The Press v. the Accused

Did Cleveland newspapers so inflame Dr. Sam Sheppard's jurors that he was wrongly convicted of bludgeoning his wife to death? No one has ever proved that the press actually swayed the jurors who found the osteopath guilty in 1954 and sent him to prison for life. But last week, upholding Sheppard's bid for habeas corpus, the Supreme Court said that "inherently prejudicial publicity" was proof enough that he "did not receive a fair trial consistent with the due process clause of the 14th Amendment." In an 8-to-1 decision that forced Ohio to promptly retry or free Sheppard, the court wrote a key chapter in the growing conflict between the rights of the press and the rights of the accused in sensational U.S. trials.

Now 42 and remarried to a moneyed German divorcee, Sheppard has declared that he wants a retrial to establish his innocence. Although the state case against him may now largely rest on dead or forgetful witnesses, Sheppard got his wish last week from Cuyahoga County Prosecutor John T. Corrigan, who ordered a retrial because "society has been the victim of a heinous crime, and it demands redress."

Kisses & Votes. Speaking for the Supreme Court, Justice Tom Clark gave no opinion as to Sheppard's guilt or innocence. Clark focused entirely on the "editorial artillery" that began accusing police and "hired lawyers" of covering up the doctor's alleged guilt immediately after the 1954 crime. The salvos came from all three Cleveland papers --the Press, the Plain Dealer and the News (since bought by the Press). One front-page editorial in the Press actually urged that Sheppard "instantly" receive "the same third degree to which any person under similar circumstances is subjected."

As a direct result, said Clark, the coroner staged a three-day inquest in a school gymnasium where police searched Sheppard "in full view of several hundred spectators." His lawyer was forcibly ejected by the coroner, "who received cheers, hugs and kisses from ladies in the audience," then publicly questioned the uncounseled Sheppard for 5 1/2 hours about his sex life in and out of marriage. Impatient that Sheppard was still not indicted, the Press blared: WHY ISN'T SAM SHEPPARD IN JAIL? QUIT STALLING, BRING HIM IN.

When police finally obliged, continued Clark, "the case came on for trial two weeks before the November election, at which time the chief prosecutor was a candidate for municipal judge and the presiding judge [the late Edward Blythin] was a candidate to succeed himself." Judge Blythin, who won in a landslide, was undisturbed when Cleveland papers published the addresses of all 75 veniremen, who were thus deluged with letters and phone calls. Eleven jurors had read about the case before being selected; seven continued to receive Cleveland papers. All twelve were pictured more than 40 times in those papers, which they were free to read throughout the nine-week trial because they were not sequestered until they retired to reach a verdict.

Hiss & Chambers. Shortly before the trial, the Cleveland News blasted Defense Lawyer William Corrigan for "mass jury tampering" because he polled Clevelanders' attitudes in a vain attempt to show the need for a change of venue. While the jurors were being picked, said Clark, Radio Station WHK staged a debate among newsmen who "asserted that Sheppard conceded his guilt by hiring a prominent criminal lawyer." As other newsmen gathered from across the country, Judge Blythin took what Clark called the "unprecedented" step of seating the press within the bar of the courtroom and only 3 ft. from the jury box. "Bedlam reigned at the courthouse," said Clark. "Newsmen took over practically the entire courtroom."

After a policeman contradicted Sheppard's story on the stand, said Clark, station WHK aired a broadcast in which Hearst Columnist Bob Considine "likened Sheppard to a perjurer and compared the incident to Alger Hiss's confrontation with Whittaker Chambers." Meanwhile, "much of the material printed or broadcast during the trial was never heard from the witness stand."

"Guilty as Hell." Unquestionably, said Clark, "this deluge of publicity reached at least some of the jury." Example: "Two jurors admitted in open court to hearing the highly inflammatory charge [broadcast by Walter Winchell] that a prison inmate claimed Sheppard as the father of her illegitimate child." Yet Judge Blythin refused to declare a mistrial--nor was he moved to do so when he learned that the jurors freely made outside calls during the entire five days in which they pondered their verdict.

Perhaps the most damaging charge against Judge Blythin came from F. Lee Bailey, 33, the aggressive Boston lawyer who took Sheppard's case to the Supreme Court. Bailey produced an unsworn statement from the late Hearst Columnist Dorothy Kilgallen that Judge Blythin had confided in a pretrial interview: "It's an open and shut case . . . he's guilty as hell."

In fact, Clark's decision was based not on the judge's alleged bias but on his proven "failure to insulate the proceedings from prejudicial publicity." In such cases, British courts readily hold talkative newspapers in contempt. Perhaps fortunately for American judges, most of whom are elected, the Supreme Court has consistently ruled that a judge cannot directly restrict news publication without violating the First Amendment guarantee of a free press. U.S. courts have sought to immunize jurors by more subtle means such as the relatively new "inherently prejudicial" rule. In Rideau v. Louisiana (1963), the Supreme Court voided the murder conviction of a defendant whose confession to a sheriff had been televised and thrice beamed at potential jurors throughout the area. On similar grounds of probable rather than proven prejudice, the court last year reversed the swindling conviction of Billie Sol Estes because his Texas trial was televised over his objections.

Pruning Prejudice. As Justice Clark saw it, Judge Blythin could easily have avoided the Sheppard trial's "carnival atmosphere" by sharply limiting the number of newsmen who crammed the courthouse and even freely handled trial exhibits. Most important, said Clark, Blythin "might well have proscribed extrajudicial statements by any lawyer, party, witness or court official"--thus cutting off prejudicial publicity at its main source and forcing newsmen to report the trial only "as it unfolded in the courtroom."

Such curbs on court officers rather than newsmen are increasing across the country. In addition, the Sheppard decision is bound to make judges more receptive to pretrial postponements, changes of venue and new trials to avoid prejudice. "Given the presence of modern communications," warned Justice Clark, "the trial courts must take strong measures to ensure that the balance is never weighed against the accused."

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