Last
week, during jury selection for trial of Timothy Jones, who is accused
of killing his five children in Lexington County and dumping their
bodies in Alabama in 2014, presiding judge Eugene Griffith Jr. ordered the removal
of a Lexington County Chronicle dispensing machine in front of the
courthouse. The judge’s order raises the question of how far courts may
go to ensure that a criminal defendant gets a fair trial.
In the Jones case, defense lawyers alleged that headlines visible in the dispensing machine, including “Mass slayer’s trial opens,” and “Mass Murder Trial May Start Monday,” would bias jurors as they entered and left the courthouse. When the second headline appeared, one of Jones’ lawyers rotated the newspaper box so the headline was not visible.
While
Griffith Jr. denied the requests by Jones’ lawyers to move the trial
outside of Lexington County, after the second headline he ordered the newsrack to be removed. The newspaper removed the machine later that day.
Concerns
over news coverage influencing jurors have a long history in the
courts, dating at least as far back as the effort in 1807 to find jurors
who had not formed an opinion in the treason trial of former Vice President Arron Burr.
The issue raises an essential dilemma in the courts: the First
Amendment right of the public and the press to observe and report on
court proceedings, and the Sixth Amendment right of criminal defendants
to both a public trial and an unbiased jury.
Judges in criminal trials have used various strategies to avoid juror bias, ranging from sequestering jurors (now extremely rare
because of cost and inconvenience) to instructing jurors to avoid media
(and social media) coverage and discussion of the case. Some judges
have gone further, trying to close courtroom proceedings to prevent
certain evidence from becoming public, or attempting to limit press
coverage of a trial.
But
open trials and media coverage of them are considered fundamental
protections of freedom, which allow public scrutiny of what the courts,
as well as prosecutors, lawyers, judges and jurors, are doing. Openness
is also a means to ensure that witnesses testify truthfully, since they
can be held accountable if the public is aware they made untrue
statements.
The
United States Supreme Court has held that the closing of courtrooms and
restrictions on coverage can be imposed only under certain
circumstances. In a 1984 decision,
the U.S. Supreme Court held that courts may be closed to the public and
press only when the interest to be protected by closure is clearly
articulated; the interest overrides the interest in openness; there is
no reasonable alternative to closure; and the closure is only as much as
necessary to protect the interest. And in a 1976 case,
the Court held that a court could issue an order limiting media
coverage of a trial only when there has been intense and pervasive
publicity about the case; there is no alternative measure to mitigate
the effects of that publicity; and the restrictive order will in fact
effectively prevent such publicity from reaching jurors.
In
short, the U.S. Supreme Court has held that courts may be closed and
media coverage restricted only under limited circumstances, when there
are no other alternatives. The South Carolina Supreme Court has issued similar rulings.
Meanwhile, the U.S. Supreme Court and lower courts have also held that local governments may restrict the placement of newspaper vending machines
based on concerns such as public safety and aesthetics, but not they
may not prohibit newsracks entirely or impose restrictions on the basis
of content, or arbitrarily.
In 2001, a North Carolina judge initially ordered
that display windows of newsracks outside the Rockingham County
courthouse be covered to keep jurors in the murder trial from seeing
headlines regarding the case. The judge rescinded the order to cover the display windows after the newspaper argued that the order violated the First Amendment, but ordered that the vending machines be moved to other courthouse entrances through the duration of the trial.
Judges
and criminal defense lawyers are justified in being concerned about
media coverage influencing jurors in high-profile cases. But they should
not use this concern to close courtrooms, restrict coverage or limit
distribution of newspapers without an extremely compelling reason to do
so. The Sixth Amendment includes important rights to protect criminal
defendants. But the First Amendment rights to open courts and coverage
of court proceedings are also important protections for criminal
defendants, and the public generally.
