Coyle podcast: A “Carnival” Trial and the Free Press

The featured image above depicts the tomb of Marilyn Sheppard, Sam Sheppard, and their unborn child. (Photo by Tim Evanson, CC-by-SA 2.0)

For the 15th episode of the Journalism History podcast, host Will Mari spoke with Erin Coyle, author of  “Turning Point: Balancing Free Press and Fair Trial Rights after Sheppard v. Maxwell,” in the Fall 2018 issue of Journalism History.

Coyle is an Associate Professor in the Manship School of Communication at Louisiana State University, where she teaches mass communication law, history, ethics, and writing courses.

This episode is sponsored by Nicholas Hirshon, author of We Want Fish Sticks: The Bizarre and Infamous Rebranding of the New York Islanders (University of Nebraska Press, 2018)

Transcript

Will Mari: Welcome to Journalism History, a podcast that rips out the pages of your history books to reexamine the stories you thought you knew and the ones you were never told. I’m your host, Will Mari, guiding you through our own drafts of history.

There was a logo that looked like a frozen seafood symbol, a mascot who got beat up in the stands and an owner who turned out to be a con artist and ended up in prison. Historian Nick Hirshon brings us a story of the worst sports branding campaign of all time in his new book, We Want Fish Sticks: The Bizarre and Infamous Rebranding of the New York Islanders, available now from the University of Nebraska Press. Buy it on Amazon and wherever books are sold.

Today we have Dr. Erin Coyle, associate professor from the Manship School of Mass Communication at Louisiana State University. She recently published “Turning Point: Balancing Free Press and Fair Trial Rights after Sheppard v. Maxwell,” in the fall issue of Journalism History about an important moment in media law in the United States. We’ll explore all that and more in this episode of Journalism History. Dr. Coyle, welcome to the show.

Erin Coyle:  Thank you very much for the opportunity to be on the show.

Will Mari: Yeah, you’re welcome. No, um, I’m looking forward to our conversation here. I guess kind of – kinda stepping back for a second and asking you kind of big picture question, you know, why is it important to revisit what happened after Sheppard, you know, and for those who don’t know the case super well, you know, could you maybe summarize sort of briefly what happened with the original case?

Erin Coyle:  Yes. Every semester when I teach mass media law, I explain to students Sheppard v. Maxwell. This is a very important case for journalists and for mass communication professionals to understand because the U.S. Supreme Court in this case was asked to address whether pretrial publicity, during trial publicity and the conduct of journalists in a courtroom during trial could’ve deprived a criminal defendant of his fair trial rights. That’s a very important question and a very important issue. Let me tell you a little bit about the back story of the case.

Will Mari: Yeah.

Erin Coyle: Marilyn Sheppard was found beat to death in her suburban Ohio home on July 4, 1954. She was pregnant at the time, and she lived in a suburb of Cleveland, Ohio, with her son and her husband, Sam Sheppard. Sam was a doctor, and he reported that he awoke early that morning to find an intruder fleeing from their home. He reported struggling with the intruder and losing consciousness before he ultimately recovered and went to go check on his wife. Then he learned that his wife had been killed.

Fortunately their young son was not harmed at the time. Press coverage of Marilyn’s death and the investigation was sensational. One Cleveland newspaper started crusading for justice for Marilyn right away in 1954. As part of that crusade, they called for her husband, Sam, to be interviewed and arrested.

Will Mari: Wow. That sounds like a very dramatic case. I remember reading about that for the first time in my media law class and going, “That sounds like a movie or a TV show.”

Erin Coyle:  Yeah, and some people say it was the inspiration for The Fugitive.

Will Mari: That’s right. Even though the show writers say that wasn’t what they were trying to do, but I wonder. I wonder.

Erin Coyle: Yes. Well, when the Ohio Supreme Court addressed this case, the Ohio Supreme Court explained – and I’m gonna quote what they wrote because they summarized it so well. That opinion says, “Murder and mystery, society, sex and suspense were combined in this case in such a manner as to intrigue and captivate the public’s fancy to a degree perhaps unparalleled in recent annals. Circulation-conscious editors catered to the insatiable interest of the American public in the bizarre. In this atmosphere of a Roman holiday for the news media, Sam Sheppard stood trial for his life.” Last summer, I started going through the news coverage of the investigation of the crime as well as the trial of Sam Sheppard, and the coverage was voluminous, even international in scope. And it’s hard to imagine how many journalists were interested in this story and were trying to cover this story. At that time, there were three daily newspapers in Cleveland, Ohio, competing throughout the day every single day to be the first one to have information about the Sheppard story.

Will Mari: Wow.

Erin Coyle:  Yeah. And that became a very important part of the entire case. The volume of the coverage and the tone of the coverage is surprising even today, especially to know that one of the crusading newspapers not only called for an investigation, it called for Sam Sheppard to be arrested. And one newspaper even suggested that he should have the death penalty.

Will Mari: Wow.

Erin Coyle:  These are not the types of things we expect to be seeing from newspapers today, but the definitely were an issue in the case in addressing whether the newspaper coverage of the investigation and the trial had deprived Dr. Sheppard of his 6th Amendment right to a fair trial as those rights are extended via the due process clause of the 14th Amendment to states.

But he initially was convicted on charges of second-degree murder and almost a decade later, the U.S. Supreme Court accepted his appeal alleging that he had been deprived of a fair trial for several reasons. So those reasons included, number one, the voluminous coverage of the investigation of the crime; number two, sensational coverage of the trial, including reports of information that could not be shared during the trial; and number three, the atmosphere of the trial courtroom that the U.S. Supreme Court described as being carnival-like. The U.S. Supreme Court concluded that the totality of these circumstances prevented Dr. Sheppard from receiving a fair trial, and the opinion states that the state trial judge did not fulfill his duty to protect Sheppard from the inherent prejudicial publicity which saturated the community and to control disruptive influences in the courtroom.

So that really emphasizes that judges have a responsibility to try to protect the fair trial rights of criminal defendants. This court opinion also acknowledges that under circumstances, news coverage of crimes and trials might threaten those fair trial rights if jurors are allowed to access that material in a way that could prevent them from being impartial jurors.

Will Mari: Now, that – that has such a – a heavy impact across the country. Uh, it seems like it was, you know, really a turning point in the role that judges play or played, uh, in engaging of the media in the United States.

Erin Coyle:  Yeah, it really did. And that summer, Judge E. Maurice Braswell went to a conference of judges that was held in Boulder, Colorado, and he recalls that much of the time at that conference, the judges were talking about the Sheppard ruling and what that meant for their responsibility of judges for them to make sure that criminal defendants received fair trial rights. And judges across the nation took this very seriously and started discussing and studying ways that they could better protect the fair trial rights of criminal defendants.

Will Mari: Yes, and that kinda brings me to my next question with North Carolina specifically and the judges there, you know, why – why was that state and those judges so concerned with – with – with journalists’ access to the court and crime news? Was there something about North Carolina that made that kind of a battleground for what happened next?

Erin Coyle:  Well, the judge I just referenced, Judge E. Maurice Braswell, was a superior court judge in Wake County when he went to the conference in Boulder, Colorado. And when he came back from that conference, he talked with another superior court judge, Raymond B. Mallard, about this issue. And Judge Mallard had a reputation for requiring a high level of decorum in his courtroom, and they both had been aware that it was possible for media coverage to lead to mistrial because of a case that recently had occurred in North Carolina.

So on September 12, they co-signed an order initially drafted by Judge Braswell and reviewed and added to by Judge Mallard on how they were going to show their commitment to having fair trials in their courtroom. So that rule of court responded directly to Sheppard v. Maxwell by indicating that they could take steps to ensure that criminal defendants’ fair trial rights are protected against prejudicial influences. Their rule stated that judges could hold in contempt any person involved in the prosecution, defense, investigation or adjudication of a criminal case for making any statement to the public or to the press after an arrest and before the culmination of trial. It specifically restricted the release of information related to a confession, a statement from a person accused of a crime or a prior criminal record of a person accused of a crime.

The rule did not, however, prevent naming a person accused of a crime, stating that a person was charged with a specific crime or publishing the name or description of a person suspected of committing a crime.

Will Mari: Okay.

Erin Coyle:  So what they were doing was giving notice ’cause they had the authority to hold someone in contempt of court if they were releasing information that could prevent a criminal defendant from receiving a fair trial by an impartial jury.

Will Mari: This is when – this is in the fall of 1966. Is that correct?

Erin Coyle:  Yes. Yes, so this is the fall of 1966, around the time that a court in Ohio was considering how to have another trial for Dr. Sheppard and how, if at all, media could cover that trial.

Will Mari: And I guess – I guess the reaction from the – the journalists in North Carolina, you know, was – was kind of expected, but it – it was also, uh, fairly unified it sounds like from – form having read your piece and having saw – I’ve seen your presentation on this, and I was just kind of wondering, you know, what was that reaction like, you know, for the time by the reporters and the editors in that state? And really nationally too, actually, for that matter.

Erin Coyle:  Well, this struck a chord in an issue that journalists had been addressing for more than a decade.

Will Mari: Hmm.

Erin Coyle:  Journalists across the country had been meeting at conferences, exchanging letters, engaging in – in conversations about the public’s right to receive information, particularly about the criminal justice system. And a number of journalists were concerned about the potential for government secrecy, especially related to criminal justice.

So they had been planning programs at professional conferences, working on studies, addressing what 1st Amendment rights meant and what access rights meant, not only access to criminal proceedings but also access to public records during this time period. So there was a lot of advocacy going on, trying to improve journalists’ ability to receive information from government officials or for government proceedings at that time.

Will Mari: It did seem to be a moment when there was that initial push for early sunshine laws and early access to government records, and so I wonder if it was sorta the perfect moment, if anything, to have a reaction to this kind of ruling or this kind of statement by the judges.

Erin Coyle:  Yes. Well, and the journalists advocating for access to information from court also were involved in advocating for sunshine laws.

Will Mari: Ah, okay.

Erin Coyle:  And many of them spoke to Congress related to their trial free press issues as well as speaking with members of Congress about the need for better access to government health information. So 1966 was a very important year, and 1966 was the year that Sheppard v. Maxwell was decided, and some journalists, primarily pointing to that ruling, indicated that they’d had a step back as a result of that ruling because people working in the criminal justice system were being very cautious trying to follow what they believed were the directives from the US Supreme Court.

Will Mari: And typically judges sorta take their cues from Supreme Court with how they engage with the media, it seems like, and especially at that time. Is that true?

Erin Coyle:  Yes. Well, in 2015, I interviewed Judge Braswell.

Will Mari: That’s right.

Erin Coyle:  Asking about the order, and he was very clear that his intent in writing this order was not – so I repeat not an attempt to restrict press freedom.

Will Mari: Yes.

Erin Coyle:  And he said they were not trying to do anything nefarious with this rule of court. They were simply trying to protect the fair trial rights of criminal defendants, and they believed that the U.S. Supreme Court Sheppard v. Maxwell opinion required them to protect criminal defendants’ fair trial rights and to be very careful to come up with ways to be able to do that. So all they were trying to do with this order was to clarify their commitment to protecting fair trial rights as they were required to do.

Will Mari: So their – their reaction was kind of one of incredulity, like we’re – we’re trying to help here and – and is – is that fair to characterize their reaction as one of sort of surprise about the coverage of their ruling in North Carolina?

Erin Coyle:  Well, I didn’t interview miss – when working on this article – when working on this article, I interviewed Judge Braswell.

Will Mari: Mm. Mm-hmm.

Erin Coyle:  I also reviewed Judge Mallard’s papers.

Will Mari: That’s right.

Erin Coyle:  And Judge Mallard explained to me the intent for that order, and it was clear that both judges felt as if their order had been misunderstood and that the intent for that order had been misunderstood.

Now, Judge Mallard’s papers included newspaper clippings paper-clipped to envelopes on which he had handwritten notes about the media and getting it wrong.

Will Mari: Interesting.

Erin Coyle: Or the media mischaracterizing their order.

Will Mari: Fascinating. Wow. So you saw some real time commentary kind of internally that was private by the judges about this.

Erin Coyle: Yes, and the comments that I read made it appear that the reactions to this order likely were painful because they – the order was misunderstood in some circumstances. And the judges weren’t trying to silence the press. Their intent was not to bully the press or to gag the press. They were simply trying to clarify that they were committed to protecting fair trial rights for criminal defendants. And some people did misunderstand the order.

Will Mari: Mm. Mm-hmm.

Erin Coyle:  So both of those judges were in Wake County, North Carolina, at the time that they wrote the order. And I think there was a little bit of confusion because at that point in time, superior court judges could do what was called riding the circuit, which meant that they would be assigned to be in one county for a set period of time, and at the end of that period of time, they would be assigned to serve another county. It might be because of that that some public workers in other counties in North Carolina cited the Wake County rule of court as the reason that they couldn’t release things such as accident reports.

Will Mari: Yes. Sort of taking it a bit too far, you know, at the local level.

Erin Coyle:  Yes. At the very least, it was a little bit of misunderstanding about what that order covered and what that order was intended to cover. And for journalists, they pointed to these examples of accident reports not being released, which they did not think logically fell under the scope of the order.

Will Mari: Yes.

Erin Coyle:  And they pointed out these examples as threats to the public’s right to know about the criminal justice system and then pointed to those examples as the potential for secrecy to be a problem.

Will Mari: And do you think that that was kind of – is that kind of something that was, um, I – I don’t wanna say legitimate, but do you think that they were onto something at that time or do you think if they had only understood the motivations of the judge, they would have maybe had a calmer reaction? ‘Cause I – I suspect that there was quite the impasse for – you know, for some time afterwards.

Erin Coyle:  Ultimately judges and journalists did communicate about these types of orders and the intentions behind them and about journalists’ concerns.

Will Mari: Yes.

Erin Coyle:  And that’s where the turning point came about.

Will Mari: Okay.

Erin Coyle:  And at that point in time, there were journalists in a number of states advocating for journalists to work with judges and lawyers who were members of bar associations, for all of them to work together to create what were considered voluntary guidelines. And those guidelines would recognize the concerns that judges and lawyers had regarding the potential for news coverage of the criminal justice system to hinder criminal defendants’ clear trial rights. Those guidelines also would consider journalists’ needs to cover these proceedings. So one of the things that some local journalists in North Carolina, notably Sam Ragan, who was then the executive editor of the Raleigh News and Observer, and local judges including Judge Braswell did was they worked on a cooperative group to address the needs of the press and the needs of the court system to come up with some guidelines. And through those cooperative discussions, they came to a better understanding.

Will Mari: Oh, and by May of ’68, it seems like there was something that was pretty workable that had been drafted by Judge Braswell as well as Ragan that became sort of the model for other – other states. Is that – is that true?

Erin Coyle:  Yes. The original guidelines that I have found appear to come out of Oregon and Washington.

Will Mari: Okay, that’s cool. [Laughs]

Erin Coyle:  And in Sam Ragan’s files, I found copies of the Oregon voluntary guidelines and the Washington voluntary guidelines, correspondence between Sam Ragan and a journalist in those states. And North Carolina followed that trend to have guidelines that – that members of the bench, bar, press, broadcasters and, um, some law enforcement officials all weighed in on and agreed upon. What’s important about those guidelines is that they’re not legal documents.

Will Mari: No, they’re – yeah.

Erin Coyle:  These were simply cooperative agreements through which communication helped all of them understand one another’s needs and it allowed for journalists to consider those needs when they were making decisions about what to cover and what to report.

Will Mari: And it is actually fairly remarkable, you know, that they have – they seemingly have worked more or less with some major setbacks here or there, uh, uh, since then. Is that – is that true right through the present moment that these – these voluntary guidelines are still – still useful and are still helping people? I mean, what are the implications today for lawyers and for journalists in the wake of – of this example of cooperation from 1966 to 1968?

Erin Coyle:  Last year, I attended an event that brought together journalists and journalism educators and judges to discuss how journalists cover the courts and why we cover the courts the way we do and what sorts of tools and access journalists need to be able to cover court proceedings effectively. And I learned a lot from those conversations. Like, those types of conversations are very important to have and to continue having for the press to be able to continue having access to court proceedings, for the press to make it clear why it might be helpful to be able to have a laptop in a courtroom when covering a proceeding or why the public might expect that a journalist would be tweeting during a court proceeding. And some judges are allowing selectively for journalists to use social media or for journalists to use laptops during court proceedings, but it’s definitely something that requires conversation between journalists and judges for judges to be able to trust that when we do use the tools, we will do that in a responsible way that is not likely to threaten the fair trial rights of criminal defendants.

Will Mari: It is a – a pretty cool thing to see the – the collaboration that is respecting the – the rights of journalists, the – the free press, but also the rights of – of people involved in the trial, the fair trial kinda work itself out through these – these arrangements and, uh, that’s – that’s a pretty profound legacy it seems like of that – of that incident you studied from that era.

Erin Coyle:  It is. So as I was going through Justice Mallard’s papers, I saw letters that he was receiving from other people around the country asking for copies of the order because attorneys and judges in other parts of the country also were grappling with the question of how they could make sure that criminal defendants’ fair trial rights were being protected, and they were asking for copies of the Wake County superior court order as an example of what they might be able to do.

Will Mari: That’s pretty cool. I mean, I’m so jealous of the – the, uh, number of really cool finds you – you found in your research, but was there anything that was really hard to locate or a special challenge for you as you went through this project?

Erin Coyle:  I think this is an amazing project, but I first learned about Sam Ragan’s advocacy for freedom of information when I was a doctoral student at the University of North Carolina. And years passed before I was able to find more material to be able to keep doing research on this project. I was very fortunate to find Judge Braswell and very fortunate that he was willing to talk with me about this experience. It also was amazing to be able to find Judge Mallard’s papers and have those be publicly available to be able to review, to see the clippings that he saved as well as letters back and forth between the judges and a draft that Judge Braswell had written as defense of the order that they had written, clarifying their intentions for writing the order. Those materials were very important to go through. In fact, this was an article that necessitated telling both sides of the story. It’s a story I first learned through press coverage and through journalists’ writing about the order was quite different than what I learned by reviewing the other side of the order as well.

Will Mari: Yes. You – you did such a wonderful job of telling sort of the – the back story and what was happening in the judges’ minds as far as you can, of course, with history, but that’s what I found so delightful about this article was it was really quite comprehensive and fair to what was happening inside the judicial system and with these judges and Judge Braswell in particular. That was such a – a deep vein of – of really insightful commentary that is I think pretty unique in media law and media history at the moment, so I – I’m very impressed by your work and so are many other people.

Erin Coyle:  Thank you very much. I’m really grateful to be able to do this article and find a home for it. I believe it’s a really important story and that it can be insightful for us today. We’re still in a time in which it’s very important to be covering the criminal justice system and there are many questions about how journalists can be covering the criminal justice system and covering it in a way that people are informed as close as possible to the way that we expect to be informed today, but also in a manner that criminal defendants’ fair trial rights are respected. It’s an ongoing issue, and it was really a privilege to be able to explore how judges and journalists addressed this issues decades ago.

Will Mari: Well, that’s awesome. Thank you so much for – for all those – those, uh, insights that I – I wouldn’t have gotten if I hadn’t had a chance to talk to you today. Um, I guess one final question, Erin, you know, why do you think journalism history matter?

Erin Coyle:  That’s an excellent question. Journalism history is extremely important. It’s important for us to know what happened in the past for us to understand how we got to where we are today and where we might be able to go in the future. And I believe that we can make better-informed decisions about what we want to do and what we want our profession to be if we understand what it has been in the past. And if we’re able to look at incidents like this that happened in the past, we can think through how it was addressed. Uh, for this particular article, I think there’s an important lesson that comes from this is that journalists advocated for the people’s right to receive information and they advocated for their right to be able to report on news. That advocacy required them to go beyond writing opinion pieces on the opinion page. They were actually going and speaking to members of the American Bar Association, going to judicial conferences, going to local community groups to talk about the issues, to explain to them what news was and to convey to the public what their values are.
It – it’s very important for us to remember in today’s environment that not everyone understands the intent of journalists or the role of journalism in society, and journalism history helps us see ways that journalists effectively have educated others about what journalism is and what journalism is intended to be, and I think it provides us with examples of how we can continue advocating for journalism.

Will Mari: Thanks for tuning in, and thanks again to our sponsor, author Nick Hirshon. Until next time, I’m your host, Will Mari, signing off with the words of Edward R. Murrow, good night and good luck.