is one more chance
for errors to occur." Reed said that often the tOp man
isn't available when the neWSpaper needs the story and added
that the tOp man should be too busy running the department
to handle the public relations too. "The statement should
come from the man in charge of the case. If he has the
brains to run the case, he should have the brains to do the
PR work."

Reed hesitated to call the police the chief culprit.
"They help us a lot and I hate to put the finger on them.
Of course a good police eporter has the confidence of the
police officer and can eat a great deal of information. in

fact, he usually knows much more than we can print."

A 4.
L2.)

2?
/
also diserreed with critics who tried to use the argument

that sensational news sells papers.

Sensational news isn't important anrmore. Ne are 36
percent he -~ -delivered. He don't se ect our news on
the basis of stree sales. we give our readers xeneral
news covera e and this is why they buy our ;,per. Peo-
ple who use th1is argument are living in another newspa—
per era. . . . In fact, we don' t even 3st calls for the
gory stuff. The most frequent comment heard is, "isn't
the e any good news?" Occasionally we play light news

way out of proportion just to b;i3hten up the paper.
Reed said that a newspaper would not knowingly jeo-
pardize a defendazt's rights. But he added that a newspaper
does have the responsibility to the public to print all the
ews that is important.
There is perhaps one other avenue which should be e”

plored before drawing conclusions from the evidence which

has een presented. This is an examination of the 10 Te of

("

the police reporter, the direct link betwe n the source and
the publication.
Every newspaper generally has at least one police re-

porter. The police stations, hospital ene r3 ency rooms, pro—

ecutor's office and occasionally even the courthO‘se are
this man's beat. For years the police beat was the startin3
point for a novice reporter, the initial assignmezt at the
daily newspaper. The police beat is one of the few remain-
newspaper assignments on which the re 90 rte r has to scratch
day after day for a story. Consequently, it is good train~
ing for any novice. But assigning a freshman to the beat
creates the problem of constant shift in as rs onne l. to

L

sooner than the police repor er has built up a good set of

/ /

contacts, he is 3iv n a ney joo and another novice is assigned

‘

to the beat. Many newspapers, oonse uently, have made tee
beat a permanent assignment and police reporters for many
ewspapers are old hands at their jobs.

With the exception of his pencil and paper, the most
valuable tool the police reporter has is an affable person—
ality. The secret of the success of a good police rep porter
is contacts within the department who tip him off when a
story breaks or fill him in on information which other re
porters can't get. Consequently the police reporter buys a
lot of coffee at the ‘olice station and spends many
less hours just lurkin3 around the detective division.
3v describing how the police reporter gets his news
from tie Oaklund County Sheriff's Department, a reader will
set a basic picture of how all police departments in Oakland
County ha.dle news distribution. There are minor differ-
ences within the various police Operations, but generally
all law enfor ement agencies follow a similar pattern.

For every arrest, complaint, auto accident or distur-
bance which is investigated the she rii f's department makes
a written record. Initially, these investi 3ations and ar—

ests are listed in the order of their occurrence on what

is commonly referred to as the "daily." Cepies of the daily
are run off on a duplicating machine and one set of copies
is set aside for each reporter who visits the sheriff's de-
partment each morning. After scanning the daily a reporter

has a good picture of departmental activity during the

,)

preceding day and nirht. In addition to t‘ie daily, inves—

k__)'

tigatin; officers make out an initial report for each com-

(1"

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NA . l. .‘ .-..
he complaints TJGQE

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i need or arre t :3

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plaint inves

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from minor theft to mass murder. :33 initial refl:or s are

-.

numbered to correspond to listings on the ceily. "he re-

porter is given the Opportunity to read eve. 1y initial re-

interested. Frequently the undersheriff

0')

port in which he i
points out what he believes to be a good story. Infrequently
the sheriff pulls an initial report from the file if it is
enbair'issm3r to his dep rtment, such as an accident invol-

ving a police car or an escaped prisoner. But a cross—check

of the daily :i th tie reports reveals the missing report and
if he requests it the reporter is 3llow3 d to see it. Conse-

quently the reporter has complete access to the initial re-
cords of every crime. Sometimes these reports are sketchy,
but in a major crime, such as a murder, they usually iUClUQS
statements from witnesses, description of the body and type
of weapon used, circumstan es surrounding the apprehension
and description of a suspect, location, ime and circum-
stan es of the crime and occasionally a statement mace 3
the scene by the suspect.

It might be noted here that much of the bias or pre-
judicial information which arises against the defendant
could be generated from the point when the reporter rerd.s
the initial report. These reports contain raw data, much

d nce.

'_J.

of which will never and could never be introduced as 3v

In addition, the first report is not always necessarily

101
correct. But errors are not noticed until a thorough inves-
tigation has been completed, long after the reporter has
seen the initial report.

Secondary information must be obtained from the offi-
cers investigating the case or the chief of the detective
division. A complete file of every person incarcerated in
the Oakland County Jail is kept in the record department.
These records include d tee of arrest and trial, sentence,
crime, and the department which made the arrest. A reporter
may check these records upon request.

nfessions or statements made

0

Information concerning 0
by suspects can come from one of two sources, the officers
investigating the case or the assistant prosecutor assigned
to the case. Recently both sources have bee "officially"
more close-mouthed about confessions, but will usually in-
form the reporter on an "off the record" basis.

Police cooperation is the key to good police coverage.
Consequently, the police c00perate. On breaking stories
which occur during the night the police reporter is usually

notified by the polio within minutes after the crime is

(D

discovered. On occasion a police department has even dis-
patcher a patrolman in a car to find a reporter and inform
him of the event. The police officer is usually very frank
with the reporter in telling him the whole story and rely-
ing on his good judgment to include only the "proper" items.
In a case where there is more than one reporter at the scene

v.

this becomes a problem. 'he reporter may believe in good

10°
conscience that he should 3xclud3 some details, but is
1

his case the

afraid that the competition will use it. In t

reporter usually will recall what his editor has told him,

"5

a statement similar to that made by gews managing edito
John O'Brien. ”Sometimes a reporter may have a twinge of
conscience about using an item in a story--but he can't
stand back and let the competition 33 t it and use it. If he
does he will get baw ed out by me. . . ." a
The Oakland County Sheriff's Department has a general
policy that no pictures may be taken in the jail. But most
officers accommodate photographers by announcing when they
plan to take a 3f3ndant out of jail for arrai‘g n:z13nt. They

also usually exit in a highly conspicuous manner to allow

plenty of time for pictures. In other words, the sheriff's

DJ

3partment, and most police repartments, go out of their
way to COOperate with the pre 3. host of the time it is up
to the police reporter to use his jud31ent in the use of a
pa« rt icular detail. There are, of course, exceptions and oc—
casionally the police won't talk. But even in these cases,
a good contact in the police department usually revea s the
information desire as long as the reporter is discreet in
his attribution. It should also be notel that the police

reporter usually makes decisions on what to use without con—

PM
#4

sultation with his editors. merely writes the story in—

3

cluding in it all facts he 031

H.

eves are pertinent.

Some of what was said here is in direct contradiction

1L)
O'B rien interview, supra note 16.

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L

CHAPTER V
PROPOSED SOLUTIONS AND CONCLUSIONS

It was demonstrated in Chapter III that the change of
venue granted before the Steren Assembly Club trial did not
have the desired effect. The presiding judge, Frederick
Ziem, agreed with this conclusion in an interview.1 The
publicity about the case tended to precede the shift of the
trial to Manistee. And it was also noted that the trial did
not lose any of its news value merely by moving it 300 miles
west. What had been a state story of minimal interest to
readers in Manistee became an important local story when the
change of venue was announced.

It could be asked at this time, would any of the re-
medies outlined in Chapter I have worked better in the Steren
case than did the change of venue? The desired result in
this particular case is the trial of the 21 defendants by an
impartial jury. This assumes, of course, that the publicity
of the case did have an effect on the impartiality of the
jury. This is an assumption which cannot be made fairly.

It was pointed out in Chapter I that there is a distinct
lack of scientific data on this problem and conflicting

views exist. Eight of the 12 persons interviewed for this

 

1Ziem interview, supra note 10, Chapter IV.

104

105
study said they did not believe publicity had an irreparable
effect on the jury. Included were attorneys Bronson, Ster-
ling and Ingle; judges Beer and Ziem, and newsmen Howell,
Angelo and Reed.

Therefore the problem will be stated in this manner:
could any of the remedies suggested in Chapter I reduce the
amount of publicity or stop that type of publicity which is
considered prejudicial under standards set forth on pages 3
and 64?

At the end of Chapter III, certain published statements
which met the "prejudicial" criteria were selected to test
the effect of the change of venue.2 They included:

1. The statement repeated frequently that Eddie Guar—
ella, Joseph Brooklier and Tony Bandazzo were reputed lead-
ers in the Detroit Mafia.

2. The statement attributed to State Police Commis-
sioner Davids in which he called the Steren Club "the big—

gest gambling operation this side of Las Vegas."

3. David's statement that the Steren Club Operation
was "part of the over-all crime conspiracy in Detroit."

4. Statements and pictures concerning evidence found
at the club-~cards, poker chips, dice wrappers, pool tables
with sponges in the pocket and the look-out chair.

5. General statements made by the lawyers, police and
even Justice Ingle which reflected a personal Opinion about
the case, an opinion which would not have been permitted in
court as unsubstantiated evidence.

With this publicity in mind, the possible remedies
can be considered next. Those listed in Chapter I included:

1. Trial-level remedies (such as a change of venue,
continuance, and blue ribbon jury).

 

2See page on.

105

2. The horse Bill.

3. The Justice Department policy statement.

4. Voluntary code.

5. Stronger actions by the trial judge, such as was
suggested in the Sheppard and Van Duyne decisions. (This
is actually a trial-level renedy, but will be considered
separately because it is designed to stop the publicity at
its source, not to neutralize the effects of information al-
ready publicized.)

‘TBIAL-LEVSL REMEDIES Chapter III proved that the
change of venue didn't work in the Steren case. It is doubt-
ful whether a continuance would have produced any better re-
sults. The proceedings in the case lasted for nearly two
years and there were several lengthy periods when publicity
on the case did die down, only to begin again when newswor—
thy events began to occur. A continuance would have likely
done little to change the publicity factor in this case.
Also, as noted earlier, the 21 defendants would have had to
agree to waive their Constitutional right to a speedy trial
in order to take advantage of the continuance. It should
be pointed out that the trial-level remedies really do not
provide an answer for the basic question posed in this
brief exploration: how to reduce the amount of the alleged-
ly prejudicial material published. The trial-level remedies
are aimed at neutralizing the effects of prior publicity.
Consequently, until social scientists can produce more evi-
dence on the nature of the effects of publicity on a poten-
tial juror, an evaluation of an instrument designed to neu-

tralize this effect is actually a stab in the dark.

Before concluding the discussion of the trial-level

107
remedies, a comment on the blue ribbon jury idea seems appro—
priate.3 Judge Beer, in his interview, made the point that

Oakland County jurors were above average in intelligence and

_.>

\

maturity.l+ If this is true, then ther

(D

is a question whether
a blue ribbon panel would be a great deal more qualified than
the typical or average Oakland County jury.

THE MORSE BILL The horse Bill, Senate bill 290, is
designed to stOp much of the publicity at the source, the
trial participants. The measure clearly states

it shall constitute a contempt of court for any employee
of the United States or for any defendant or his attorney
or the agent of either to furnish or make available for
publication information not already prOperly filed with
the court which might affect the outcome of any pending
criminal litigation. . . .5

Passage of the Norse Bill would have had no effect in
the Steren case because the measure would only apply to
cases in federal courts. But if the state of hichigan had
adOpted a similar provision before the Steren raid was held,
most of the publicity on the case would have been stOpped.

As this author interprets the language of the bill, sta e—
ments in the last four of the five groups listed on page 105
would have constituted a contempt of court. Statements re—
garding the alleged link between the hafia and three defen-

dants would not have been prohibited since this connection

 

3

panel.

See page 15 for an eXplanation of the blue ribbon

“Beer interview, supra note 11, Chapter IV.

5U. S. Congress, Senate, Bill 200, 59th Cong., lst
Sess., 1965.

. -f} , V. A ‘
was made by the pres

Cf)

, and not by a trial oerticisent.

a carsory glance, it would seem thwt the horse Sill would
provide an ex ellent tool for the prevention of pretrial
publicity if he measure was passed and if it stood the tee
of constitutionality. But several of the persons interview~-
including Justice Kavanagh, believe the me: ure to be uncon-
stitutional on the grounds th'4,t it pro‘iibits the defendant
from speaking out in his own behalf
made the same point, including Fred N. Vinson, Jr., Assistaz"
Attorney General of the United States in charge of the crim

inal division of the Justice Department. Vinson en'd he

HLA

J -

doubted if any law which prohibi ed the defendant from pub
licly stating his defense, to make hi alibi public, would
meet the Supreme Court's stands d of
guarantee of right of free speech.6

There appear to be othe er problems inherent in tie bill
as well.

Frank Stanton, president of the Columbia Broadcasting

System, pointed out that the horse bill would iqiiose upon

judges "the eXplosive job of sitting in virtually continuous

CD

judgment of the pr ss."7 Judge Skelly wright of the U

q
o 0.

Court of Appeals, District of Columbia, told a car associa—

k4¢

tion meeting in Chicago hat the horse Bill would close off

J.

important public offices to press inspection.

 

Senate Subcommitte on Constitutional Rights, Free
Press and Fair Trial rearing s on S. 290, 19b5, p. #3.

7Frank Stanton, remark at the Conference of Lew York
State Trial Judges, Albany, N. Y., June 24, 1964.

To piece the police s
country off-limits to
be a massive disservic
tice. In oddit ion to 3 unconstitutional, external
controls on the i’res s a very wron3 politically, soc—
ially and historically. Public officic ls, includin3
judges, prosecutors, and the police, function best in a
goldfish bowluJ

nd the DA'S offices of
3 would, in my jil3emen
course of cririinsxl j s-

.a

While the Horse Bill is desi3ned to stog publicity at
the source, it seems clear that some authorities re003nize
its indirect eim, the external restraint of the press, and
condemn it. Many Mutioritys also realize that the freedom
to print a blank pa3 is not really freedom of the press at
all-~there must be access to the news. As one e331 scholar
points out, "He say recklessly tmi t readers or listeners
have a 'right to know;' yet it is a right which they are
helpless to clairn if they do not know that they have the
right to know what as yet they do not know."9

JUSTIC ‘ DL PA TLENT POL CI The Kotzenbach plan, as it

C)

is referred to, applies only to officer of the Justice

. O . .
partment.l Lut for purposes of this study, it will

1
33 38-

sumed that such a policy had been adepted by both the Lichi-
3en State Police and the Oakland County Pros ecutor's office.

Stetcnents in cate3ory one, the Lafie link, would not

 

vSkelly Wright, r». -
Bar Association of the Seventh
111., Lay 11, 965.

0

“Prof essor Hockin3, quoted by Louis H. Mayo, "Comments
Concerning the lst Amendment and the PeOple's Right to Know,"
Communications Ledia e331 and Policy Problems (Ann Arbor:
University of Michigan Lav School, 19 3), p. 7.

10
policy.

e Annual fleeting of the
deral Circuit, Chice3o,

See Atpendix A for the complete Justice Department

110
be affec ed. Again, the p ess 3n:l not t;»
connection betwee the testimony of Geor3e dear3s and the
defendants in the Steren case.

t

(D
{DJ

in category two and

U)

Statements such as those li
three, which were me de by the police, could not have been
made under a policy such as this. Section four of the Jus-
tice Department policy explicitly states, "Disclosures (to
the press) should include only incontrovertible, factual
matters, and should not include subjective observations."ll

Statements, and pictures, concerning the evidence con—
fiscated at the Steren Club (category four) would also have
been prohibited under section six of the Justice Department
policy which states that "personnel of the Department should
refrain from making available . . . statements concerning
evidence . . . in the case, whether or not it is anticipa ed
. 19
that such evidence . . . will be use: at trial." ”

A personal opinion on the case by either the police
or the irose cut or, as outlined in category five, would also
have been prohibited under the "subjective observations"

estriction noted previously. However, puclished Opinions
of the defe.se attorney, jud3e or witnesses would not have
violated this policy.

This policy see s to 3et to the he art of the matter

as viewed by the Oakland County interviewees. Each of them,

in varying de3r ees, said they believed most of the allegedly

 

11Appendix A, page 131

12Appendix A. P? 38 132

111

o
m

preJu3101‘l publicity is 3iven to the War ss by the poli
In ad1ition, two of the four newsmen interviewed, Frank in-
3elo of the Free Press and John O"ri en of the E_3§, said
they favored the Katzenbach plan. The other two editors,
Harry Reed of the Pontiac Press and Gre nt Howell of the Daily

Tribune expressed a fear that any policy of this sort mi3ht

18 ad to the [res being shut out completely.

17‘)
O)

VOLUETARE CODE Tie hassachusetts Guide for the Bar
and the Eews hedia is a 3ood example of a voluntary code
adOpted by the e33 and press associations within a sta

If a code similar to the one in use in hassachuse ts

had oeen adOpted in hichigan, the press should have volun-

A

no

tarily refrained from linkin3 three a efe ndants to the hafia
in the Steren case. The code states that the press should
avoi "publication of the criminal record or discreditable
acts of the accused. . . . The defendant is being tried on
1 . . . .iu
the Charge for whicn he is accused and not his record.‘
There is no law that states that membership in the

Mafia is a crime. However, the deeds commonly associated
with the or3e nization are certainly discreditable. In the

publicity about the Mafia at the time of the raid, constant

(3

’3

references to the group as a "crime conspiracy" and Gear

A»

Edwards' remarks to the Detroit Chapter of oixma Delta Chi

k.

October 23, 1963,15 l2 days after the raid, put a definite

 

 

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5see vase 52 for t31s report.

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It 3‘0111 he aciniel ou th.t code: cal} 01: en‘-
7ested nodes of b)1 vior for the press And the her. role
tie) of the cod; c 1 result in only 1 oinction by tie ouI

and little more. For this reason, many
a code will work. Telfo rd Txylor, eminent legal scholar,

pointei out

 

the pres is not a: entity. It has not 3 collective 1
conscience for the evaluation of moral etc ndards. It
is not or3anized as a profession like the 133, medicine
or the military, from which individuals may be expelled
for t‘ne departure from accepted and enforced etc“ nclards
of conduct. A loose analgjnat ion of 311 types w t: the
widest possible r1n3e of tastes and standards 5nd ceter—
in; to ver< different aud ences, there is 3 sharp co:—
:etition for both news and reecers within the media.
resham' 5 law opera tee with a vengeance; the e::ercise of
conimendaole restraint in refraining from a particular
publication ma me an only that one's nearest co mpetito

gets a 3000p.l)

Frank Angelo, managing editor of the Free Press, said

 

that even a code is subject to the interpretation of the in—
dividual editor and really provides no firm guidelines.
his was noted earlier in the attempt to apply the guide-
lines to a specific case.

Daily Tribune managinge ditor 3r nt Howell said tliat
he didn't believe he had the right to "bargain away" the
rights of a free press, which belon3 to the people, by 33r ee-

21

ing to a code.

STPONGER ACTION BY THE BENCH The New Jersey Supreme

 

19Telford Taylor, "Crime Reporting and Publicity of
Criminal Proceedings," Columbia Law Review, Vol. 66 (Janu—
ary, 1966), p. 5h.

“0 -
4 Angelo interview, supra note 15, Chapter IV.

21Howell interview, supra note 13, Chapter IV.

A1

A
Court in the State v. Van Duyie “ and the U. a. Supreme

 

 

1

Court in the Sam Sho=~1 se b t1 urged the trial judje

'71
T)
£1
*3
$.JJ
O
C)
C)

to take a firmer hand in con rolling the publicity in crim-
inal cases. In the Sheppard decision Justice T1101 s Clxrk
spoke for the court when he said

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. . . . And it is obvious that the judge sh uld
have further sought to alleviate this problem by impos-
ing control over the statements made to the news media
by counsel, witnesse and especially the ccrone and po—
lice officers. . .

(‘0
D
9
H

Assuming the Supreme Court doctrine had been a well-
defined policy of the Oakland County bench at the time of
the raid, how effective would this remedy have been in step-
ping the release of infor13tion?

It would not have affected the statements in cate3ory
one regarding the Era fie. The press originated this sta
ment. The court doctrine could have only controlled its re-
lease to the press by the police or prosecutor.

The information and statements in categories two,
th es and four would also have not been affected by policy.
These statements were all made the ni 3ht the raid occurred.
A judge hadn't bee appointed to preside in the case. A
circuit court judge wasn't appointed until nearly 15 months
later. There was no jud3e to "impose control over the state-

ments made to the news media.”

 

2243 N. J. 369. 20” A-Zd 541 (176”)'

v

2 .
3New York Times, June 7, 1963.

 

‘he principle can be applied as well to the personal
Opinion statements of category five. Statements made before

a judbe was assigned to the case could not have been p

’3

ohi—
bited under this policy. It is true that Justice Ingle
could have exercised discretion in the matter, but even he
did not preside at the arraignment until October 21, ten
days after the raid.

Attorney Robert Sterling said in an interview that
the first 24 hours is the most crucial period for a defen-

24

dant. Sterling said most information about the crime and

he suspect is released in this :eriod.

Consequently, while the court policy offers flexibility
not found in a set of written procedures, it would he e lit-

tle effect during the most crucial period. Judo"e Zie sue-

D" L.)

E

gested that the prosecutor administer the policy until a
judge is assignet.25 “his might prove effective, but would
necessitate a set of rules of some sort to insure the impar-
tiality of the prosecutor.

Among other things, this study has proven that there
is no simple solution to the problems being raised in the
current free press--fair trial controversy. There is not
even agreement on the nature of the problem or that there
is a problem.

Adopting the unproven assumption that some {inds of

publicity are prejudicial, it was shown that it was very

 

’D
“uSterling interview, supra note 7, Chapter IV.
25

Ziem interview.

 

116

difficult to control this ty3e of publicity, at least in

one specific case. And the results of estin3 the publicity

‘

.v v.)

against the remedies in the “teren case can probably with
some degree of accuracy be generalized to other similar

cases.

It is interesting to note that the interviewees 3e n-
rally blamed the news source rather than tie press for the

publication of alle3 . ~

1Jr

3

'7

,rejudicial material. It is also

interesting that the one proposed remedy which appea ed to

work best with regard to the Steren case, the Justice Depart—

ment policy, received the approval of most of the interview-

ees, includin3 two newsmen.

A further observation mi3ht be that publicity which

is alle3edly prejudicial is not nece mrily inevitabm . Ju-

dicious behavior by the police the night of the raid, a

greater caution on the part of the attorneys when exore Ms

~ K.)

'04
d
'\

their Opinions on matters relatin3 to the case, and par

D"

O .

( A

'C)
0)

5r eater prudence by the press in relation to the con-

tinual Mf re-1ce to the Mafia when writing about the Steren

Assembly Club raid would have eliminated much of the publi—

city which attorney Carlton T’oeser beli

11 a

cved was so dama3in3.
The puzzle which is encountered when researchers at-

tempt to formulate a solution to the problems created by
news coverage of a crime before the trial, has led many law-

yers and judges to sugge st the

oasy way out-_to put co1trols

on the press rather than on the news source. This is a dan-

.-A

gar of which all journa alists must be aware

A law, such as the Horse Till, which on its face con-
trols'only news sources, inherently closes doors throng:

which the ress has previously had free access. Perhaps

'0

this is but a minor curb on the free press, removal of only

the first brick in the wall mentioned at the be3innin3 of

this report. But when the first brick is taken away the

second one comes out more easily. and soon many bricks are

gone, and the wall begins to crumble.

CHAPTER VI
EPILOGUE

Durin3 the eight-month period that research for this
paper was conducted this author was continually faced with
the inescapable conclusion that the press on occasion does not
exercise prOper judgment or perspective in use of pretrial
material. while inescapable, this conclusion is not readily
provab e. Hence, it has been isolated from the body of this

sport and is offers as an "educated Opinion" rather than

a proven thesis. There are some who undoubtedly would ar-
3ue that the lack of substantiation should automatically
disqualify use of the idea. However, this author would sug-
gest that this topic should be explored before it is proven,
for when it is proven, it might be too late.

To preface this discussion a brief outline of press
theory is needed. There are two basic theories of the free
press currently accepted and in use: the liber arian theory
and the social-responsibility theory. Both are fully dis-
cussed in Four Theories of the Press.1

A thumbnail sketch of the libertarian theory begins

in 17th century England. The theory was in concert with

 

1Fr d S. Siebert, Theodore Peterson and Wilbur Schramm,

Pour Theogies of the Press (Urbana, 111.: University of
Illinois Press, 1955).

118

ii?
the snare philOSOphy of enlightenment which had as its aim
to free man from all "outside restrictions on his cagacity
to use his reason for solving reli3ious, political and social
"2 Q [j I M ' ' '

proolems." tion we 3 consid area a rational bein3 and as sued
had the right to pursue truth. Several basic assumptions
are inherent to the libertarian theory. The late Professor
Carl Becker has stated these a ssumptions succinctly:

Hen desire to know the truth and will be disposed to be

guided by it . . . the sole method Of arriving a the

truth in the long run is by the free competition of

Opinion in the open marhe . . . since men will invar—

iably differ in their Opinions each ma n must be per—

mitted to ur3e, freely and even strenuously1 his own

Opinion, provided he accords the same ri5, hts to

others . . . from this mutual toleration and conside re—

tion of diverse Opinions the one that seems the most

rational will emerge and be 3ene rally accepted.3

The libertarian theory is a free-wheelin3 idea. It

prescribes few responsioilitie s or restraints for partici—
pants. Under this conceot the functions Of the mass media
are to inform, entertain and provide a basis Of economic
support to assure financial independence. An essential char-
acteristic of the concert is freedom from government control
or domination. The theory holds the t the multiplicity of
voices, many promulgatin3 unsound and false information,
would be heard by the peOple who would ultimately accept
what was true and reject what was false. While the liber-

tarian accepts some checks, such as the protection of an in-

dividual reputation, he considers the extralegal check On

 

2

 

31bid., p. an.

 

120
3.overnment the most important function of the press.

But a chan3e in the intellectual climate of a nation,
dramatic ch wn es in technolo;y and press economics, and de-
velopin3 criticism of the press wrought a new theory: the
concept of social responsibility. This theory of the press
has its roots deep in the libertarian theory, but was formu—
lated by men who questioned the inherent rationality of man;
who noted the chan3e in the "free enterprise system” which

0

brought the ownership of the press into a relatively 1ew
hands; who attacked the ri3ht of the individual to jeopard as
the majority. The formal in eption of the theory occurred
followin3 World War II when the Commission on the Freedom of
the Press, a private 3roup, met to study the press. T
conclusions reached by the 3roup and individual members
differed from the libertarian concept. A new theory emer3ed,
a theory which had as its major premise:

Freedom cares concomitant obli3ations; and the
press, which enjoys a privile3ed position under our 30v-
ernment, is responsible to society for carryin3 out cer-
tain essential functions of mass communication in con—
temporary society. To the extent that the press reOO3—
nizes its responsibilities and makes them the basis of
Operational policies, the libertarian system will satisfy
the eeds of society. To the extent that the press does
not assume its responsibilities, some other a3ency must

ee that the essential functions 01 mass communications
are carried out.

The "other a: ency" referred to in the preceding quote

1

is presumably the government. The Commission on Freedom of

the Press listed five things which society requires of its

press. One of the requirements was that the press provid

 

“Ibid., p. 74.

"a tr u hful, comprehensive, and i1telli3ent account of the
dai's events in a con ext which 3ives tiem meaning.”) The
Commission went even further in an amplification of this re-

quirement. "It is no lon3er enou3h to report the fact truth-

fUlly. It is now necessary to retort the truth .about the

J\

fact."’ Basical y, then, the social responsibility theory

implies a reco3nition by the press that they must perform a

public service to warrant their existence.

1

It is the Opinion of ohis aut‘ior that the philosoghy

of contemporary American press is somewhere between the two

theories, leaning 9219J from the lilertarian theory, but not

yet fully embracing the social responsioility theory. The
idea of 30*ernment control, in fact, is repugnant to most
editors. But repu31a nt or not, the h eat of indirect or

DbJLA

direct government control is real. The Horse Till, for ex—

A , __ h .- ! '_ - . - 4. .L , I” \
ample, would be a st ron3 indirect 3overnnent coztrol O1 is
Wress.
. 11 . . J-» 1 .- , 1 ' fl 911., ’ V 1- r, 1
1318 aaeaor eelieves that in many eases the press has

' 1 1 4- : . J- : .' »- . f, - 4.1-, .l 1
failed to rec03n1ze tais threat and in some cases, t reign

. r A ‘ ' v. 1 . . ,\ 1 -, i '2 ~ "‘~ 1‘ " "A v‘n‘ c ‘- . a J- . 4 51 ~ g“.
1?? SQJhSlQllltj, lS SUCuufa.ufl wQVCFUAgflU lflueP13TeYC o

(D

'.,'1 4 '
.411L13 1U

- a m4. , , 1 , . ’5 ~ 1"
police and attorneys mere the source ior muSt 01

‘city in the Steren case, this author believes ; 0
revealed a lack of good 31*”ment in news selection on occa-

': A. -— J“ K _- ' V f :V fa ’ I 1, ‘ 'r ’5 C, . 3 (‘V' ..
.failel to provide a ‘trataful, compreionS1ve, ,3”

gr.

sion, en

 

51bid., p. 37.

 

AA,

Ibifi.’ p. L)».

 

122
intelligent account of the day‘s events in a context which
gives them meaning." The press published the news as it
occurred seemingly without question. Commissioner Davids'
statement that the Steren Club was "the largest gambling
operation this side of Las Vegas" was never asked to stand
the test of proof. It would seem in this case the press
would have a reSponsibility to seek the truth behind this
alleged fact. The same can be said for the Davids' asser-
tion that the club was "part of the over-all crime conspir—
acy in Detroit."

It is a personal opinion that the press lacked good
judgment in the continual use of the alleged Mafia connec-
tion with two defendants. The editors interviewed contended
this statement was important to warn the local public that
organized crime had infiltrated into the suburb. And this
is true. But how many times is it necessary to repeat this
warning? Eight times, as the Tribune and the flgwg each did;
in stories published 20 months after the raid, as both papers
did? '

And what about editors like John O'Brien of the EEEE
who insist that crime news isn't important to build circula-
tion, and that his paper makes an independent judgment on
the use of news—-but then admits that newspapering is a
highly competitive business and that if his reporter stands
back and lets the competition get a fact because he doesn't
believe it should be used, "he will get bawled out by me."

Does this reflect the presentation of an "intelligent

123
account" of the day's events?

As stated earlier, this author can offer no concrete
proof that the press is courting trouble through some of
its actions. But anyone who studies a single press problem
for an extended period of time will likely get the same im-
pression that this author did.

Government regulation of a press that does not assume
its responsibilities could become a reality. A dissatisfied
public could limit the freedom extended in the first amend-
ment through the repeal power. More likely, however, the
dissatisfaction of an unhappy public could be reflected in
a change of the current liberal climate of the Supreme Court
in interpretation of the first amendment.

Government restriction of the press has occurred be-
fore in this country. In 1798 the Alien and Sedition Laws
won easy approval in Congress and were in force for two
years before they expired. In his book Freedom of Informa-
tigg, Herbert Brucker commented: "All this is simply a re-
flection of the fact that throughout our national history
we have never hesitated to restrict the freedom of expres-
sion when something else has seemed to matter more."7 The
moral seems to be that today, perhaps more than ever before,

the right to a free press must be earned.

 

7

Herbert Brucker, Freedom of Information, (New York:
The Machillan Company, 1949), p. 38.

 

BIBLIOGRAPHY

Public Documents

U. S. Senate, Subcommittee on Constitutional Rights and Sub-

committee on Improvement in the Judicial Machinery of
the Committee on the Judiciary. Hearings on Free

Press and Fair TrialJ S. 299. 89th Cong., lst Sess.,
1955.

Court Cases

Reynolds V-.H;_§;9 98 U. S. 145 (1878).
«(Toledo Newspaper Co. v. ELJEL, 247 U. S. 402 (1918).
~/Schenck v. g;_§;, 63 L. Ed. 470 (1919).
Hatton v. S3933, 220 Mich. 262 (1922).
e’In Be Simmons, 246 hich. 297, 226 N. w. 907 (1929).
El; v. g;_§;, 313 U. s. 33 (1940).
J Bridges v. California, 314 U. S. 252 (1991).
J'Pennekamp v. Florida, 328 U. s. 331 (1946).
Maryland v. Baltimore Radio Show, Inc., 338 U. S. 912 (1950).
Shepard v. Florida, 391 U. S. 50 (1951).
DeLaney V. g;_§;, 199 Fed 107, 116 (lst Cir 1952).
Marshall v. g;_§;, 360 U. S. 310 (1959).
./ 33333 v. pggg, 366 U. s. 717 (1961).
222E V- Washington. 369 U. s. 541 (1962).

Craig v. Harne , 331 U. S. 367 (1962).

Wood v. Georgia, 370 U. S. 375 (1962).

12h

v’

125

222312 V- 2.9122: 292 Fed 244 (lst Cir 1961) Cert den 0
u. s. 903 (1963). ’ ’ 37

Bideau v. Louisiana, 373 U. S. 723 (1963).

State v. Van Duyne, 43 N. J. 369, 204 A 2d. 641 (1964).

smgyanl'v- Maxwell, 231 F Supp. 37 (S. D. Ohio 1964) rev'd
346 F_—2d_75_7 (6th Cir. 1965), Cert. granted, '66 Sup '

Ct. 287 (1965).
Books

Brucker, Herbert. Freedom of Information. New York: The
NacMillan Company, 1949.

Cahn, Edmond. The Predicament of Democratic Man. New York:
The Dell Publishing Company, 1962.

Cross, Harold L. The People's Right to Know--Lega1 Access
to Public Records and Proceedings. Norningside Heights,
New York: Columbia University Press, 1953.

Felsher, Howard, and Bosen, hichael. The Press in the Jury
Box. New York: The NacMillan Company, 1966.

Goldfarb, Ronald L. The Contempt Power. New York: Colum-
bia University Press, 1963.

Sullivan, Harold M. Trial by Newspaper. Hyannis, Mass.:
The Patriot Press, 1961.

Thayer, Frank. Legal Control of the Press. Brooklyn: The
Foundation Press, Inc., 1962.

. Communications Media egal and Policy Problems.
Ann Arbor, Mich.: University of Michigan Law School,

1954.

Wright, Charles 8. Mass Communication: A Sociological
Perspective. New Iork: Random House, 1959.

 

Periodicals

Brandt, Frank. "A Free Press and a Fair Trial: England v.
the United States,“ Publishing, EntertainmentL Adver-
tising, and Allied Fields Law Quarterly, V, No. 1

(June, 1965), 166—183.

 

126

./ Cochran, N. Thad. "Pretrial Publicity as Denial of Due Pro-
cess," Mississippi Law Journal, XXXVI, No. 3 (Nay,
1965). 371-390.

"Contempt by Publication," Northwestern University Law Re-
view, LX (September-October, 1965), 532-545.

Crosley, T. 3., Jr. "Contempt by Publication: The Limita-
tion on Indirect Contempt of Court," Virginia Law Re-
view, III (April, 1962), 552-573.

"Curbing Crime News," Time, LXXXV (January 6, 1965), 43.

’ Daly, John C. “Ensuring Fair Trials and a Free Press: A

 

 

Task for the Press and the Bar Alike," American Bar
Association Journal, L, No. 11, (November, 1964),
1037342.

Edenhafer, Lawrence. "The Impartial Jury--20th Century Dil—
emma," Cornell Law Quarterly, LI, No. 2 (Winter, 1966),

 

306-3270
"Free Press--Fair Trial," Time, LXXXIV (December 15, 1964),
72.

‘J/Griswold, E. N. ”When Newsmen Become Newsmakers: Problems
no

of Publicity Before and During a Trial," Saturday us—
view, XLVII (October 24, 1964), 21-23.

Groggin, Terence P., and Hanover, George M. "Fair Trial v.
Free Press: The Psychological Effect of Pretrial Pub—
licity on the Juror's Ability to Be Impartial; A Plea
for Reform," Southern California Law Review, XXXVIII,

No. 4 (1965), 673-684.

Jaffe, Carolyn. "The Press and the Oppressed--A Study of
Prejudicial News Reporting in Criminal Cases," 233
Journal of Criminal Law, Criminology and Police
Science, LVI, No. 1 (March. 1955), 1-17.

Kadis, Phillip M. "Free Press Versus Fair Trial," Guild
Reporter, XXXII (October 8, 1965), 6-7.

 

Koudehs, George. "Fair Trial v. Freedom of the Press in
Criminal Cases," Temple Law Quarterly, XAKV, No. 4
(Summer, 1962), 412-432.

Kutner, Luis. "Unfair Comment: A Warning to News Media,"
PublishingL Entertainment, AdvertisingLQand Allied
Fields Law Quarterly, V, No. 14(June, 1965), 1-32.

Lofton, J. "Trial by Fury," Nation, CVIIC, (November 25,

127

Ross, Irwin. "Trial by Newspaper," Atlantic, LLXVI (Septem-
ber, 1965), 63-68.

Taylor, Telford. "Crime Reporting and Publicity of Criminal
News," Columbia Law Review, LXVI, No. 1 (January, 1966),

[45-520

"Trial by Newspaper " Fordham Law Review, XXXIII, No. 1
(October, 1964), 61-76.

”The Case Against Trial By Newspaper: Analysis and PrOposal,"
Publishing, Entertainment, Advertising, and Allied
Fields Law Quarterly, V, No. lTJune, 1965), 97-149.

“The Changing Approach to 'Trial by Newspaper,'" Publishing,
Entertainment, Advertising, and Allied Fields Law 2

Wright, Skelly. "A Judges View: The News Media and Crim-

inal Justice," American Bar Association Journal, I,
No. 12 (December, 1964), 1125-1129.

Newspapers

Detroit Free Press. 1962-1965.
Detroit News. 1962-1965.

Nanistee [Michigan] News Advocate. 1962-1965.

 

New York Times. 1965-1966.
Pontiac Press. 1962-1965.

Royal Oak Tribune. 1962-1965.
Unpublished Material

Gould, Charles L. Remarks to California State Bar Associa-
tion, Sacramento, California. September 23, 1965.

(Mimeographed.)

Hefferman, Nathan S. Remarks to Exchange Club of Nilwaukee,
Wisconsin, February 23, 1965. (Nimeographed.)

Jaffe, Louis L. Remarks at 1965 Annual Meeting of the Amer-
ican Political Science Association, Washington, D. 6.

September 8-11, 1965. (Mimeographed.)

 

m
120

NcKelway, Benjamin N. Remarks to New York State Publisher's
Association, Buffalo, New York, March 2, 1965. (Rimeo-
graphed.)

Stanton, Frank. Remarks at the Conference of New York State
Trial Judges, Albany, New York, June 24, 1964. (Nimeo-
graphed.)

Wright, Eugene A. Remarks at Annual Meeting of Allied Daily
Newspaper of Washington, Seattle, Washington, January
7, 1965. (Nimeographed.)

Wright, Skelly. Remarks at Annual Meeting of Bar Associa-
tion of Seventh Federal Circuit, Chicago, Illinois,
May 11, 1965. (Nimeographed.)

Other Sources

. Interview with Frank Angelo, Managing Editor, De-
troit Free Press, Detroit, Michigan. June 14, 1966.

. Interview with William John Beer, Judge, Oakland
County Circuit Court, Pontiac, iichigan. July 14,

1966.

. Interview with S. Jerome Bronson, Prosecutor, Oak-
land County, Pontiac, Michigan. July 14, 1966.

. Interview with Frederick Davids, Director, Nichi an
State Police, East Lansing, Michigan. July 20, 1960.

. Interview with Grant Nowell, hanaging Editor, Daily
Tribune, Royal Oak, Michigan. June 7, 1966.

. Interview with Allen C. Ingle, Attorney at Law,
Farmington, Michigan. July 21, 1966.

. Interview with Thomas Kavanagh, Chief Justice,
Michigan Supreme Court, Lansing, Michigan. July 6,
1966.

. Interview with John O'Brien, Managing Editor, 2g-
troit News, Detroit, Michigan. June 15, 1966.

 

. Interview with Harry Reed, Managing Editor, Pontiac
Press, Pontiac, Michigan. July 21, 1966.

. Interview with Carlton Roeser, Attorney at Law,
Pontiac, Michigan. July 8, 1963.

. Interview with J. Robert Sterling, Attorney at Law,
Pontiac, Michigan. July 6, 1966.

129

. Interview with Louis J. Neil, Jr., Publisher, State
Journal, Lansing, Michigan. June 9, 1966.

. Interview with Frederick Siem, Judge, Oakland
County Circuit Court, Pontiac, Michigan. July 21, 1966.

 

APPENDIX A
Office of the Attorney General
Washington, D. C.
Statement of Policy Concerning the Release of Information
by Personnel of the Department of Justice Relating to
Criminal Proceedings

[28 C.F.R. & 50.2 (1965)]

The availability to news media of information in cri-
minal cases is a matter which has become increasingly a sub-
Ject of concern in the administration of criminal justice.
The purpose of this statement is to formulate Specific
guidelines for the release of such information by personnel
of the Department of Justice.

1. These guidelines shall apply to the release of in-
formation to news media from the time a person is arrested
or is charged with a criminal offense until the proceeding
has been terminated by trial or otherwise.

2. At no time shall personnel of the Department of
Justice furnish any statement or information for the purpose
of influencing the outcome of a defendant's trial.

3. Personnel of the Department of Justice, subject
to specific limitations imposed by law or court rule or or-
der, may make public the following information:

(A) The defendant's name, age, residence, employ-

ment, marital status, and similar background information.

130

131

(B) The substance or text of the charge, such as
a complaint, indictment, or information.

(C) The identity of the investigating and arrest-
ing agency and the length of the investigation.

(D) The circumstances immediately surrounding an
arrest, including the time and place of arrest, resistance,
pursuit, possession and use of weapons, and a description of
items seized at the time of arrest.

Disclosures should include only incontrovertible, fac-
tual matters, and should not include subjective observations.
In addition, where background information relating to the
circumstances of an arrest would be highly prejudicial and
where the release thereof would serve no law enforcement
function, such information should not be made public.

4. Personnel of the Department shall not volunteer
for publication any information concerning a defendant's
prior criminal record. However, this is not intended to al-
ter the Department's present policy that, since federal crim-
inal conviction records are matters of public record perman-
ently maintained in the Department, this information may be
made available upon specific inquiry.

5. Because of the particular danger of prejudice re-
sulting from statements in the period approaching and during
trial, they ought strenuously to be avoided during that per-
iod. Any such statement or release shall be made only on
the infrequent occasion when circumstances absolutely demand

a disclosure of information and shall include only information

132
which is clearly not prejudicial.

6. The release of certain types of information gener-
ally tends to create dangers of prejudice without serving a
significant law enforcement function. Therefore, personnel
of the Department should refrain from making available the
following:

(A) Observations about a defendant‘s character.

(3) Statements, admissions, confessions, or alibis
attributable to a defendant.

(C) References to investigative procedures, such
as fingerprints, polygraph examinations, ballistic tests,
or laboratory tests.

(D) Statements concerning the identity, credibi-
lity, or testimony of prospective witnesses.

(E) Statements concerning evidence or argument
in the case, whether or not it is anticipated that such evi-
dence or argument will be used at trial.

7. Personnel of the Department of Justice should take
no action to encourage or assist news media in photographing
or televising a defendant or accused person being held or
transported in federal custody. Departmental representatives
should not make available photographs of a defendant unless
a law enforcement function is served thereby.

8. This statement of policy is not intended to res-
trict the release of information concerning a defendant who
is a fugitive from justice.

9. Since the purpose of this statement is to set forth

133
generally applicable guidelines, there will, of course, be
situations in which it will limit release of information
which would not be prejudicial under the particular circum-
stances. If a representative of the Department believes
that in the interest of the fair administration of justice
and the law enforcement process information beyond these

guidelines should be released in a particular case, he shall

request the permission of the Attorney General or the Deputy

Attorney General to do so.

Nicholas deB. Katzenbach
Attorney General

Date: April 16, 1965

APPENDIX B

Massachusetts Guide For the Bar and News Media
1. Guide for Press

Preamble

To promote closer understanding between the bar and the
press, especially in their efforts to reconcile the con-
stitutional guarantee of freedom of the press and the
right to a fair, impartial trial, the following mutual
and voluntary statement of principles is recommended to
all members of both professions.

Both professions, recognizing that freedom of the press
is one of the fundamental liberties guaranteed by the
First Amendment to the United States Constitution, agree
that this fundamental freedom must be zealously preserved
and responsibly exercised subject only to those restric-
tions designed to safeguard equally fundamental rights
of the individual.

It is likewise agreed that both the press and the bar

are obliged to preserve the principle of the presumption

of innocence for those accused of wrongdoing pending a

finding of guilty.

The press and the bar concur on the importance of the

natural right of the members of an organized society to

acquire and impart information about their common

134

135
interests.
It is further agreed, however, that the inherent right
of society's members to impart and acquire information
should be exercised with discretion at those times when
public disclosures would jeopardize the ends of justice,
public security and other rights of individuals.
The press and the bar recognize that there may arise
circumstances in which disclosures of names of indivi-
duals involved in matters coming to the attention of
the general public would result in personal danger, harm
to the reputation of a person or persons or notoriety
to an innocent third party.
Consistent with the principles of this preamble, it is
the responsibility of the bar, no less than that of the

press, to support the free flow of information.

For the Press

Newspapers in publishing accounts of crimes should

keep in mind that the accused may be tried in a court of law.

To preserve the individual's rights to a fair trial,

news stories of crime should contain only a factual state-

ment of the arrest and attending circumstances.

The following should be avoided:

SSS

Publication of interviews with subpoenaed witnes

after an indictment is returned.

Publication of the criminal record or discreditable acts

of the accused after an indictment is returned or during

the trial unless made part of the evidence in the court

136

record. The defendant is being tried on the charge for
which he is accused and not on his record. (Publication
of a criminal record could be grounds for a libel suit.)

3. Publication of confessions after an indictment is re-
turned unless made a part of the evidence in the court
record.

4. Publication of testimony stricken by the court, unless
reported as having been stricken.

5. Editorial comment preceding or during trial, tending to
influence judge or jury.

6. Publication of names of juveniles involved in juvenile
proceedings unless the names are released by the judge.

7. The publication of any "leaks,” statements or conclu-
sions as to the innocence or guilt, implied or expressed,

by the police or prosecuting authorities or defense

counsel.

2. Guide for Broadcasting Industry

The "Guide" for the "broadcast news media” incorporates
in nearly identical language the principles proposed to gov-

ern the conduct of the ”press."
3. Guide for the Bar

To preserve the individual's rights to a fair trial

in a court of law the following guidelines are prescribed

for the Bar.

1.

137

A factual statement of the arrest and circumstances and

incidents thereof of a person charged with a crime is

permissible, but the following should be avoided:

(A)

(B)

(C)

(D)

Statements or conclusions as to the innocence or
guilt, implied or expressed, by the prosecuting
authorities or defense counsel.

Out-of-court statements by prosecutors or defense
attorneys to news media in advance of or during
trial, stating what they expect to prove, whom they
prOpose to call as witnesses or public criticism of
either judge or jury.

Issuance by the prosecuting authorities, counsel
for the defense or any person having official con-
nection with the case of any statements relative
to the conduct of the accused, statements, "confes-
sions" or admissions made by the accused or other
matters bearing on the issue to be tried.

Any other statement or press release to the news
media in which the source of the statement remains

undisclosed.

At the same time, in the interest of fair and accurate

reporting, news media have a right to expect the coopera-

tion of the authorities in facilitating adequate cover-

age

of the law enforcement process.

APPENDIX C

STATEMENT OF PRINCIPLES
OF THE BENCH-BAR-PRESS
OF THE STATE OF WASHINGTON
Preamble

The Bench, Bar and Press (comprising all media of mass
communications) of Nashington:

(a) Recognize that freedom of news media is one of
the fundamental liberties guaranteed by the First Amendment
of the Constitution of the United States and that this basic
freedom must be seriously preserved and responsibly exercised.

(b) Are obliged to preserve the principle of the pre-
sumption of innocence for those accused of a crime until
there has been a finding of guilt in an apprOpriate court of
justice.

(0) Believe members of an organized society have the
right to acquire and impart information about their mutual
interests. The right to disseminate information should be
exercised with discretion when public disclosures might jeo-
pardize the ends of justice.

(d) Have the responsibility to support the free flow
of information, consistent with the principles of the Con-
stitution and this Preamble.

To promote a better understanding between the Bench

and Bar of Washington and the Washington News Media,

138

139
particularly in their efforts to reconcile the constitutional
guarantee of freedom of the press and the right to a fair,
impartial trial, the following statement of principles, mu-
tually drawn and submitted for voluntary compliance, is re-

commended to all members of these professions in Washington.

Principles

1. The News Media have the right and reaponsibility
to print the truth. A free and responsible news media en-
hances the administration of justice. Nembers of the Bench
and Bar should, within their respective canons of Legal
ethics, c00perate with the news media in the reporting of
the administration of justice.

2. Parties to litigation have the right to have their
causes tried fairly by an impartial tribunal. Defendants
in criminal cases are guaranteed this right by the Constitu-
tions of the United States and the various states.

3. No trial should be influenced by the pressure of
publicity from news media nor from public clamor, and lawyers
and journalists share the responsibility to prevent the crea-
tion of such pressures.

4. All news media should strive for objectivity and
accuracy. The public has a right to be informed. The accused
has a right to be judged in an atmosphere free from undue
prejudice.

5. The news media recognizes the responsibility of
the judge to preserve order in the court and to seek the

ends of justice by all those means available to him.

140
,

6. Decisions about handling the news rest with edi-

tors, but in the exercise of news judgments the editor should
remember that:

(a) An accused person is presumed innocent until pro-
ven guilty.

(b)

Readers and listeners and viewers are potential
jurors.

(o)

No person's reputation should be injured need-
lessly.

7.

The public is entitled to know how justice is being
administered.

However, no lawyer should exploit any medium

of public information to enhance his side of a pending case.
It follows that the public prosecutor should avoid taking un-

news ‘

fair advantage of his position as an important source of
9

this shall not be construed to limit his obligation

to make available information to which the public is entitled.
8.

PrOper journalistic and legal training should in-
clude instruction in the meaning of constitutional rights to

a fair trial, freedom of press, and the role of both journa-

list and lawyer in guarding these rights.

ADOPTED March 26, 1966, in general session, by a joint

committee representing the following groups:

Washington State Supreme Court; Superior Court Judges' Asso-
ciation; Washington State Nagistrates' Assn.; Washington
State Bar Association; Washington Assn. of Sheriffs & Chiefs
of Police; Washington State Prosecuting Attorneys' Associa-
tion; Allied Daily Newspapers of Washington; Washington News-
paper Publishers Assn.; Washington State Assn. of Broadcas-

ters; The Associated Press; United Press-International;
School of Communications, University of Washington.

HICHIGRN STRTE UNIV. LIBRQRIES

ill! III” II“ III llll Illllll "HI
9 1 8

    

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