Murphy, Robert D.

English

University of Kentucky

Kentucky Law JournalVolume 56 | Issue 2 Article 61967Free Press and Fair Trial by Donald M. GillmorRobert D. MurphyUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Book Review is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationMurphy, Robert D. (1967) "Free Press and Fair Trial by Donald M. Gillmor," Kentucky Law Journal: Vol. 56 : Iss. 2 , Article 6.Available at: https://uknowledge.uky.edu/klj/vol56/iss2/6KENTUCKY LAW JouRNAL [Vol. 56,eminently discerning eyes, the United States Supreme Court withouthaving espoused a distinctive legal or political philosophy, withouthaving written formidable treatises on the nature of law, withouthaving been an incomparably brilliant opinion writer, they will haveunderstood the mid-Twentieth Century United States better than wedo ourselves.Such, in my opinion, is the most enduring link between JusticeFrankfurter and Legal History. Perhaps this gives us a clue to his truegreatness. Who but a crown prince of gadflies could leave a conundrum,such a superbly significant conundrum as a legacy?Calvin WoodardProfessor of LawUniversity of VirginiaCharlottesville, VirginiaF_ PREss AN FAm TlLm. By Donald M. Gillmor. Washington, D. C.:Public Affairs Press, 1966. Pp. 254. $6.00.For many years the conflict between free press and fair trial hasbeen a fundamental issue in our society. The urgency of the problemhas increased greatly in the last few decades due to technologicalimprovements increasing the speed and impact of the communicationsmedia. Newspapers, with photographers and reporters working quietlyinside the courtroom, can reach a nationwide audience within a fewhours of a trial. Television and radio can broadcast the highlights of atrial into homes all over the country. Through these means the entirepopulation of an area can feel intimately involved in courtroomdramas. Thus, the possibilities of both a "quick" and "public" trial areat the same time enhanced and enormously complicated.Through short, readable, and fairly graphic chapters, Gillmordevelops the various aspects of the problem. In dramatic recapitula-tions of the Sheppard, Oswald, "Mad Dog" Irvin and similar episodes,the author sets the stage and roughly defines the issues to be ex-plored. In a broad sense these are two:1. To what extent does pre-trial publicity prejudice the entirepopulation making it impossible to draw an impartial jury?2. To what extent does trial publicity filter back to members of thejury and so corrupt the verdict?Justice often can be subverted by men on all sides who are simplyBooK REVIEwstrying to do their duty. The author quotes Norman Isaacs, ExecutiveEditor of the Louisville Courier-Journal and Times, on this problem.What has grown up in this country of ours has been a vast un-vitting conspiracy on the part of good men. The policeman wants to dohis job well. He wants to be regarded as able and efficient. So does theprosecuting attorney. And the judge. And the newspaper editor. Allgood men, all wanting to be successful in what they do-and all bound ina system which does violence to the right of Americans to ba consideredinnocent until proven guilty.1Under our system, all participants can easily overstep the bounds ofresponsibility and fair play.Free Press and Fair Trial is predominantly concerned with thealternatives available for keeping all participants functioning in theirproper sphere. Canons Twenty and Thirty-Five of the American BarAssociation Canons of Professional Ethics, typical press codes, andvarious legislative enactments are reviewed as possible solutions tothe problem. The author devotes a chapter to the English system butconcludes that it is not appropriate to the American concept of demo-cracy.Gillmor also examines the use of the contempt procedure, butfinds that this has not been a major deterrent to overblown presscoverage of trials. Forbidding attorneys to make statements to the presswould make it more difficult for issues to be publicized before the trial,but this, too, can lead to abuses. No one desires secret trials. FrankStanton of the Columbia Broadcasting System is quoted this way:Silencing of the accused and his spokesman in cases involving op-pressive police tactics, improper detention, unsubstantiated charge andwhimsical arrests might compound rather than relieve the violation ofhis rights . . . The bill is an oversimplified way of solving a complexproblem. It offers to cure human failings in a form that may carry morepotential for injury to both individuals and to the Nation than an ailmentthat has not yet been fully diagnosed. 2Despite these drawbacks, severe restriction on pre-trial statementsby attorneys for both sides might impose an effective damper on someof the abuses. The author discusses a number of decisions in theSupreme Court and elsewhere which make the assumption that, be-cause jurors have heard certain kinds of inadmissible evidence, theyhave been unduly influenced. This assumption is usually unsub-stantiated and has been occasionally contradicted by the little syste-matic information available.One chapter is devoted to the limited contribution made by socialscientists in the systematic evaluation of the jury process by experi-I D. Gnra~ron, Frm PrFss AND FAro Tkua 112 (1966).2 id. at 192.196s]KENTUCKY LAW Jo12 RNALmental studies. These studies are so few as to be inconclusive, but theyare sufficient to indicate that the jury system and the entire judicialsystem might be considerably improved if wider studies were pos-sible and if jurists were to ponder the findings.Two particularly disturbing questions incidentally come to at-tention toward the end of the book. These are:1. Whether the jury system itself is compatible with justice.2. Whether the so-called "combat" system is effective in pro-ducing truth and equitable decisions.The first question may lend itself to experimentation, since, in somejurisdictions, the accused may waive his right to a jury trial and al-low questions of fact as well as law to be decided by a panel ofjudges. The second question appears to present a deeper impasse.Questioning the efficacy of the adversary system in trial procedureseems to be more than the legal profession is willing to consider atpresent.Gillmor points out that persons in high public office have occa-sionally "unoffically tried" individuals by issuing "official publicity."A historical example was the statement by President Jefferson toCongress in 1807 that Aaron Burr was guilty of high treason. Asimilar "trial" occurred in 1965, according to the author, vhen Presi-dent Johnson announced to a nation-wide television audience thearrest of four men in connection with the murder of a Detroit house-wife, who was shot in Alabama while engaging in civil rights activities.Such jury-influencing tactics, Gillmor reminds the reader, are notlimited to the Chief Executive, but include statements by congres-sional committees, attorney generals, and other persons of high publicposition.Free Press and Fair Trial is not a handbook for a lawyer or ajournalist but an idea-book for all interested in preserving our basiccivil rights. Gillmor poses the issues in an interesting and fairlycomprehensive way, and explores the efforts made to solve them.Unfortunately, the net effect of this procedure inspires gloom. How-ever, it is not the author's fault that ready solutions are not apparent.At least he presents the issues and offers some suggestions for avenuesof exploration. Meanwhile, Gillmor urges all parties involved in ourjudicial system to strive to attain the goals of fairness and responsi-bility.Robert D. MurphyDirector, School of CommunicationsUniversity of Kentucky[Vol. 56,

Free Press and Fair Trial by Donald M. Gillmor

https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=2853&amp;context=klj

Free Press and Fair Trial by Donald M. Gillmor

Abstract

Similar works

Full text

Available Versions

University of Kentucky