Bar and press debate free press or fair trial
By PAUL HANEY
It was necessary and proper for the press to report the killing of eight student nurses in Chicago last summer, but statements made by police authorities linking Richard Speck with the crime prevented a fair trial.
F. Lee Bailey, the defense attorney for Sam Sheppard and the Boston Strangler, used the slaving as an example yesterday in a "Law Enforcement, Prosecution and An Informed People" discussion in Kansas City. Six other free press-fair trial experts participated.
The symposium was part of a day-long meeting sponsored by the Kansas Bar Association in cooperation with the William Allen White School of Journalism and the School of Law. About 50 KU professors and students attended.
Bailey said, "It would be unreasonable to assume that the newspapers should sit around biting their thumbs wanting to break the story that eight nurses were slaughtered in Chicago, but unable to do so because of the possibility of future prejudice."
The press has an obligation to print the occurrence of the crime, he said.
Officer made mistake
But it was a mistake, he continued, for a police officer to "take it upon himself to disclose information that a fingerprint from Richard Speck was found at the scene of the crime or that Speck had been identified by the sole surviving victim.
"Ninety per cent of the information which sticks in the public's mind is released by people in official positions who have no business making statements."
Bailey, a licensed private investigator, said newspapers "perform valuable services for the defender" and should not be criticized until "we examine our own inadequacies in controlling the problem." He said the inadequacies are too numerous to mention.
Public should know
He said once the jury is locked up, the public should know everything that occurs. It should realize the uncertainty and doubt that invades the process of criminal litigation.
It should know that the jury can make mistakes and that when they do, "the odds are 50-50 the misfire will go either way."
Bailey expressed regret that "I'm running four to one." He said one "guilty" man he defended was acquitted of murder while three "innocent" men were convicted and sentenced. He refused to identify the men.
Imposing restrictions on the press, he said, is "looking the wrong direction for the wrong remedy."
He said, however, that publishing criminal convictions must be stopped.
Previous charges unpublished?
"Newspaper editors should have enough sense to know that if the law will not permit a criminal conviction to be entered as evidence of guilt they should have the decency not to harp upon it in the pretrial statements.
He said there has long been a protection against prior restraint and that if one is ever sought, "I'm afraid I must appear on the side of the newspaper."
"I do not suggest that the absence of a prior restraint is any reason that damages should not lie—for one who suffers a faulty conviction—against the publication that caused that reversal. Let them pay the costs, to both sides," he said.
Fred E. Inbau, professor of law at Northwestern University, cited three "gross misconceptions about the entire subject of criminal justice, law enforcement and the broad social values they affect."
The misconceptions are
- Our penal institutions are housing a lot of innocent people and our present system of criminal justice is such that a lot more innocent people are apt to get convicted.
- The reversal of a criminal case means, or suggests, that the person who was convicted was innocent of the crime charged against him.
- News reporting has sent and will send innocent persons to penal institutions.
Imbau said instances of innocent persons being convicted are exceedingly rare.
Impossible to convict
"On the other hand," he said, "our streets and alleys are overrun with the criminal element and our system of criminal justice has become so fouled up that it is becoming practically impossible to convict the guilty.
"The fact that Sam Sheppard was released from prison after the conviction was reversed doesn't mean he didn't kill his wife, nor can we conclude that his innocence was established by his acquittal upon a retrial 10 years after the first conviction."
This statement prompted Bailey to rap his cigarette lighter on the table. Asked about his action later, Bailey said, "Sam Sheppard did not kill his wife."
Inbau said he knows of no case where publicity "resulted in the conviction of an innocent person. He stressed that this does not mean the courts should not reverse convictions that result in cases where such publicity occurs.
Shenpard-unfair trial
He said the U.S. Supreme Court was correct in reversing Sheppard's conviction, and "I believe the dissenting judges in Ohio's Supreme Court were correct in their ruling that Sheppard did not receive a fair trial.
"But let's settle for that kind of control over prejudicial news reporting rather than by a censorship procedure."
Inbau said he would rather have a guilty criminal "running loose because of such a reversal than live in a society with a gagged press."
Court control?
"The courts have no more right to control the press than they have the right to police the police as they have been doing in recent years."
Ernest C. Friesen, Jr., Assistant U.S. Attorney General for administration, divided the free press-fair trial question into five parts:
- Publication of information indicating the probable guilt of a particular person in advance of a trial reduces his chances of a trial before an impartial jury.
- Existing judicial remedies regulating news coverage are not effective.
- Freedom of the press is not an absolute freedom above all others.
- A temporary postponement of publication will not interfere with the need for exposure of wrong in a criminal trial.
- Protection of individual freedom is too important to be left to the press alone.
Friesen said the information flow to a jury "must be restricted to evidence of a high order of reliability if a trial by an impartial jury is to be had."
He said some data may be overcome by a simple instruction to disregard while other data may require a careful explanation of its unreliability.
"Some evidence, however, may well be beyond the ability of a jury to ignore. Protection of the jury from certain types of unreliable evidence is a matter of highest importance to a fair trial."
Press must have facts
Friesen said facts must be available to the press and the press must be able to publish the facts as the press believes them to exist.
"But is it necessary to publish them in the first edition? The urgency of the next edition should not be converted into a principal of freedom above all others, especially if a later edition will serve the same purpose."
He warned that with only a limited competition for the news and a heavy reliance on wire services, newspaper versions of events are likely to be singular and, even if totally erroneous, accepted by the public as fact.
Friesen said because some newspapers report irresponsibly and because some prosecutors give information irresponsibly, "the institutions of justice must have the authority to deal with the irresponsible newspapers, prosecutors and counts."
The Hill With It by john hill
The two elderly gentlemen rocked easily back and forth on the front porch of the old folks home in the warm sunlight.
"Say, Harold. I got a letter from my grandson at KU the other day," said one of the gentlemen.
"HOW IS HE getting along there? These colleges are gettin' pretty complicated these days," said the other. "Even the way they talk is different."
"I know what you mean, and that's why I'm not sure I understand his letter completely," said the old man as he reached beneath his faded gray sweater and brought out the letter.
"Why? What is there you don't understand?" asked Harold, who prided himself on being older yet still in touch with the younger generation.
"WELL, I THINK he says that they're expecting a little bad weather, and it's going to slow up his agricultural project." "How's that?"
"He says he's going to try the 'campus stud bit to try a complete snow job on some chick at the red dog,' but I don't—"
"I didn't realize they went in so much for farming. Sure that's not K-State he at, with horses and chickens and all?"
"YEP. THEN HE says something else I'm not sure of, because he savs he knows 'a hippy who's probably on acid and takes an occasional trix,' which—"
"Simple," said tricky Harold, smugly, "he met a chubby girl whose chemistry class takes field trips to acid plants."
"But he says that the 'hippy might just be an artsy because of the sandals and long, brown hair down to the shoulders.'"
"Sounds like the young whipper-snapper's in love," chuckled the old man, with an air of understanding.
"I HOPE NOT," said the other, "he's talking about a boy." "Hi;h?"
"And then he writes and says that he's 'going to punt on the Western Civ comp.' but I don't—"
"Athletics is a fine thing for a boy that age," said tricky Harold, using his vast reserve of insight, "and it sounds like it's a big game against that Western school."
THE OLD MAN put the letter in his lap, and sighed.
"They sure don't talk the way we used to," he said.
"There is a lot of different things about college kids these days." said Harold, revealing his keen grasp of the obvious.
"Well, there's one tradition that hasn't changed. Remember how we used to have those house-raisings, where all the neighbors would come to help you get your new house up. That's a fine old tradition that hasn't changed, according to this letter."
"WHY. ARE they having a house raising?"
"They sure are." said the old man proudly. "My grandson said that he had to hurry and finish the letter because he had to go and do something about a shack up . . ."
"Well, that's good to hear," said Harold, his faith in the younger generation somewhat restored.
"IT'S STILL too bad about all the funny expressions that college kids have today," said the other old man as he slowly got up to go inside. "I'm glad we didn't talk that way. Well, I guess I'll go inside now. See you later."
TODAY
OFFICIAL BULLETIN
Foreign Students: Read May issue calendar of International Campus events
Lecture, 4:30 p.m. Honrélle Mandi,
"Carl Zuckerkamp," 112
Blake Hall
Lecture, 7.15 p.m. Dr. Jack Porter,
"A Hunt at Topology." 119 Strong.
Geology Lecture, 8 p.m. De Blaschke
A. B. noun, KU & curator of U.S. Na-
noniologist Illustrated, A Geol-
ogist at Turinus Archaeology"
426 Lindley.
TOMORROW
Munir Society Friday Prayers, 2:30
npm, Kansas, Union.
Ven zetalan Movie, 7:30 p.m. Everyone will be present. Welcome to Venezuele
lan Student Center. Forum Room.
Union.
Popular Film, 7 & 8:30 p.m. "The
Wat Lord." Dvcs. Auds.
Advertising Day, 8:30 a.m.-3:30 p.m.
Four public relations and ad men will be featured speakers. Forum Room, Kansas Union.
2
Daily Kansan editorial page Thursday, May 4. 1967
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