More on the Free Press, Fair Trial Debate

Host: Richard D. Heffner
Guest: Sol Wachtler
Title: “More on the Free Press, Fair Trial Debate”
VTR: 12/18/79

I’m Richard Heffner, your host on The Open Mind. In 1956, nearly a quarter of a century ago, I led our first Open Mind discussion of the conflicting interests involved in the free press, fair trial issue. We’ve approached this subject that is so crucial to the responsible conduct of a free society many times since. And today, as our courts and our press see continually to square off on this issue, I’ve invited Judge Sol Wachtler of New York State’s highest court, its Court of Appeals, to examine them with me. Twice recently Judge Wachtler has written the high court’s majority opinion on free press, fair trial cases. The first perhaps more to the satisfaction of Sixth Amendment fair trial advocates and the second perhaps more to the satisfaction of First Amendment free press advocates. Perhaps that’s what is meant by “judicial” or rather “judicious balance and restraint”.

Judge Wachtler, thank you for joining me today.

Wachtler: Thank you for having me.

Heffner: I’m going to begin our program by going to an interview that was done with you after the second recent decision on this issue came down. And the interviewer said, “The debate over the issue, free press, fair trial, however, “ said Wachtler, “has produced, quote, a recognition that there is no longer room for absolutists on this issue”. Those who say that the First Amendment is paramount and that the rights of the press must supersede any other right or those who say that the Sixth Amendment must be the sole consideration to fair trial have learned that there have to be accommodations”. Now, it seems to me that it’s obvious that you can live with ambiguity and can accept what I guess is the wise man’s responsibility ever to balance and to juggle the equities of life. But I’m not so sure that others can. And I wonder whether you had truly found that the press and the courts have accommodated in the way you supposed.

Wachtler: I don’t think so, Dick. They’ve had a great difficulty. And what I said I meant. The fact is that I don’t trust absolutists. I think that they exist on the outer edges of extremism. And it’s very difficult to bring them together. So we forget the absolutists, the absolute First Amendment or the absolute Sixth Amendment advocates. And we go to the middle ground and we see if there can be some accommodation. I think first we have to look at this in historical perspective. The press and the courts I would assume are back after the trial of the poor printer, New York’s poor printer, Peter Zenger, in prerevolutionary days were able to relate to one another, they were able to do well. I think that the great problem began in 1964 when you had the Sam Sheppard trial where the United States Supreme Court was very critical of the trial judge in that trial for allowing a circus to take place in his courtroom. And so he said that the press has to be kept under some kind of restraint, that they should not be able to make a shambles of the judicial process by seeking to sensationalize a trial. Because in so doing, they say, you deprive the defendant of his fair trial right. And in that case, you might recall, they sent it back for another trial and eventually the defendant was acquitted. Three months after that the Warren Commission in looking at the Kennedy assassination criticized the press and said that the press coverage of most matters dealing with the criminal justice system was injurious to that system, and that the press again sought to sensationalize crime and criminal activity and sought to, in the reporting of cases, pollute the jury system. That is, taint the facts so that it was impossible for the defendant facing trial to pick 12 men or women who were not predisposed to that particular case. Now, that’s the problem. And the problem is to try to allow the First Amendment access which is guaranteed by the Constitution and still preserve the Sixth Amendment right of the defendant to a fair trial. Both are constitutionally guaranteed.

Heffner: Yet you say that’s the problem, but you’ve only really stated one side of it. Perhaps I have to expect that from a sitting judge. But what’s the judicial system’s downside there? B

Wachtler: Well, the press side – let me, without giving you the judicial system downside, let me give you the press side – the press says that the First Amendment right is the right of the public to know. And the First Amendment says that Congress shall not pass any laws which abridge that right. That the press should be made a part of all criminal proceedings or all justice proceedings or all court proceedings and in that way protect the rights of the public, protect the rights of the defendant, to be certain that we don’t have any star chamber proceedings in this country. And I think that’s a very noble and a perfect ambition. And if you want to be myopic about it, you could say, “Well, my goodness. You know, let the press go anywhere, let them see anything and do anything”. Except again where you have that situation where in exercising that right to the extreme they jeopardize the right of a defendant to a fair trial. We do have the presumption of innocence. Let me give you an illustration. We had a case upstate involving a young man who was accused of murdering his girlfriend. He was arrested and taken to a police barracks and mercilessly beaten, so badly beaten that he had to be taken to a hospital after 48 hours of being held incommunicado by the police. The trial was about to begin, and the defendant’s lawyer moved to suppress the confession so that it would not be seen or be known to the jury. The press was in attendance at that suppression hearing, and printed the entire confession, which was suppressed. The lower court judge – and this was a form of an appeal – found that that confession was beaten out of this man, it was unlawfully taken, it was in violation of his Fifth Amendment rights, and therefore it should not be used or could not be used in the trial. And so this defendant never came to trial. But the press, in printing that confession – and by the way it turned out subsequently this man was undoubtedly innocent, when all the facts came to the fore – but the press, in printing this full confession, which although suppressed by the courts and not used by the courts was nevertheless available to them during the course of the suppression hearing, actually destroyed the reputation of this man. He could no longer live in this particular community or even in this region, because as far as the public was concerned he was a murderer. And that’s one of the reasons, by the way, in the Gannett decision, which was handed down by our court, later affirmed by the united states Supreme Court, it was held that when you do have a pretrial suppression hearing, when the court is to determine whether or not evidence should ever see the light of day, that that hearing, if the defendant should move for it to be closed to the press, should be closed to the press.

Heffner: But you know, Judge Wachtler, I asked whether you could give me the downside of the judiciary’s position here, and you said no, you’d give me the upside of the press.

Wachtler: All right, now let me give you the downside of…

Heffner: Yeah, because I’m not so sure the press would accept what you’ve just said as the upside.

Wachtler: All right. The downside of the judiciary position – and this is a very unfortunate thing; I think this has caused the reaction in part of the inflammation which exists between the press and the courts or the trial process – is that after the Sam Sheppard trial the judges took it, many of them, as carte blanche, a blank check to close all proceedings. And we had wholesale closures from coast to coast where everything from pretrial arraignments to sentencing to pretrial suppressions to trials themselves, many trials themselves, were closed to the press. Then we had the gag rules. And then we had the obtaining of information from pressrooms. And you know about all these cases. And so the press characterizes this – and in many instances rightfully so – as an overreaction on the part of the courts, a license which was exercised too much and abused too much. And so the courts must, in reviewing their own acts, exercise the same kind of restraint that they would want the press to exercise. And that’s why I say that the absolutists on both sides, whether it be the overzealous trial judge who wants to exclude the public and the press from everything, or the reporter or the member of the press who wants to print everything including names of undercover informers so that their usefulness is no longer a matter and perhaps not even their lives, that both of these sides should be in a way brought to the middle so that a combination can be reached.

Heffner: I was going to ask you how large that middle is at this particular moment. You’re an optimistic person. You’re full of life and vigor and vitality, and you say there are the two extremes, one at one end, one at the other, let’s concentrate on the middle. But it seems to me that in our times we have seen more and more of this conflict between the extremists. Is that an unfair observation?

Wachtler: No, no. I think that the conflict was there. I think that first of all I talked about the overreaction on the part of the courts. I think there’s also been an overreaction on the part of the press.

Heffner: What do you mean?

Wachtler: Well, when the first Gannett decision came down, for example, from our court, which was limited in scope, it referred specifically and only to pretrial suppression hearings. The press wrote various things.

Heffner: So did the judges say various things.

Wachtler: Yes.

Heffner: In fact, you even made the comment about judges, “Maybe they read the newspapers and not the decision”.

Wachtler: Exactly, exactly. Because what happened was the first thing the press said was that the New York State Court of Appeals has pistol whipped the First Amendment. The columnist for the New York Times wrote that on the motion of the prosecutor, this now means that no longer can defendants have the advantage of public scrutiny of the imposition being imposed upon them.

Heffner: That was inaccurate, wasn’t it?

Wachtler: Grossly inaccurate. Because actually the closure was on the motion of the defendant, not on the motion of the prosecution. But all these newspaper stories were written, from coast to coast, condemning the New York State Court of Appeals for what they considered an outrageous violation of First Amendment rights.

Heffner: Softness? Softness in this instance? The fear that you were too much concerned with the rights of the accused?

Wachtler: Well, not so much the rights of the accused. As a matter of fact, this didn’t come into play. What they said was that we were not conscious enough of the rights of the public, of the public’s right to know, the public interest which had to be served. And all these things again are very legitimate constitutionally protected goals. But again we do have the Sixth Amendment. The point I made when I referred to judges reacting was that in reading these reports by the press, many of these judges who are the absolutists on the Sixth Amendment side, said, “Well, now we have the license to do that which we would like to do”. Because a judge in conducting a trial is concerned with only one thing, and that is protecting the process. To be certain that the trial proceeds from beginning to end as smoothly as possible without any mistrials, without any necessity to repeat the trial, so that the matter is concluded and the judge can then get on to the next case. Because as you know the courts are terribly crowded and congested. And the best way to have a smooth trial is to have as little interruption as possible. And so they took again the press reports in the Gannett decision as license to close trials. And again the Gannett decision, at least in our court, pertained only to pretrial. Of course when it went to the United States Supreme Court on appeal they affirmed us, but the majority opinion written by Judge Steward talked in terms of the right to an open trial as a right belonging to the defendant, not to the press. So that a defendant could close even the full trial process. Warren Burger, of course, in his concurring opinion said that he limits his view only to pretrial suppression hearings. So we’re not really quite clear as to what the lawyers from the highest court in the country, but in New York State we made it very clear that the press can be excluded on appropriate motion and for good reasons only from pretrial proceedings and then we have limited rather narrowly to suppression hearings.

Heffner: I asked a moment ago whether it had something to do with attitudes toward liberal judges. And you correct me in terms of the particular case under question. But doesn’t the controversy stem to a considerable extent from the feeling on the part of the public through the press that somehow or other the limitations that have been imposed by the court are limitations upon the public’s capacity to understand how bad things are, the public’s capacity to judge how renal, not a court system, but how corrupt, how bad, how malicious defendants have been?

Wachtler: You know, that’s ascribing a motive which doesn’t exist as far as the courts are concerned.

Heffner: No, for the press.

Wachtler: As far as the press’ perception? No, because the press well know that many of the hardest, toughest judges have closed trials and many of the more liberals, to use these categories which really escape definition when it comes to a case-by-case basis. But the press well knows that the judges who have closed hearings ranged a broad gamut. And I think by and large with very few exceptions a judge does this – and I think that the press really realizes this in their heart of hearts – a judge does this for whatever motive, the motive is not to either be soft or hard to close the public out of a particular trial for any reasons relating to their view of the particular defendant or the particular defendant’s case. The judge is concerned primarily with not having any interruption in the trial process. He wants to protect that, and he doesn’t want any reversals.

Heffner: That’s almost as selfish a motive as perhaps people have interpreted the press’ motive.

Wachtler: Well, perhaps so. Of course, the judge would say that his selfishness or her selfishness is motivated by the desire to see that justice is being done. And of course I’m certain that the press says that their selfishness is not to sell newspapers, their selfishness is…

Heffner: What you seem to get down to is a case by case decisions making process.

Wachtler: Absolutely. Absolutely. And I can show you judges who have a reputation for being very First Amendment oriented, extremely aware and conscious of the rights of the public and the rights of the press. And yet that judge will close a particular proceeding in a particular trial. We had one very recently right here in New York City, where a judge, who was a very fine jurist and one who you would characterize I would assume as being a learned judge who is very First Amendment oriented and very press oriented, who closed that particular trial, that particular pretrial hearing. And he was affirmed on appeal. He was absolutely right to do so. Because to have opened it to the press would have really polluted the process to the point where he never could have gotten a jury to sit in on that particular trial knowing the – and I don’t want to go into the specifics of that trial – but he never could have gotten a jury to give this defendant a fair trial.

Heffner: Does that mean that there are no guidelines that the court can provide, the high courts in our country can provide for lower courts?

Wachtler: Well, the court does attempt to set forth guidelines. And you can only contemplate so many situations. It’s impossible for a court, and almost improper for a court to set forth what we call black letter law. We don’t write statutes. We take a case at a time. We try within the context of that case to set forth guidelines to give guide…there was a recent reversal of a closure of a judge who’s an excellent jurist who did a very thorough job in trying to ascertain what was right. It just so happens that our court disagreed with that, and so he was reversed. That doesn’t mean that necessarily that we were right and that he was wrong, because having been a trial judge I can tell you that when you’re in the pit, so to speak, when the trial is being conducted and you’re confronted with these decisions and you know you have only one responsibility, not to the great institution of the press and not to the particular publisher who wants access; you have a responsibility to that trial, to see that that defendant is given a fair trial. The judge then acts. Now, when we seven judges sit up in our chambers up in Albany and review his determination we might say in cold and cool and calm reflection that he made a mistake. But that doesn’t mean that we would impugn in any way his motives. He was doing again what he thought was right at the time.

Heffner: What is your responsibility on the high court in terms of setting this case or that case into the larger framework of the public’s perception that the law is fair and the public’s perception that the legal process and the judicial processes open to it? Do you have an obligation only to the determination of the case before you, or to the larger question?

Wachtler: No, we do have an obligation only to the case before us. And there are times when we render an opinion which we know will be perceived by the public, “Oh my heavens, they’re letting a murderer loose”. But it was Judge Cardoza of our court who said that it the constable blunders, the criminal must go free. And so when we do that we know that the public perceives us as doing an outrageous thing. And yet we know it must be done, because there are certain constitutional guarantees and constitutional protections and certain laws enacted by the legislature. And our job is to see that those are carried out, those are carried to fruition. Now, if the law is a bad one, the legislature can change the law. If the Constitution performs some great evil on society, then the people must amend the Constitution. But before that happens, our job is to try to determine the case in light of the existing law.

Heffner: But then Mr. Dooley was wrong, the law isn’t what the judges say it is, and the Supreme Court doesn’t follow the election returns?

Wachtler: Well, I would like to say to you, Dick, that we are a nation of laws, not of men.

Heffner: You would like to say it.

Wachtler: I would like to say it.

Heffner: Right.

Wachtler: I find it difficult to say, because Dooley was right to a great extent. You do have judges – and I don’t exclude myself – who have to consider many factors. So you bring your own experience to bear and you try to do what you think is right, and you’re aware of public opinion and public sentiment. And of course it’s a persuasive factor. That’s why we have appellate courts. If something is determined by a judge on the lower court, in this state for example, it then goes to the appellate division where there are five judges who review what that judge did. And then there’s an opportunity and many cases then go to seven judges in the court of appeals. Then in some cases, as it did in Gannett, it can go all the way to Washington and be judged again by nine judges.

Heffner: Safety in numbers?

Wachtler: Safety in numbers, because each judge brings again a different set of values and different perception. And the hope is that the quintessence is the purity of the law, as pure as law can be.

Heffner: You’re a young man, yet you’ve been on the bench on the Supreme Court of New York and the Court of Appeals for a long time now. And I go back to this most recent free press, fair trial opinion in which you say, “Justice must not only be done, it must be perceived as being done”. And I wonder whether you feel today more than a decade ago justice is perceived as being done, or is it less so?

Wachtler: I think less so. And I think that’s a great tragedy. I think it’s very unfortunate. I think that people have lost a great deal of confidence in the judicial system. And history tells us that whenever that happens – and this was true of Greece in the third century B.C., and Rome in third century A.D. and France under Louis XVI and Italy during the Renaissance period, even in Great Britain in the latter part of the 19th and early part of the 20th century – that’s the decline of the civilization. If people don’t have confidence in the judiciary or the judicial system, then we’re in serious trouble. So our hope is that the opinions can be correct, that we can do what is right, we can do what is just, that the press will strike that kind of balance which will report the activities of the court fairly, openly, and freely, and that the perception will be a positive one.

Heffner: But I gather it hasn’t happened that way.

Wachtler: Oh, I think it hasn’t. And I don’t blame either the press or the courts for that. I think that we’re living in a time when there is a degree of lawlessness, and if someone commits a crime the first one blamed usually is the judge. You know, the judge shouldn’t have let him out. And the public cries for tougher courts and tougher judges. And that’s understandable. Of course when it comes to financing or funding the courts there’s a greater reluctance. If you said to anyone on the street (lost part of transcript here)…police on the street”. But right now, for example, in New York City, where you have something like 500,000 felony arrests in a year and we only have some 5,000 felony trials in a year, we see that of course through plea negotiation and through over indictment and so forth some of them don’t turn out to be felonies. But the point is that we see a large funnel with a very narrow neck. Now, if we got more police and we had more arrests so that we have 600,000 arrests, the neck of the funnel remains just as narrow. There are only so many judges, so many courtrooms, and so many trials which can be conducted.

Heffner: But you’re not suggesting that this society can’t afford sufficient police and sufficient judges.

Wachtler: Oh, of course they can. But you see, when people run for public office and I’ve listened to the pronouncements, I’ve yet to hear someone say that “If I’m elected I will see to it that there are more judges and more courts so that many of these cases can be tried and disposed of”. Instead, when they address themselves to the problems of crime, they say, “I’m going to put 2,000 more policemen on the street”. But that doesn’t resolve it.

Heffner: Judge Wachtler, just two minutes we have remaining. Which way do you think we’re moving now in terms of the free press, fair trial?

Wachtler: I think that there is a reproche mar on the horizon. I see more and more conferences being held, and I’ve attended several of them, where judges and members of the press gather together, where they shout at one another, where they try to resolve differences, where they appreciate the problems which one another faces, and where perhaps each will come off the absolutist stand and perhaps more and more accommodation can be brought to bear. And I think this would benefit the press, it would benefit the courts, and it will certainly benefit the public.

Heffner: Nice theory, but in terms of the confrontations that we in the public continue to read about, that doesn’t seem to be the case.

Wachtler: You read about them in the press.

Heffner: Well, we hear about them from judges too.

Wachtler: very few judges have an opportunity such as I’m being given to tell the other side. And again in the press, and again they have a legitimate function. They want to protect their First Amendment right which is sacred. It’s after all the First Amendment which would indicate that our founding fathers sort of thought it very important.

Heffner: But that’s the public’s right, isn’t it? The public’s right to know?

Wachtler: It’s the public’s right to know. And the public’s right to know is protected by Congress having been prevented from enacting any laws which would abridge the rights of the press. We don’t want censorship. We don’t want a press which is stifled. That’s the beginning of a dictatorial society. Whenever some dictator wants to take over, the first thing they want to grab is the radio and the television and the newspapers, because this is what forms public opinion. So this is a very important right, and the press should protect it, and zealously. We would just hope that there would be some recognition that the judges also have an obligation of protecting their processes, also something guaranteed by the Constitution under the Sixth Amendment.

Heffner: It’s an interesting confrontation here between conflicting rights. And I suspect that our schools, our judicial system, and our press ought all to devote themselves to a continuing examination.

Thanks for joining me today, Judge Wachtler, in our examination.

Wachtler: Thank you very much. Thank you.

Heffner: And thanks too, to you in the audience. I hope that you’ll join us again on the Open Mind. Meanwhile, as an old friend used to say, “Good night and good luck.”

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