Trial by Newspaper

THE ATLANTIC

BY IRWIN ROSS

ON April 24, 1964, police in Brooklyn, New York, picked up a semiliterate nineteen-year-old Negro named George Whitmore, Jr., on suspicion of attempted rape. The next day, after Whitmore had been continuously questioned for twenty-two hours, the police announced that he had confessed to three crimes — the attempted rape, the murder of a charwoman in Brooklyn, and the killing of Janice Wylie and Emily Hoffert, young career girls who had been brutally stabbed to death in their Manhattan apartment eight months before. The gruesome WylieHoffert case had shocked New Yorkers as few crimes of violence do; the police, under great pressure to solve the murder, had floundered helplessly. Now their professional honor was vindicated.

The newspapers hailed the coup. The WorldTelegram’s headline, “Wylie Murder Solved: Drifter Admits Killing 2,” was typical. All the papers set forth details of Whitmore’s confession, as authoritatively furnished by Chief of Detectives Lawrence J. McKearney — how Whitmore had been wandering around New York that summer morning, how he had casually entered the girls’ apartment when he found the door unlocked, how he had been surprised by one of the girls while “rummaging around” in the kitchen, and how he had successively murdered each of them. The Journal-American interviewed the father of one of the victims, its story beginning with his characterization of Whitmore: “An animal . . . obviously deranged ... a horror . . . should be imprisoned with no chance of parole.”

At his arraignment, however, Whitmore repudiated his confession, his court-appointed lawyer arguing that it had been exacted under duress. The newspapers were unimpressed, and in rebuttal published further details of the confession, endorsing the police contention that Whitmore had such intimate knowledge of the crime that he had to be the murderer. Reading all this, the average citizen could only agree with Chief McKearney that “we got the right guy. No question about it.”

A great many questions subsequently arose, however, as well as evidence that Whitmore had been 120 miles away on the day of the crime. Nine months after his arrest, District Attorney Frank S. Hogan cleared Whitmore of the Wylie-Hoffert murder charge. Another suspect was arrested for the crime. The delayed exoneration was welcome, but Whitmore had meanwhile suffered grievous damage, for he had been tried, convicted, and damned in the newspapers long before he had his day in court.

In tlie intervening period, he had also stood trial in Brooklyn on the lesser charge of attempted rape and had been convicted, partly on the basis of the same contested serial confession. But it soon became clear that he had not received a fair trial, owing to the prejudicial atmosphere created by the press. In March, Brooklyn District Attorney Aaron E. Koota joined the defense in asking that the verdict be set aside and a new trial scheduled. The court agreed.

Trial by newspaper is not a new phenomenon in the United States. Recently, renewed debate on the subject has been stimulated by the Warren Commission’s criticism of the way the press covered the initial police investigation of President Kennedy’s assassination. The Commission put most of the blame on the Dallas police department for its amazing lack of restraint in releasing information; item after item of evidence against Lee Harvey Oswald, as well as hearsay and unverified leads, were announced to the world at a series of frantic impromptu press conferences. As for the news media, they were criticized for badgering the police beyond the call of normal journalistic diligence.

“A fundamental objection to the news policy pursued by the Dallas police,” the Commission wrote, “is the extent to which it endangered Oswald’s constitutional right to a trial by an impartial jury. . . . The disclosure of evidence encouraged the public, from which a jury would ultimately be impaneled, to prejudge the very questions that would be raised at trial.”

Partly as a consequence of the events in Dallas, the American Bar Association launched an intensive study of how the requirements of fair trial can be reconciled with the demands of a free press. Committees of the American Society of Newspaper Editors and the American Society of Newspaper Publishers went to work on the same question. The Justice Department, after months of deliberation, issued a policy directive limiting the kinds of information to be released to the press by the FBI and U.S. attorneys. Late last December, the Philadelphia Bar Association got in ahead of the crowd with a set of guidelines that would drastically restrain police, prosecutors, defense counsel, and the news media. For its pains, the Bar Association found itself denounced by the Philadelphia press for trying to subvert the First Amendment.

in law, the accused is presumed innocent until proved guilty. The press pays formal obeisance to this principle but frequently betrays it in practice. In a variety of ways, news stories tend to convey a presumption of guilt. If the police announce that the accused has confessed, the press usually accepts the assertion as proof of guilt, even though the confession may later turn out to be false. If no confession is mentioned but the police provide a lengthy chronicle of what the accused is supposed to have done, the newspaper account usually reads like a statement of fact rather than merely an elaboration of the charge. The occasional qualifying phrase “as the police allege” or “the police charge that” is likely to be lost on the average reader.

Moreover, the news media often report incriminating evidence which the judge may rule to be inadmissible at the trial. And inevitably, prominent attention is given to the defendant’s prior criminal record, if he has one, which cannot be mentioned in court unless the accused takes the stand in his own defense.

The endless elaboration of detail about what the accused supposedly did or confessed or was previously convicted of readily creates an impression of guilt. Moreover, even the rhetorical devices of journalism favor acceptance of an accusation as a fact. Thus, “Malcolm X Assassin Charged” is a more effective, though far less accurate, headline than “2nd Muslim Seized in Malcolm Killing.” It is a commonplace when an unprepossessing suspect is arrested for him to be referred to as “hoodlum,” “thug,” or even “killer.”

In routine criminal cases, especially in large cities, prejudicial pretrial publicity may not matter: by the time the defendant goes on trial, weeks alter the crime, prospective jurymen will have forgotten the half-column news story, if indeed they ever read it. But in sensational crimes, which agitate the entire community, memories are longer, and the cascade of one-sided news accounts usually begins again on the eve of trial. Only an illiterate shut-in who does not listen to radio or watch television could avoid any acquaintance with the case.

IN The Innocents, a recent book about celebrated miscarriages of justice, Edward D. Radin tells of the weird case of James Foster, a hapless itinerant worker whose unfavorable press notices almost led him to the electric chair. Late in the spring of 1956, a burglar shot a prominent merchant, Charles Drake, in the living room of his home in Jefferson, Georgia. Mrs. Drake, who had been hurt, was able to give the police a description of the intruder. Some days later, detectives found a likely suspect in Foster — then in jail in Gainesville, Georgia, on a traffic violation — for he vaguely fitted the killer’s description.

Foster was brought to Jefferson and identified by Mrs. Drake in a confrontation in her home. Colorful newspaper accounts described the bereaved widow as demanding “Why did you kill my husband?” The newspapers also pointed out that Foster had previously served time in Florida for armed robbery. Unmentioned was the fact that his complicity was meager and the judge had let him off with a light sentence.

Soon afterward, the newspapers presented even more conclusive “evidence.” Foster’s cell mate in jail stated that he had spoken of murdering a man in Jefferson. The newspapers now had a “confession” with which to hang Foster; they did not ask whether the cell mate was telling the truth or merely trying to curry favor.

When Foster went on trial for murder a few weeks later, his lawyers asked for a change of venue because of the pervasive atmosphere of prejudice in the community. It is a standard motion when a trial by newspaper seems to preclude a fair trial by jury. The judge denied the motion. The case against Foster consisted of Mrs. Drake’s identification and the “confession” related by his former jail mate. Foster’s defense, supported by several witnesses, was that he had been with Gainesville friends throughout the entire evening when the murder took place in Jefferson. He was convicted and sentenced to death.

Then a strange thing happened. A group of townspeople who had been convinced by his defense raised money for an appeal, and while it was making its way through the higher courts — a period which lasted for two years and resulted in successive defeats for Foster — the true killer was found and confessed. Foster was freed.

Even where pretrial publicity does not result in a conviction, its inequity can be painful. A few years ago in a park in San Francisco, a young nurse and her escort were assaulted by a knifewielding maniac. The escort was bound and gagged, after which the nurse was raped, beaten, burned with a cigarette, and shorn of her hair. The girl got a good look at the rapist, whose most prominent feature was buckteeth, which led to the headline tag “Fang Fiend.”

A few days later, the police picked up a twentythree-year-old ex-convict on suspicion of the assault. He had no buckteeth, and he kept protesting his innocence, but the distraught girl identified him in her hospital room. “That’s Him!” the headlines quoted her, and the papers went on to detail the suspicious evidence which the police found in his quarters: surgical tape, scissors, rubbing alcohol, and vaseline. “These common items took on added significance,” one newspaper noted, “since the park rapist used surgical tape to bind his victims and he carried a kit of various medical supplies.”

The papers made great play with the suspect’s prior criminal record, including “two sex arrests.” These were actually less damning than they sounded, for in one instance, the youth, then seventeen, had been convicted of statutory rape (intercourse with a girl below the age of eighteen), and in the other the police had dropped the charge as “unfounded.” Even the suspect’s alibi — that on the night of the crime he was at home tape-recording some of his writing — was used against him, with the press quoting a police inspector as commenting that the tapes revealed him to be a “sexual psychopath and sadist.” The inspector went on to suggest that the poet-sadist had become so intoxicated with his own words that he had rushed from his apartment to turn fantasy into horrible fact.

By the time the papers were finished with the “park rapist,” it would have been difficult to find a prospective juror in San Francisco who was unacquainted with the case against him. Then, unexpectedly, the police arrested another man for the crime and released the poet. He had been as innocent as he claimed, and on examination, his verse showed no evidence of sadism or sexual psychopathy.

IN RECENT years, the federal courts have taken a stern view of prejudicial reporting. In Marshall v. United States, one Howard R. Marshall was convicted of illegally dispensing pep pills. At his trial, the prosecutor had tried to introduce evidence that Marshall had previously practiced medicine without a license. The judge cut off this approach, saying that “it would be just like offering evidence that he picked pockets or was a petty thief . . . and I think would be prejudicial to the defendant.”

Thereafter, two newspapers published the inadmissible evidence while the trial was still on. The judge questioned each of the jurors privately and discovered that seven of them had read one or both articles, but they all assured the judge that their impartiality had not been damaged, and he allowed the trial to proceed. In 1959, the Supreme Court reversed Marshall’s conviction, stating, “The prejudice to the defendant is almost certain to be as great when the evidence reaches the jury through news accounts as when it is a part of the prosecution’s evidence. It may indeed be greater for it is then not tempered by protective procedures.”

A 1961 Supreme Court decision, Irvin v. Dowd, vividly documented the impact of pretrial publicity on jury attitudes. Six murders had been committed in the vicinity of Evansville, Indiana, in a fourmonth period. After the suspect was arrested, both prosecutor and police officials issued press releases saying that he had confessed to all six killings, though he was subsequently brought to trial for only one.

As Justice Tom Clark summarized the press campaign: “A barrage of newspaper headlines, articles, cartoons and pictures was unleashed against him during the six or seven months preceding his trial. . . . These stories revealed the details of his background, including a reference to crimes committed when a juvenile, his convictions for arson 20 years previously, for burglary. . . . The headlines announced his police line-up identification, that he faced a lie detector test, had been placed at the scene of the crime. . . . Finally, they announced his confession. . . .” Before the trial, a roving reporter even solicited man-in-the-street opinions about the accused’s guilt and appropriate punishment, and broadcast these interviews over local radio.

The defendant’s lawyers initially won a change of venue from Vanderburgh County, where Evansville is located, to adjoining Gibson County. They then tried to get a second change of venue, on the grounds that public prejudice was as great in Gibson County, but it was refused. Of the 430 people on the jury panel, 370 stated on examination that they thought the accused was guilty, their opinions ranging from suspicion to outright certainty. Of the twelve jurors finally selected, eight admitted that they believed the defendant to be guilty but claimed that they would Be fair and impartial. The Supreme Court was unwilling to take them at their word, stating, “With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion.” it reversed the conviction and ordered a new trial.

CRIME-REPORTING that is heavily weighted against the defendant is a difficult problem to eradicate because the police, the prosecutor’s office, and the press all have a stake in the present system. The police have an understandable desire to show they are doing an effcctive job. More than vulgar headline-grabbing, though there is a good deal of that, can be involved here. As Police Chief W. H. Parker of Los Angeles has rather ponderously put it. “The commission of heinous or serious crimes in a community invariably results in the public demand for an enumeration of police efforts directed toward a solution. . . . This includes, of course, the apprehension of suspects and an explanation of the basis for such arrests.” In the absence of effective restraints, explaining the basis of arrests often involves trying the suspects in the public prints.

The District Attorney’s office faces similar pressures. Rarely is a prosecutor in the position of New York’s Frank S. Hogan, who has held office for over two decades, invariably being elected with major all-party support. Hogan could take a principled position eleven years ago that he would no longer release confessions by defendants, but most D.A.’s have to fight for their political lives at every election and continually face the temptation to sacrifice a bit of the punctilio of due process in order to burnish their public image.

The press is under compulsions of its own. There is, first of all, its purely commercial interest in purveying crime news; few stories sell papers as well as a sensational murder does. But tendentious crime-reporting can also be the consequence of a crusading zeal that is genuinely disinterested: in an effort to bring criminals to book or to prevent a political “fix,” it is all too easy to prejudge the guilt of defendants against whom the weight of evidence seems overwhelming.

The British arrange things much better. When a suspect is arrested, almost nothing can be published except his name, age, address, occupation, and the charge against him. If he has made any admissions to the police, they cannot be alluded to in print; nor can the press indicate how he is supposed to have committed the crime; publication of any evidence is forbidden, as is prior criminal record or any expression of belief in his guilt or innocence. Even the defendant’s photograph cannot be printed if there is any likelihood that the question of identification will be a relevant point at the trial. These restrictions are enforced by the contempt powers of the British courts. Infractions result in fines and even jail sentences imposed on the offending journalists.

While the British press occasionally grumbles, it hardly suffers from the court-imposed restraints. Once a case comes to trial, newspapers are free to publish everything that transpires in the courtroom; if anything, the popular press plays up crime news even more sensationally than in the United States. All that happens is that the commercial exploitation of crime is postponed from the arrest to the trial stage. Nor does the British system produce public relations problems for the police; after the case is over, there is plenty of occasion for the police to take their bows. On the other hand, in Britain there is no problem about politically ambitious district attorneys, for full-time prosecutors are not employed. One week a barrister will be retained as a prosecutor, the next as defense counsel.

IN THIS country, the results of the British system are more admired than its methods; few reformers propose adopting them here. For one tiling, the Supreme Court has shown extreme reluctance to uphold contempt proceedings against the press, on grounds of infringing the First Amendment. That problem aside, it is felt that it would be unwise to allow so vast an expansion of a judge’s contempt powers. We have too many political hacks and incompetents on the bench; the possible caprice and vindictiveness of judges, suddenly capable of fining and imprisoning editors, are rightly feared. “We know that judges as well as editors can be tyrants,” Mr. Justice Douglas has tartly observed.

On the other hand, our present methods of dealing with prejudicial publicity are clearly inadequate. Adjournments sometimes provide time for passions to die down, but not in celebrated cases, where press attention resumes as the trial date approaches. A change of venue can be useful only when a case is of purely local interest. Reversals of conviction in general provide an ineffective remedy; if the defendant is innocent, he may have been victimized by a long stay in jail; if he is guilty, society may be victimized, for after the long lapse of time it may be difficult to secure a conviction in a new trial.

As a consequence, various proposals have been made to curb publicity before a defendant’s rights have been prejudiced. The most moderate approach is cooperative self-restraint; in Oregon and in Massachusetts, representatives of the news media and the bar have adopted voluntary codes of good behavior. Since Oregon’s “Statement of Principles” was adopted in 1962, no substantial complaints of press excesses have occurred, but Oregon does not have an especially sensational press. The “Massachusetts Guide for the Bar and News Media,” now two years old, has been adopted by twenty-six daily and thirty-one weekly papers, but except for the Christian Science Monitor, all Boston papers have rejected it. The problem with voluntary codes, it is clear, is simply their voluntarism.

Legal authorities have made a number of proposals for compulsory restrictions. In a speech before the American Bar Association last year, Dean Erwin N. Griswold of the Harvard Law School suggested that the bar’s canon of ethics be amended to prohibit both prosecutors and defense counsel from releasing a wide range of prejudicial information. The restrictions would be clearly spelled out; infractions could then be dealt with by the grievance committees of the local bar associations and by disbarment proceedings in the courts. “Until we take this step,” Griswold said, “we cannot really criticize the news media very severely if they publish the information which lawyers give them.”

As for enforcing more restrained behavior on the police, Griswold proposed that it be done through the rule-making and contempt powers of the courts. Imposing contempt penalties on garrulous cops, he argued, did not involve the same constitutional problems as punishing a newspaper for contempt. Federal legislation along these lines has been proposed by Senator Wayne Morse. Morse’s bill would levy fines of up to $1000 on any federal investigator or prosecutor, as well as defendant or counsel in the federal courts, who released for publication information that was not part of the court record “which might affect the outcome of any pending criminal litigation.”

A more far-reaching proposal by New York Supreme Court Justice Bernard S. Meyer has aroused considerable interest. Meyer advocates passage of a law which would prohibit both the release and the publication of prejudicial material; thus the press as well as police and lawyers could be punished. The restrictions would apply only to jury trials, for judges in any event have to be exposed to prejudicial material when they rule on the admissibility of evidence.

In Meyer’s proposed statute, certain matters would be specifically prohibited, such as publication of prior criminal record, or of a confession, or of the offer of a settlement in a civil case, or of opinions about the credibility of a witness or the guilt of the accused. In addition, there would be a second category of material which might or might not be prejudicial, such as interviews with the victims of a crime, statements about the expected testimony of a witness, publication of the addresses of jurors. Whether the printing of such matters substantially endangered a fair trial would have to be determined by a jury, evaluating all the circumstances of the case.

THE press, understandably, is apprehensive about all such proposals. Any suggestion of court-enforced restraints raises fears of full-blown censorship. Many journalists, though by no means all, also oppose restricting the utterances of the police and the D.A.’s office, on the grounds that the public’s “right to know” would be infringed. While the right to know, unlike the right to print, has no constitutional sanction, it is clearly in the public interest that the police, prosecutors, and courts be subject to continual journalistic scrutiny. This goal can be achieved, however, without the press’s inquisitiveness being satisfied at so premature a stage in a criminal proceeding as to victimize a defendant. The right to know is not an absolute, in the police station any more than in the Pentagon or the State Department. While unnecessary secrecy in any area of government is to be avoided, the press can hardly demand instant candor.

On the other hand, proposals like Meyer’s, Morse’s, and Griswold’s, while pointing in the right direction, all share a common defect: they admit of no exceptions. To ensure that a jury is uncontaminated by extraneous impressions, they would prohibit virtually all statements to the press, before and during a trial, by both defense counsel and prosecutors.

Such a sweeping approach assumes that justice is always done in the courtroom, that throughout the fifty states we always enjoy an equitable and efficient judicial system. The truth is that on occasion pretrial publicity serves the ends of justice; instead of damaging the case of an innocent defendant, it may ensure fair treatment. It has not been unknown in some parts of this country for trade-union organizers occasionally to be run in on trumped-up criminal charges; what would be gained if defense lawyers were prevented from saying that the real crime was organizing a union? Similarly, during the civil rights upsurge in the South, the ostensible charge on which arrests are made is usually far removed from the real offense —• an assertion of constitutional rights which the local authorities regard as intolerable. It would certainly be a perversion of justice if defense attorneys (and newspapers, under Justice Meyer’s proposed statute) were to be punished for stating that their clients were being unfairly harassed.

Some of the most celebrated civil liberties cases of the past could never have been effectively fought if Dean Griswold’s or Justice Meyer’s proposals had been in effect. In the Scottsboro case, back in 1931, nine Negro youths who had been riding a boxcar through Alabama were falsely charged with rape by two white girls (one of whom later recanted) who were on the same train. Eight of the boys were convicted and sentenced to death in a judicial atmosphere that would have dismayed an English court. The case remained a cause célèbre throughout the thirties. There were endless trips to the appellate courts, two reversals by the U.S. Supreme Court, and several jury trials in Alabama; in the end, most of the youths were released. But had some of the restraints currently proposed been operative, the campaign for the Scottsboro nine would have had to halt every time a new trial was pending. It is difficult to see how such restrictions would have furthered justice; and they would certainly have made it more difficult to raise money for the defense.

The George Whitmore case, with which this article began, ironically illustrates not only the inequities of the present system but also how the engines of mass publicity can aid a hapless defendant. On the basis of false information from the police, the New York press initially damned Whitmore beyond the point where he could get a fair trial. On the other hand, long before District Attorney Hogan exonerated him of the WylieHoffert killings, a number of newspapermen became suspicious of the charges and launched a press campaign in his behalf. It is true that an assistant district attorney had also begun to doubt the validity of Whitmore’s confession, and in the end (partly aided by journalistic investigators), turned up the crucial evidence that cleared him. But no one who has followed the case doubts that relentless newspaper attention has had much to do with the scrupulous concern for Whitmore’s constitutional rights now manifested by all the authorities.

What would have happened to Whitmore if the British rules or Dean Griswold’s rules had been in effect? At the outset, his false confession would not have been published; he would unquestionably have been tried on the initial charge, that of attempted rape, by as close to an impartial jury as one can get in a sensational case. Once the press began to doubt his guilt, the papers would either have been prevented from saying anything in print or would have at least been denied access to Whitmore’s lawyers while the two additional trials were pending, Whitmore has clearly gained by the presentarrangements.

Obviously, some balance must be struck between total lack of restraint and restrictions so severe as to defeat, under some circumstances, the very ends they seek to secure. As a practical matter, it is unlikely that any legislation could pass that would penalize the press for derelictions in crime-reporting. The only approach that has a chance to work is one that would stop the flow of prejudicial material at its source: die police department and the prosecutor’s office, which routinely furnish the press with the bulk of information about confessions, incriminating evidence, “bombshell" witnesses.

As a general rule, the defense counsel should be put under the same restraints, for it is clearly as unfair for one side as for the other to try its case in the newspapers. But one escape clause should be provided, wide enough to accommodate the exceptional case like the Whitmore affair or the Scottsboro boys —defendant’s option. The defendant already has the option in criminal trials of deciding whether to testify. Under the present proposal, the defendant who thought he was being framed could take his case to the press; his lawyer could talk. In that event, of course, the prosecutor would have the right to respond. One would anticipate that only under unusual circumstances would the defendant exercise the publicity option; in most cases he would be better off avoiding all but the most neutral press comment.

This may not be a perfect solution, but it is one which is likely to prevent the excesses of trial by newspaper without relinquishing the safeguards of a crusading press. In the vast majority of cases, it would sweep away the fog of prejudice that frequently clouds the jury’s vision. It would, in short, return the trial to the courtroom.