Week 6 - The Fair Trial

Before Class Begins:

• Locate and open:
• Nebraska Press Ass'n
• Be Prepared to discuss:
• Facts of the case.
• The court ruling regarding 6th vs. 1st amendment.
• The alternatives listed to address jury impartiality due to pre-trial publicity.
• The test or factors the court considered in assessing the "gag order."
• Consider our previous discussions on balance between the two rights.

Ensuring a Fair Trial in High Profile Cases Week 6

"I agree that the judiciary is capable of protecting the defendant's right to a fair trial without enjoining the press from publishing information in the public domain, and that it may not do so. Whether the same absolute protection would apply no matter how shabby or illegal the means by which the information is obtained, no matter how serious an intrusion on privacy might be involved, no matter how demonstrably false the information might be, no matter how prejudicial it might be to the interests of innocent persons, and no matter how perverse the motivation for publishing it, is a question I would not answer without further argument." Justice Stevens - Concurrence

Consider the pre-trial publicity in the O.J. Simpson case and the Johnny Depp case - is it always avoidable? How can we determine what affects a verdict?

Based on our discussions for the last 5 weeks - what are some things to be concerned about in high-profile cases? What might effect the parties right to a fair trial?

Jury Impartiality

Witness Harassment & Misconduct

Court Staff & Law Enforcement Misconduct

Social Media Harrassment of All Parties

Performative Behavior by Parties

What alternative remedies can decrease the prejudicial effects or possible miscoduct encouraged by a high profile trial?

How do we resolve these issues? What remedies might work for these issues?

• Temptation of parties to sell press/public access or inside information.
• Political and social sway from social media and general public if jury is aware.
• Social/Public sway from crouds and protesters.
• Distracting behavior in the courtroom.
• Increased possiblity of tainting the jury pool with inadmissible facts due to news coverage.

10:00

Imagine you are the trial judge. Based on the facts, design an access plan for jury selection, evidence presentation, witnesses, and the courtroom audience. Be prepared to defend how your rules balance the defendant’s right to a fair trial with the public’s right to observe. If you choose to use a "gag order" does it pass the test outlined in Nebraska Press Ass'n?

The Richard Allen Trial (Delphi Murders)

• Protecting Jury Impartiality:
• 16 jurors were sequestered in a nearby hotel for 4 weeks.
• Cameras were removed and there was no broadcast.
• 1 juror was allowed to attend church on Sunday but only with court supervision.
• All jurors surrendered their phones, tablets, laptops to the court after being sworn in.
• Evenings at hotel are monitored by the baliff. Phone calls with families are supervised and then phone is re-confiscated.
• Movies allowed under supervision - romantic comedies (suggested by judge) but no crime movies.

The Richard Allen Trial

• Control of Public Access & Press:
• No food, no water, no use of electronic devices including phones. No speaking, no sleeping, no running or any distractive behavior.
• Exhibits and videos in courtroom often turned around and audience kept from viewing the materials. Specifically videos of psychotic break of Richard Allen during solitary before his confession.
• Sweeping gag orders for all parties and law enforcement. Gag order remained in effect through sentencing in some areas of the case.
• Majority of evidence sealed, much of which is still kept under seal a year later.

• Leaks of Evidence Prior to Trial
• Temporarily removed defense counsel for "gross negligence."

Did Judge Gull's "gag order" pass the Nebraska Press Ass'n test? Could all of her restrictions be considered a violation of the rights of the public and the press to view the trial? What about Richard Allen's right to a public trial?