-Commentary
The Watergate free trial fair press debate
By RONALD GOLDFARB
Washington—'The recent debate on
the free press-fair trial issue—between
Archibald Cox, the Watergate special
prosecutor, and the senate select
committee, chaired by Sen. Sam Ervin
(D-N.C.) — presents two questions, one
conventional and one unique.
The traditional free press-fair trial
debate centers on the question: Does
pre-trial publicity about a crime or a
defendant so charge the community
atmosphere or expose specific jurors
to prejudicial material as to deprive the
defendant of a fair trial at a later time?
The constitutional quandry is how to
balance the first amendment right of
the press to be free (and the
corresponding right of the public to
know what is going on) with a defen
dent’s fifth and sixth amendment
rights to be tried in a fair and
dispassionate atmosphere, before an
impartial jury and with due process of
law.
Cox’s argument that the Ervin
Committee should delay its hearings or
take them behind closed doors was
denied Tuesday by Judge John Sirica
despite the proper but parochial
arguments of the prosecutor that the
hearings will increase the risk that
major guilty parties may go un
punished. “The fact remains,” Sirica
wrote in his decision, “that there are no
indictments, no defendants, and no
trials” and the court “cannot act on
suppositions.” Ervin has consistently
argued that it is less important that
particular individuals be tried, con
victed and sentenced than that the
public gets a full airing of the whole
Watergate mess; and that under the
separation of powers doctrine the
committee should be allowed to do the
work charted by the Senate.
The answer to this traditional free
press-fair trial question is, I think, in
ravor of continuing the hearings.
Two Supreme Court cases are
lotable. The first Shepard v. Florida
was decided in 1951. It involved a state
rial of four Blacks charged with raping
t white girl. Furious local press
coverage of the case whipped up to
fever pitch a hostile community which
burned black’s homes and attempted to
run people out of town. The conviction
was reversed on the ground that pre
trial publicity deprived the defendants
of due process of law. Justice Robert
Jackson ruled that the defendants had
been prejudged as guilty and that their
trial was “but a legal gesture to
register a verdict already dictated by
the press and the public opinion which it
generated.”
Fifteen years later, in Sheppard v.
Maxwell (The Same Sheppard murder
case) the Supreme Court reversed a
murder conviction because the trial
judge had failed to protect the defen
dant from “massive, pervasive and
prejudicial publicity that attended his
prosecution,” depriving him of due
process of law.
In both court cases, pre-trialpublicity
was virulent and the local trial at
mosphere was of carnival proportions.
But more important, in both cases the
Supreme Court criticized the trial
judges and placed the blame for
prejudicial publicity on their failures to
use available techniques to filter away
the effects of prejudicial pre-trial
publicity: instructions to the jury,
sequestrations, voir dire, continuances,
changes of venue, and special rules of
court to govern the conduct of
prosecutors, defense counsel and even
the press. The Supreme Court has made
it clear that these available techniques
must be tried and must fail before a
case will be reversed.
A similar finding was made in
Delaney v. United States in which a
federal appellate court reversed a
criminal conviction on the ground that
post-indictment publicity generated by
a congressional investigation was so
extensive and prejudicial as to have
permeated and corrupted the trial
process. Here, too, however, the trial
court refused to grant a continuance.
Whatever publicity emanates from
the Senate Watergate hearings will not
have been generated by the prosecutor
(indeed, much of the publicity came
from leaks and statements by the
defendants themselves). The trial
courts that ultimately hear these cases
will have the responsibility to assure
that the juries impaneled to decide
these cases are not affected by pre-trial
publicity generated by the Senate
hearings or any other source. A jury
without extra-judicial information or
hard opinion about notorious cases can
be found with some effort. Judges can
control the courtroom atmosphere of
trials so that infamous defendants can
get fair trials. Widespread publicity,
pep- se, does not mean fair trials are
impossible. And, as extensive as the
Watergate publicity has been, it is not
of a sort which is likely to arouse a
lynching climate and deprive defen
dants of due process of law.
There is a second question. Another
prejudicial publicity problem could be
caused by the Ervin committee
hearings: The effect of forcing reluc
tant witnesses to appear before the
committee on camera, and 1) to
commit contempt for refusing to an
swer questions, 2) to commit perjury by
answering falsely, 3) to incriminate
themselves by telling all, or 4) to take
the fifth amendment repreatedly in the
face of accusatory questions. Putting a
witness in this position is a flagrant,
unnecessary violation of civil liberties.
It is a discreditable form of badgering
and prejudicial publicity. It has been
done, however, so it is not paranoid to
fear its recurrence.
This kind of prejudicial publicity can
be avoided if the committee does not
pillory reluctant witnesses who are
indicted or who are clearly subject of a
criminal investigation. The sight of a
reluctant witness sitting before the
microphone predictably responding to
accusatory statements-dressed-up-like
questions (“Isn’t it true that . . .”) by
politely invoking his constitutional
rights (“Sir, on advice of counsel, I
respectfully refuse to answer that
question on the ground . . .”), is
demeaning to all involved and ac
complishes no public purpose.
The committee’s treatment of this
issue will determine whether or not it is
guilty of a regretful form of prejudicial
publicity. The issue can be avoided if
the committee is rigorously fair in its
conduct of its hearings, and the
evidence to date indicates that the
Ervin committee intends to be.
Congress can carry out its true in
vestigative work by using only willing
witnesses and experts who are always
happy to appear, instead of dragging
unwilling witnesses before it and
engaging in a public battle with them
about their right not to testify. Suspects
who are not reluctant to testify (Her
bert Porter’s recent incriminatory
testimony, for example) can also be
called.
This second kind of pre-trial publicity
may poison the streams of the judicial
process at a later time: but it can be
prejudicial in the sense that it is
fruitless, overreaching and per
secutorial. A broader question also is
raised. With the pervasiveness and
impact of present media coverage, can
congressional investigations serve a
new and important function of public
education, or does this kind of in
vestigatory hearing inevitably turn into
a crude form of guerrilla theater?
The committee’s ruling on Tuesday
denying Maurice Stans’ request to
defer his testimony gets close to this
issue. He is indicted in another case and
asked only for a delay in his testimony.
The committee was polite, un
derstanding, solicitous, but resolute. It
ordered Stans to testify although it
promised to skirt any references to the
Vesco case. How the committee han
dles the anticipated refusal of G.
Gordon Liddy to testify about the
Watergate case will tell even more.
So long as the Ervin committee
continues to deport itself with the bend
over-backwards fairness and care it
has exhibited to date, it can avoid the
kind of mischievous prejudicial
publicity that a commitment to im
portant principles demands. If it does
this, the committee also can write a
proud page in the history of
congressional investigations.
Ronald Goldfarb is an attorney in
Washington
C THE WASHINGTON POST 1973
Letters
Petitioning
On June 18 I sat all day with a friend
behind McArthur Court soliciting
signatures on a letter to our senators
asking them to support the Mondale-Bayh
amendment, which would put a hold of one
year on the Alaska pipe line for further
study of alternatives, and on another letter
asking their serious consideration of to
what extent strip mining of coal is
necessary, if at all.
Of the perhaps 3000 who sought escape
from the perils of registration through the
back door of Mac Court some 325 signed
these letters. Many others, I feel sure,
would have joined them had we been able
to attract their attention, for the line was
too full for us to accost more than perhaps a
third of them. Some of those who refused
our invitation did so from a revulsion to
signing any more papers about anything
that day.
I think they who signed would like to
know the significant percentage they
belong to.
George B. Van Schaack
Eugene
Another story?
I noticed that of Ross Lienhart and Keith
Parrish, both authors of “Screw 'em,’
Ross is the Director of Heathens for the
Eradication of Stupidity. They better gel
working on their own.
John Andrews had a good point in not
funding Daycare. First, Ross and Keith
we have to delineate between Daycare and
special programs designed to help
disadvantaged students. Most disad
vantaged students didn’t have much
choice in whether they ended up being
disadvantaged. These people deserve help.
But Daycare people? THAT’S another
story.
People can choose whether or not to
have kids. And if you can’t afford the
economic and social consequences, then
you shouldn’t have any. What this Daycare
business boils down to is that some people
want to shift the economic burden of their
kids to others. If the IFC is going to cough
up money to make it economically feasible
for certain students to attend school, why
not cough up more for any other economic
cause that might be inhibiting other people
from attending school?
The problem of not being able to go to
school because one can’t afford a
babysitter represents a cost of having
children and should be — and remain —
the parents’ problem and responsibility.
Paying or contributing to this cost opens
up Pandora’s box as to where students
should legitimately stop paying for other
people’s economic burdens — burdens
which they freely brought upon them
selves.
Just who really is getting screwed by
Daycare, Ross and Keith?
Joseph Vidali
Marketing
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