The Lindbergh Kidnapping Hoax
Judge Oscar Hallam and the American Bar Association
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SOME OBJECT LESSONS ON PUBLICITY IN CRIMINAL TRIALS
MINNESOTA LAW REVIEW
Journal of the State Bar Association
The purpose of this article is to present some facts and to make some observations pertinent to the subject of publicity in criminal trials. We can easily agree that the major purpose of a criminal trial is to mete out justice to the accused, safeguarding the interests of both the accused and the state. Criminal courts are not established for the purpose of furnishing entertainments to the public, nor to satisfy popular curiosity nor even to educate or inform the public. Publicity in criminal trials is desirable, not for any of the purposes mentioned, but to the end that with a proper measure of publicity, there is better chance that the accused may be fairly tried and his rights of the people of the state fairly conserved.
We can all probably agree that justice is best served by trial of cases in an atmosphere of calm, and that anything that tends to inflame popular passion, or create popular prejudice, or produce turmoil or disorder, is a menace to the fair administration of justice.
I can attempt no exhaustive analysis of conspicuous or notorious criminal trials. There have been too many of them. I shall select a few typical cases which are illustrative, and which seem to furnish some basis for constructive action.
The most valuable for study of all illustrative cases is the trial of Bruno Richard Hauptmann. The crime for which the defendant was charged, was one of the foulest in criminal annals, the prominence of the victims and the esteem in which they were held, the pent up excitement during more than two years of search and lurid stories, all combine to make news of the case of interest around world.
There never was a case so widely publicized. During the Hauptmann trial, Flemington, instead of Washington, became, for the time being, the news center of the United States. The case was characterized by and American writer as "The trial of the century," and by an English writer as "The most sensational American murder trial of the century." The statement made that there were in Flemington during the trial 700 newspaper men including 129 cameramen, was probably not an exaggeration. Motor, plane, telegraph and telephone raced with each other to get the first copy to metropolitan New York for world-wide distribution. This little town, ordinarily with one telegraph operator, had forty-five direct wires, a special teletype machine connected directly with London, a direct wire to Halifax, quick service to Paris, Berlin, Buenos Aires, Shanghai, Melbourne and other capitals of the world. A million words a day over these lines was a slow day. There never was a case that lent itself to greater temptation to lurid or excessive publicity, never a case more provocative of trial out of court, never a case beset with greater menace of disorderly procedure. On the other hand, there never was a case which offered such an opportunity for charting out a course for the proper conduct of difficult criminal trials, for the greater the difficulty, the greater the opportunity. In fact, there never was a case in which publicity agencies and commentators and public argufiers were more unrestrained, never a case which furnishes a better example of things that ought not to have been done. In all, it was a case which was well characterized by the language penned by the Honorable Newton D. Baker in the report of the so-called Baker Committee to which further reference will be made, as exhibiting "perhaps the most spectacular and depressing example of improper publicity and professional misconduct ever presented to the people of the United States in a criminal trial."
There are so many facts in connection with this case that are conspicuous and illustrative that I shall take this case as a major part of my theme.
Details of this case are given in the report of a committee of the Section of Criminal Law of the American Bar Association submitted to the Section at the meeting in Boston in 1936. This report represented practically a year of research and personal investigation. The report is given in full as an appendix to this article.
The Hallam Report - 1935 -1936
The information on which the report was based was obtained as nearly as possible at first hand. The printed record of testimony and proceedings on the trial, compromising eleven volumes, were carefully reviewed and every word said by court and counsel was read. The writer made a personal visit to Flemington, New jersey, where the trial was held, visited the ancient court house, saw the diminutive court room with its small gallery, saw the room used during the trial for an improvised telegraph office, saw the place where broadcasting facilities were installed by means of which the proceedings of the trial were, for a time, surreptitiously broadcast, saw the place where board seats and tables, some of which still remained, were installed to accommodate one hundred thirty-five representatives of the Press, called upon the trial judge, contacted personally or by correspondence the attorneys for the state and the defense, read signed statements of writers who were present at the trial, read hundreds of newspaper and magazine articles dealing with the trial, confirmed newspaper reports by contact with the newsmen who made them, talked and corresponded with some of those who heard parts or the whole of the trial. No question has been made as to the substantial accuracy of the statements of facts in the report.
During the process of its preparation, and in July, 1935, a preliminary copy of the report of the account of the trial was submitted to the New Jersey court of errors and appeals. The court thought it inadvisable to give it publicity before the termination of the hearing of the appeal then pending. In deference to the suggestion of the court, the report was not presented at the 1935 session of the American Bar Association. After the appellate court decision, the committee, desiring to publish the report earlier than the 1936 session of the Section of Criminal Law of the American Bar Association, asked consent for that purpose of the Executive Committee of the American Bar Association. The Executive Committee published the conclusions and recommendations of the report but it was determined that the report itself would not be given out while Hauptmann was alive and under sentence of death. The report was finally submitted to the Section of Criminal Law at its session in September 1936.
I shall summarize the outstanding events of the Hauptmann trial, giving, on some points, more, and on some points, much less, detail than in the committee report
CROWDS AND CONFUSION IN COURT ROOM
Inordinate crowds were permitted in the court room, far beyond the seating capacity of the room, and noisy crowds at that. The record of the court is the best evidence on this subject.
The trial commenced Wednesday, January 2, 1935. On January 4 the record shows the following:
"(laughter). The court: ‘This confusion and laughter is getting to be a kind of nuisance. Unless it is stopped, I shall have to have the court room cleared. If people want to remain here and give the court a reasonable opportunity to reasonably try this case, they will have to keep quiet. Otherwise, we will have to get along without any spectators. Now, Mr.Reilly, what is it you wanted to say?"
"Mr. Reilly: There was a voluntary statement on the part of the witness I would like to have expunged from the record and I would like to have her instructed only to answer questions.
"The Court: There was such confusion here that I couldn’t hear it. Let it be repeated."
Notwithstanding this admonition, the record on January 7 shows that, following an answer of witness Miss Gow there was "Laughter and applause," and again the admonition, "That demonstration must not be repeated again. I have already had occasion to warn people that they must not applaud any they must not laugh in such fashion." An the further admonition that "If the spectators here persist in this sort of interruptions, I am going to clear the court room."
Again on January 9, however, there was "laughter" and the court said: "Let us understand about this thing. Unless the people can keep reasonably quiet in this room, there is no alternative but the rule will have to be to clear the court room."
Again on January 18 a similar warning was announced, with the comment, "There seems to be a coterie of ladies over in that direction of the room who spend a very considerable part of the time in giggling and laughing."
Again, on January 21, following an answer of a witness, there was "laughter" and the court said: There is altogether to much confusion here and we must stop it." Criticism was voiced of the court officers and the court said:
"Some of the officer are here in charge of the jury. Many of them are at the doors, I assume, but there are officers sitting around, apparently in this court room, having no oversight at all over the audience. The officers are here primarily for the purpose of keeping order…..the court has to rely upon the officers who are here for that purpose and I want these officers hereafter to take their stations down in the main body of the court room where this confusion and laughter arises about every fifteen minutes. I want these officers to see to it that that confusion and laughter is stopped."
Again on January 24 the court again warned the people to keep quiet in the court room and avoid all confusion.
A similar direction was given on the morning of Friday, January 25, and again that afternoon of that day, with special reference to the statement that the "aisle that leads to the room where the secretaries work must be kept open. The people who are impinging upon that aisle will have to clear it." And again on that same day the record showed "laughter." The court again admonished the officers and said:
"I want the officer to take those people out of the court room and, in flagrant cases, I want them brought up here in front of the desk and I am going to deal with them and I may mark them up quiet some considerable, before I get through with them. I won’t have this ribald stuff in this court room."
Again on the morning of Monday, January 28, the court said: "The people who would like to talk now had better go outside and talk outside. We cannot hold this court with the people talking among themselves. Have you polled the jury as yet?" The clerk: " I have not. They couldn’t hear me." Later the same morning during the examination of Bruno Richard Hauptmann, the record showed "laughter." Mr.Reilly protested: "This laughter out here from these people the second and third time…… I protest against it," and the court said, "Well, you are quite right in protesting. It would seem as if people who are permitted to come in here in some way, and who have not business here, ought to have decency enough to keep quiet."
Again on the afternoon of the same day, the court said to the attorney general: "Before you proceed, I wish to notify the officers that from this time forward people will not be permitted to stand in the rear of the court room as they are now standing. The situation, I think the officers have somewhat cleared, but they will have to do better from this time forward," and the court ordered, "From this time forward, until the trial is finished, after the seating capacity of the court room is well filled the doors will have to be locked and spectators will have to be denied admission."
However, on the next day, January 29, there was again an admonition. "The people will have to keep quiet. Otherwise we will have to clear out the court room."
Again on January 30, during the examination of Mrs.Hauptmann, Mr.Reilly said: "Mrs.Hauptmann, I am going to ask you to speak just as loudly as you can, because we will want to hear you and you will have to overcome the noise in the courtroom, if possible."
Soon thereafter the record shows the following:
"Mr.Reilly: Your honor, I am obliged to ask you again, please, to ask the spectators back here in this corner to keep quiet, because I can’t question Mrs. Hauptmann.
"The Court: Yes, I think there are too many people standing there. I don’t know just how they get in. Are those people that are standing there on seats, or how is it they are standing?
"Officer Huff: Standing on tables.
"The Court: Standing on tables?
"Officer Huff: These people right in here; and those are sitting on a radiator.
"The Court: Well, let them be taken out. Let those people that are unable to find seats leave the courtroom.
"A Voice: Your Honor, we have seats. These are press seats.
"The Court: Press seats?
"A Voice: Yes, Sir, but in order to work better and get a better view, we have been sitting on the table rather than standing up.
"The Court: Well, I am not directing any attention to you, but I see people standing up against the wall there. Now, this condition will have to be corrected. Mr.Reilly is quite right in protesting that there is confusion here which usually arises in the part of the room where the people are crowded and standing. Now, let the officers clear out these people that can’t find seats."
After all this, on February 6, a communication came to the court from the gallery, stating that "there are people in the entrance to and from the gallery," and it was ordered, "The people who are standing in the entrance to the gallery and other people who are unable to get seated may retire."
The court’s orders were adequate, but their enforcement in the little courtroom was committed to temporary bailiffs who did not measure up to the job.
The crowd was swelled by use of subpoenas issued ostensibly to witnesses but in reality to friends seeking a place in the little court room, which was barely large enough to accommodate the newspaper reporters present in addition to the necessary functionaries in the room. More than a hundred such subpoenas were issued in one day.
It has been said that the Press exaggerated the crowds for the sake of an embellished story, but exaggeration could not add much to the cold Court record.
The Times could not have exaggerated much when it said on January 3 that "Constables on duty at the door admitted 275 spectators without passes to an already crowded court room….men and women sat on the window sills and jammed the small space between the bench and the wall,"
Or the Mirror, when on January 22, under the title "Court jam," it said: "The Bronx subway was never like the court house here," or when it said on January 28 that "the fourth broken court room window was registered at 3:01 during a recess, so chocked to capacity are the window sills,"
Or eye witness Elsie Robinson, who wrote in a signed article in the Cosmopolitan magazine of two vivid impressions of the "terribly overcrowded" court room, "first, my firm conviction of Bruno Hauptmann’s guilt, and second, my disgust at the curiosity seekers who jammed the benches and stood along the wall,"
Or eye witness Edna Ferber, who, in a signed article on January 28,1935, described the court room as "a shambles….planned to accommodate perhaps a hundred, it was jammed with what seemed at least a thousand, seated, standing, leaning, perched on window sills, craning over balcony rails, peering through doorways."
Crowds surged through the streets of the town, eye witnesses say, at the rate of 20,000 a day. They jammed the access to the court house, filled its narrow passageways and, on one occasion, even shattered the glass in the entrance door. With no thought of promoting the interest of justice they jostled and thronged as though at a circus or holiday event, buying eagerly and freely, from morbid venders, souvenir ladders, a reminder of the ladder which was one of the instruments used in the commission of the foul crime.
It is hard to fix responsibility for either the presence or the doings of a crowd, but these crowds within and without the court room furnished provocation, if not justification, for newspaper articles with such flaming headlines as "The Flemington Crowd," "It’s a Sideshow, a Jamboree," "It’s a Holiday, a Freak Show."
There was organized publicity on behalf of both the prosecution and the defense. Counsel for the defense gave out frequent published statements, announced in the newspapers his plan of defense in considerable detail, promised "bombshells" and to spring surprises. Before the trial the chief defense counsel broadcast arguments for the innocence of his client. In a public statement shortly after the trial, he characterized the verdict as "mob justice."
The state’s attorney refrained at all times from broadcasting and refrained generally from public discussion of the case. He did, during the trial, hold regular daily conferences with the Press, as he stated, in the interest of accurate information. Following these conferences, newspapers published freely comments and forecasts purporting to emanate from the state’s attorneys, some of which went much into detail.
On January 3 the Mirror carried, as "Lindy Case Lawyers’ Views," parallel statements of what the prosecution and defense proposed to prove, embellished with some argument. The state was credited as saying. "We have an iron-clad case against Hauptmann and will prove that he murdered the helpless infant." The authenticity of this and of some other newspaper quotations is denied. Very likely the state’s attorney’s denial is right, very likely the Press unduly enlarged upon his conference statements, but such a result was not surprising.
Even the defendant himself issued bulletins during the progress of the trial, such as characterizing the testimony against him as "a lot of lies," and declaring himself as "unafraid." Some of the newspapers published these bulletins with avidity.
From the proverbial small town service of a railroad station agent, who was also a telegrapher, with one messenger boy, the telegraph service leaped to one hundred men, besides messenger boys. No one would question that there was occasion for emergency service. One may disapprove of the fully equipped telegraph facilities installed in this little court house and in a small adjacent to the small balcony of the court room. This was just one of the things that converted the small court house and in fact the court room itself, into a vast news-distributing agency. Publicity and not the administration of justice was the theme in the minds of myriads of people who thronged the little Flemington court house.
The court definitely forbade all pictures taking during the sessions of the court. The order was no more effective than the orders to the court officer to preserve order. Newspapers published photographs galore, photographs of "Mrs.Lindbergh testifying," of "Colonel Charles A. Lindbergh on the Stand," and of "Hauptmann Juror No. 11," of whom it was said in the paper, "Every time he sees a news photographer’s camera lens pointed his way he ducks, averts or cover his face. This picture was made at the trial today"- and manifestly it was.
In the balcony of the courtroom was installed equipment for recording sound pictures of all the scenes and occurrences at the trial. With this were connected wires or cables and instruments on the side wall of the courtroom. This instrumentality’s were plainly visible, but not over-conspicuous, and were not offensive in themselves.
The record for February 4 shows the following:
"The court: … ‘I very much regret to be informed that there have been taken in this court room some movie and talking pictures of the trial, and of course, it is well understood that that was done in defiance of the orders of the court, and I think it is equally understood that it must have been done secretly and by methods that are not commonly understood. Now, this subject matter will be investigated and my only purpose in speaking of it now at this time is to caution the officers that they will, by reason of the secret way in which these pictures are taken, have to be exceptionally vigilant in seeing to it that these contrivances, designed for making possible the taking of these movies, movie pictures and talking pictures, that those contrivances be excluded from the court room, and the officers will have to be very diligent and may be very ingenious to break up this practice. It is problem and it is the problem of the officers to do the best they can to prevent these violations against the orders of the court. All such instrumentalities are to be excluded from the court room it doesn’t make any difference who undertakes to bring them in. The agents and employees of these companies that are producing these pictures in violation of the orders of the court will be excluded from the court room"
Long before and during the trial there was a perfect riot of lurid publicity. Newspapers argued the case in headlines such as "Clues build and iron-clad case against Bruno," and on the other hand, "Fawcett [defendant’s attorney] says he will split the case wide open."
Long before the trial, one newspaper picked out twelve men and women from rush hour crowds at Journal Square, Jersey City, and polled them, and in headlines announced their verdict as "Bruno guilty but has aids, verdict of man in street."
Both sides of the case were argued fully in the Press during the trial. There were arguments unfavorable to defendant such as, ‘Hauptmann shows signs of cracking," "Bruno alibi pierced," "Hauptmann's case crumbles," "Hauptmann, seems . . . on the stand a thing lacking in human characteristics," and comments on his "senseless denials," and his "posing as an out and out madman," as "he told a story which he himself scarce seemed to believe;" sometimes, however, arguing for Hauptmann, there were such arguments as "Bruno witness blasts link to ladder wood" and that "missing inch proved boomerang to state."
The story of the Hauptmann trial shows what may happen on the trial of a case of burning importance and public interest even with a trial judge possessed of high character and eminent legal attainments and entertaining high ideals of judicial decorum. It shows the necessity of firm control from the Bench. It demonstrates that the maintenance of order cannot be left entirely to bailiffs, inexperienced emergency men, unaccustomed to large crowds and to the tension of the cords, and without the training necessary for he occasion.
The Report of the Special Committee on the Hauptmann Case to the Criminal Law Section of the American Bar Association closed with sixteen specific recommendations, which are set forth herein after," and to which the reader is now referred.
THE BAKER COMMITTEE
When the report was received by the Executive Committee of the American Bar Association in January 1936, as above stated, the recommendations of the report were published in full in the American Bar Association Journal, with a prefatory statement by President Ransom of the American Bar Association, and the executive committee voted that the Association create a special committee of its own members to act in co-operation with committees from press and radio organizations to work out sound and practicable standards as to publicity in criminal trials; the Journal also stating that "The recommendations as to the conduct of criminal trials will be the starting point for the work of the joint committee." The Hon. Newton D. Baker was named as Chairman of the Joint Committee. By oversight perhaps the "radio organizations" were not then invited to join in this cooperative movement.
The Baker committee dissected the Hauptmann report and reviewed it in detail. The recommendations of the Hauptmann report formed the basis of the recommendations of the report of the Baker Committee. Of the sixteen recommendations of the Hauptmann report, the report of the Baker Committee said: "They have been carefully considered by the joint Committee Omitting those which seem inappropriate to this report and consolidating others, we recommend. … "Then follow its seven recommendations. It recommends the first, second sixth, ninth, and tenth. The third, eleventh and sixteenth are not mentioned the seventh, eighth, twelfth, thirteenth and fourteenth, and fifteenth are in part approved. The committee felt that experience has not yet made it possible to take an unqualified position on the subject of the fifth, relating to sound registering devices.
The lawyers and the newsmen differed on one point, namely, as to the use of cameras or photographic appliances in the court room. The Baker Committee report, signed by Mr. Baker for the Bar members, by Chairman Paul Bellamy of Cleveland Plain Dealer for the publishers’ Group, and by Chairman Stuart H. Perry of the Adrian Telegram for the Editors’ Group, quoted the recommendations of the Hauptmann committee:
"That no use of cameras or photographic appliances be permitted in the court room either during the session of the court or otherwise," and then proceeds as follows: "With regard to the foregoing recommendation, the committee is unanimous in recommending that the use of cameras in the court room should be only with the knowledge and approval of the trial judge, the lawyer members of the committee believe that in addition to the knowledge and approval of the trial judge, the consent of counsel for the accused in criminal cases and of counsel for both parties in civil cases should be required to be secured. The newspaper representatives believe that the consent of the trial judge is full protection both to parties and to witnesses, and that no further requirement should be interposed."
The newsmen contended that ‘the public has, by constitutional guarantee, the right to the most complete information as to what is afoot in its courts," and that, "provided the picture is made without disturbing the decorum of the court or otherwise obstructing the ends of justice, the publisher of a newspaper has the right . . . both to make the picture and to print it," and that this right "is part of the constitutional privilege of the press to print the news, and also part of the people’s constitutional right to be informed by its free and full publication."
The radio men were added later to the joint committee. They concurred in the view of the newsmen and contended that the same rule should apply to sound-registering devices as to cameras.
The differences between the groups are not so fundamental as they may at first seem. All agreed that there should be some proper regulation or restriction of publicity and of the taking and use of pictures in connection with the trial of a criminal case. My own views are expressed in the Hauptmann report, but it may be that it is not of vital concern whether the matter is covered by fixed rule or is subject to the approval of the trial judge. Any rules we may have for the trial of a case mean little unless we have a trial judge with a sympathetic will to enforce them, and if the trial judge has the will to do so he is generally able to regulate and conduct a trial and control its publicity without sacrifice of the dignity of well-ordered court room decorum, and without charge of invasion of the constitutional right of freedom of the press.
The House of Delegates of the American Bar Association, at its first session on September 27, 1937, heard the Baker Committee report and passed a resolution "That the committee report be approved to the extent that it has been concurred in by the three groups; and that the committee be continued for the purpose of obtaining, if possible, an agreement of the three groups concerned."
However, the committee on Professional Ethics and Grievances which had been considering recommendations for amendments to the Canons of Professional and Judicial Ethics had recommended to the Association a number of amendments and among them a new canon 35, which reads as follows:
"Improper Publicizing of Court Proceedings: Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting of court proceedings are calculated to detract from the essential dignity of the proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted.
Through unfortunate lack of co-ordination this canon was passed by the House of Delegates at a session on September 30, 1937 without mention of the resolution of September 27."
"The effect on the newspaper fraternity," said the chairman of the American Newspaper Publishers’ Association group on the Joint committee, "was instantaneous." Commenting further on these resolutions, he said: "The American Bar Association … took the somewhat inconsistent position of adopting the Baker report and at the same time declaring through the New Canon 35 a very transigent attitude toward the press." … He complained that the lawyers had "asked us to co-operate with them to work out a formula by which we could live together in peace, and on the other hand kicked us in the groin."
However, the American Newspaper Publishers’ Association in 1939 continued its committee, adding that "so long as the sentiment of the American Bar Association remains as set forth in the New Canon 35, your committee is not of a disposition to propose any further co-operative moves" but recommended that the committee be continued on the ground that the mere existence of these committees instructed to explore possible further co-operation is a healthy manifestation of good will."
The Bar Committee, at the session of 1939, again brought the problem to the attention of the members of the Association, and reported that it would not be surprising to find that the provision of Canon 35 will not be followed unless it meets with the approval of the general public, that its approval is, in a large degree, conditional upon the support of the Press and Radio which play such a large part in the formation of public opinion. The committee did not recommend the modification of Canon 35, but urged that the committee be continued "with the understanding that the subject matter of Canon 35 is not removed from the field of further discussion." There the matter now rests.
It avails little to spend time in criticism of the sins of omission and commission in connection with the Hauptmann trial unless we can profit by the experience of that trial and chart out a course toward better standards. It does seem that experience has amply demonstrated that such a course is practicable.
THE SOHL-OWENS CASE, ESSEX COUNTY, NEW JERSEY
One of the outstanding examples of what can be done is furnished by another trial in New Jersey in the Court of Oyer and Terminer of Essex County, namely, the case of State v. Sohl and Owens, the trial in February, 1938, of two girls under the age of twenty-one, who were tried and found guilty of murder in the first degree. The case was much publicized. It was front page news all over the country. While it did not rival the Hauptmann Case, it did give promise of a deal of flamboyant publicity Judge Brennan, to whom the case was assigned for trial, undoubtedly had in mind the example of the Hauptmann Case. He created a Committee of newspaper men composed of reporters from three local newspapers. On inquiry of the larger wire services and the leading New York newspapers, it was discovered that approximately twenty-five men and women would be assigned and in court daily, and the committee undertook to supervise their credentials. The co-operation of the court house board and superintendent was enlisted to make a physical layout to meet the necessities of the trial. Benches of ample proportion, numbered, were assigned for press purposes. On the press table were tags corresponding to the numbered seats, and indicating the reporter or newspaper to which such seat was assigned. Before the actual trial began, the court, in conference with all of the members of the press, indicated that no messengers would be permitted to circulate about the court room for the purpose of taking up newspaper copy, but court attendants were assigned at either end of the table, and any reporter could hand his copy periodically to whatever attendant might be near. This was transmitted by the court attendant to a press room opposite the court room proper, where the sending service had been set up for the various newspapers and press associations. In conference with the press and the photographers, the court indicated that no photographs would be permitted in the court room. The defendants, through their attorneys, were apprised of their right of privacy and the jurors apprised as well of their similar right. A poll of the jurors indicated that it was not their desire to be photographed at all in the court and their wish in this connection was respected. The defendants, through their attorneys, agreed to have one photograph taken in the court room when the court was not present, and this was done. No other photographs were taken at any time in the court room and the agreement with the court was complied with in all respects save that one photographer who attempted to violate this rule was promptly detected and as promptly disqualified. The opening on the prosecutor’s part was a lucid and dignified projection of what the state expected to prove, and the opening for the defendants was on a like plan. The case proceeded with a minimum of legal pyrotechnics.
At the close of this case, the comments of the metropolitan dailies and of the local press were uniformly commendatory.
The Newark Sunday Call on February 20, 1938, had this editorial:
‘The Sohl-Owens trial which attracted wide attention throughout the country demonstrated that sensational criminal cases can be conducted with decency and dignity without much difficulty. All that is needed is a firm judge and lawyers who are mindful of their professional obligations. Newspapers and the public take their cue from the Bench and Bar. Judge Brennan directed the trial with wisdom and justice.
In Cleveland in 1937 the state had the difficult task of working up a case against two so called labor racketeers. When the case was presented to the grand jury, the county prosecutor asked the newspapers to refrain from publishing the names of the witnesses who testified before the grand jury. The reason, as one of the publishers stated, being "as obvious as the nose on one’s face," the newspapers gladly consented. Indictments were returned. When the case came up for trial, the prosecutor made a further request, namely, that the newspapers refrain from taking photographs of the witnesses in court. The reason was the same as before. As one of the publishers stated:
"The prosecutor was not quite certain that some of his witnesses would testify, as they had been threatened. He felt that if they were confronted with a battery of cameras and the certainty that their faces would be emblazoned all over the newspapers" front pages, a number of them would be under strong temptation to forget some of the testimony which they had given to the grand jury, if not openly to perjure themselves." Again the newspapers consented, and this publisher added, "I could dig up a number of similar cases in Cleveland in the last few years.
THE TARQUINIO CASE
The supreme bench of Baltimore City has since 1928 had a rule known as Rule 48 which provides as follows:
"No photographs shall be taken in any court room over which the supreme bench of Baltimore City has jurisdiction . . . nor so close thereto as to interfere with the proceedings or decorum thereof, while the court is in session, or at any other time when court officials, parties litigant, counsel, jurymen, witnesses or others connected with proceedings pending therein are present."
The court applied this rule on arraignment of Aurelio Marco Tarquinio, so-called torso murderer, a case which involved national publicity. The court, on its own motion, made an order signed by Judges Frank and Niles reciting that the character of the alleged crime
"has resulted in a great amount of publicity with respect to the circumstances surrounding its commission and the prospective events of the trial. The publicity has caused serious concern to the judges of this court, who are charged by the constitution and laws of Maryland with the duty of seeing to it that every accused person shall have a fair and impartial trial. It must be obvious to every citizen of Maryland that one of the essential conditions of a fair and impartial trial is that the defendant shall be tried only upon the legal evidence adduced in court against him, and that prior to his trial nothing shall be done which may improperly influence either the court or the citizens from among whom his jury may be chosen, whether such influence is likely to work for him or against him. It is the duty of the court, without application by the state or by the defense, to see to it that the constitutional rights of every accused person are preserved, no matter how serious the appearance of the crime or how revolting the manner in which it may apparently have been committed. It is equally the court’s duty to see to it that the rights of the state are preserved against improper influences in favor of the accused. This duty of the court is the more imperative when popular excitement exists relative to a given case. The duty extends not only to persons who have been formally indicted, but also to persons who have been arrested and are in custody, with or without counsel, prior to indictment," and it was ordered "That in connection with any case which may be pending in this court, or in connection with any person charged with crime, and in the custody of the police . . . any of the following acts shall be subject to punishment as contempt:
"(1) The making of photographs of the accused without his consent.
"(2) The issuance by the police authorities, the State’s Attorney, counsel for the
defense, or any other person having official connection with the case, of any statement relative to the conduct of the accused, statements or admissions made by the accused, or other matter bearing upon the issues to be tried.
"(3) The issuance of any statement or forecast as to the future course of action of
either the prosecuting authorities or the defense relative to the conduct of the trial."
I am advised that there was no adverse comment by the newspapers on this action of the court and personal inspection of the files of the Baltimore papers reveals none. The orders of the court were obeyed.
UNITED STATES DISTRICT OF MINNESOTA
In the United States district court for the district of Minnesota, prompted by the excesses of the Hauptmann trials, the judges, in May, 1936, adopted a rule as follows:
"No camera or other picture-taking device or voice-recording instrument shall be brought into any federal court building in this district, for use during the trial of any criminal case, or for use in any proceeding incident to any criminal case, or for use during any session of the United States grand jury."
In July, 1939, the federal grand jury in St. Paul began an inquiry of recent W.P.A. strike violence in Minneapolis, which resulted in two deaths. It was a tense situation. There was excited public discussion and front page newspaper publicity. Early in the investigation, Judge Bell, in charge of the grand jury, announced: " I have been advised that some of the witnesses are deathly afraid to come over and tell the truth before the grand jury and for that reason I am asking the cooperation of all the press that no names or identification of witnesses by given out or published if obtained." The judge barred reporters and the public from the part of the federal courts building where the grand jury met. He warned some newspapers which had taken photographs of arriving witness against publishing the pictures. The newspapers co-operated and acquiesced in the direction of the court. No names of witness-no photographs-were published.
Beset with difficulties have been some efforts of the Bar:
In Los Angeles the Bar Association in 1937 complained that there was
"A growing tendency…..to follow the pattern of the Hauptmann publicity;…photographs of evidence to be introduced," it was said, "were published in the newspapers, accompanied by statements as to what one side or the other expected to prove and thought would be the effect of it, also, by interviews of attorneys engaged in the case. Throughout the hearings the proceedings of the court were pictured and published in the midst of a running trial of the merits in the newspapers." On one occasion, it was said, representatives of the Bar Association had prepared "a large scrap book containing a hundred or two hundred pictures of court room proceedings taken during the progress of trials in the Los Angeles superior court."
There were radio attacks upon Los Angeles County superior court judges, and in one case contempt proceedings were instituted by the Los Angeles Bar Association against one man for broadcasting attacks.
In the latter part of 1937, the presiding judge appealed to the Bar Association for effective action to protect the court against recurrent attempts to influence judicial action, suggesting "a committee to be on lookout for improper statements over radio or in press that might have a tendency to hinder, delay or obstruct justice to the end that we may have more cases tried in the courts and fewer in the press."
The Lost Angeles Bar Association on December 13, 1937, passed a resolution
"that it militates against the dignity of court proceedings and the respect which the general public holds for courts to allow radio broadcasting equipment or motion picture or sound recording equipment (except for official phonographic recording purposes) or to allow photographs to be taken in court rooms and the board of trustees recommends that the practice be discontinued."
The foregoing resolution was forwarded to the superior court judges. No action was taken by the judges.
Then came, in February, 1938, the trial of Paul A. Wright, charged with murder of his wife. During the Wright trial pictures were taken during court sessions and published with little or no restraint. The Picture Magazine "LIFE," on February 14, devoted a double page to court pictures taken during the trial. The magazine stated that "the photo-chronographic record of the trial has been extraordinarily complete; its highlights to date are reproduced on these pages," announced as the "biggest day of the trial, when spectators saw Wright climb on the witness stand," told how "on the stand Wright’s nerves cracked," and there are pictures of "Presiding Judge Ingall Bull (on the Bench), in the foreground the lawyers, at the right the jury," and Wright on the stand pictured in various stages of "cracking nerves" as he broke down. So complete was the "photo-chronographic record of the trial" that in one case a published picture taken by one photographer showed another photographer with his tripod set up at a corner of the jury box apparently taking a picture in the direction of the judge. Evidently both photographers were "shooting" the proceedings from different angles at the same time. "LIFE" characterized the court room scenes of this trial as "the most spectacular juridical circus since the Hauptmann Case," and well it might.
The Los Angeles Bar Association adopted a resolution condemning this type of judicial conduct and newspaper publicity and sent a copy to the trial judge. Thereafter the Bar Association created its committee on judicial independence. A section of this committee conferred with the district attorney’s office, and that office cooperated in eliminating statements of counsel concerning evidence to be produced, and it is said the bar as whole has cooperated reasonably well. a section on radio publicity conferred with representatives of broadcasters, met with sympathetic cooperation and arrived at a satisfactory solution of the question as far as concerns the radio. Conferences with representatives of the Press met with less success. The matter of court room pictures was finally presented to the judicial council. The council referred the matter to a committee and adopted a report of the committee that the practice of taking photographs in court room during trial was being "abused," that a rule prohibiting such practice was unnecessary because of the resolution of the California State Bar in harmony with Canon 35 of the American Bar Association, and adopted "as the expression of the views of the Council," the statement that the observance of the principles there in contained is "essential to the proper and orderly administration of justice." From several members of the council, there came suggestions that the controversy be adjusted amicably between the members of the bench and bar and those desiring to take photographs in court room, that "in the last analysis it is a matter for the consideration and enforcement of each individual judge in the conduct of his court," that it seems better to try to get the co-operation of both judges and newspapers."
There has been much reciprocal intense language emanating from both the Bar and the Press, but without treaty or entente "the taking of pictures of the proceedings during the trial of cases in our local courts," says the president of the Los Angeles Bar Association, "seems to have become practically a thing of the past," and in the more recent Shaw Case in Los Angeles in February, 1939, a case which lent itself to much publicity by reason of political prominence of the defendants, the presiding Judge forbade the taking of any pictures during court sessions. The device of stimulated pictures was resorted to. A conference was had between the Judge, the attorneys in the case, representatives of the press and the State and Local Bar Association. Following this conference, there were no more simulated photographs of the proceedings on that trial.
No disciplinary proceedings were taken in connection with these cases. The Bar Association did, however, bring contempt proceedings against the Los Angeles Time Mirror, based on news and editorial publicity in other cases. Most important of the charges was that the newspaper, after conviction and before sentence of two criminals charged with assault in the course of a labor disturbance, published an editorial entitled: "Probation of Gorillas," in which the paper argued that "Judge A. A. Scott will make a serious mistake if he grants probation to Matthew Shannon and Kennan Holmes. This community needs the example of their assignment to the jute-mill." The Times was held to be in contempt for arguing editorially the question of probation while the case was pending for sentence, an appeal was taken and the trial court has recently been affirmed by the California supreme court. This controversy brought a barrage of newspaper criticism. The Bar Association was accused of seeking to "Nazify the Courts," to "create star chamber sessions." "Shall the people own the courts or shall the lawyers own the courts?," asked one. "is it not the right of the people to know the truth, the whole truth?," asked another, and "actually, the desire, purpose and plan is to vest control of the courts in a Bar Association ‘boss’ or ‘bosses’," said one. Another opined that "Physician cure thyself" might well be said to the Bar Association of Los Angeles County, "a county in which judicial scandals have been numerous."
It is easy to speculate as to what might have happened under conditions which never did exist. It may be that if the judges had all taken control of the situation in Los Angeles, as did the judges in the cases cited in Newark, Baltimore and St.Paul and as all the authorities did in Cleveland, official firmness and diplomacy might have avoided much of the crimination, recrimination and repressive litigation and might have avoided what "LIFE" characterized as a "Juridical Circus." Perhaps the situation was not subject to the same control that worked so well in these other jurisdictions. This much is certain, that the bench and other law enforcement authorities did control situations which presented difficult problems in the cases mentioned and did secure general co-operation of news distributing agencies and did secure satisfactory results.
While these things were going on in California an interesting case was proceeding in Oregon. In Irwin v. Ashurst the trial judge, with the consent of counsel, permitted the installation of a microphone in his court room for the purpose of broadcasting the proceedings in a murder trial. A witness for the state bought an action for libel, alleging that defendant’s attorney in his argument to the jury used defamatory language, and charged liability against the attorney for uttering the language, against the broadcasting company for broadcasting the language, and against the trial judge for permitting the broadcast to be done. Answering the claim of immunity from liability for the defamatory words because published in the course of judicial proceedings, the plaintiff contended that the installation of the microphone in the court room for the purpose of broadcasting the defamatory matter was an "extra judicial and illegal act" and that the absolute privilege of court and counsel does not extend to mater distributed " beyond the four walls of the court room." The court denied all of plaintiff’s claim. It held that the installation of the microphone for broadcasting was not an extra-judicial or illegal act. The court said,
"Undoubtedly there is a diversity of opinion as to the propriety of installing a microphone in the court room for the purpose of broadcasting judicial proceedings, especially in cases involving sordid details of crime. This court is not prepared to say that it is unlawful per se to install a microphone in a court room to report judicial proceedings. The American Bar Association frowns upon such practice. It is a matter for the determination of the trial judge."
It was held that the rule of absolute immunity attached to both Judge and Counsel and that the fundamental principles of the law of libel applicable to publication of judicial proceedings by newspapers apply also to the broadcasting of such proceedings by radio stations.
It is interesting to note the varying reactions from the events herein narrated, and the discussion and activities resulting from them.
Editor R. R. McCormick of the Chicago Tribune, a member of the American publishers’ group of the Baker committee, in December, 1939, addressed the Bar of Chicago on "Newspapers and the Law." The foreword of his published address states that "The attack on the Los Angeles Times and the attitude of the American Bar Association Committee seemed to make it desirable to present my idea of the subject discussed." He started with the premise that "the public now is accustomed to, demands, and receives a higher standard of conduct from its judges than from its other officials," added that "there is nothing sacrosanct about the courts in this country, what goes on in them may be discussed and criticized." "It is neither fair nor lawful," he said, "to comment on a pending case in a fashion to prejudice the rights of a party to the litigation, but the obstruction to justice in a pending case must be actual and demonstrable, not derived from theory or possibility." He refers to the use in England of the process of contempt in restraint of comment on pending criminal cases. He criticized the English judicial system as a "medieval institution," which we should not set up "as the model for our tribunals," asserts that "the press is not now, and never has been free in England, that where parliament has failed to impose a sufficient gag, the courts have found one;" objected that "it is now proposed to change the constitution by importing the English legal fiction that telling what has transpired will interfere with a fair trial and the rights of some accused person," and, he said, "it will be a dark day when, in order to ape the judicial system of England, we hobble any one who, for whatever motive, enlists in the war against crime."
As to the taking of photographs, Colonel McCormick said: "The repetition of what has been seen does not jeopardize any right." He denied that telling what has transpired will interfere with a fair trial and the rights of some accused person. "The purpose of a reporter in court," he said, "should be to state accurately what transpired," and "Photographers need be no more conspicuous than the reporters or the spectators," and as a form of reporting: "Camera reporting can no more be resisted that the reporting of the debates of parliament could be resisted two centuries ago. . . . I venture to say," he said, "that the use of the camera in the court will become as common as the shorthand reporter."
A different picture is presented by Columnist Walter Lippman in an address before his fellow newspaper men assembled in meeting of the American Society of Newspaper Editors on April 18, 1936. Mr. Lippman made a very refreshing contribution to this subject. He referred to the then recently appointed Baker Committee, thought the American public would "be glad to know that the larger aspects" of the Hauptmann cases are being studied by the American Bar Association, the American Society of Newspaper Editors and other organizations representing the newspaper profession. His address was an appeal for joint action by press and Bar. After rehearsing the vents of the Hauptmann trial, much as they had been narrated in the Hauptmann report, but more briefly, he concluded that:
"In respect to the trial in court, it is the right and it is the duty of the judge to keep order in his court and around it. He does not have to admit more spectators than can be seated comfortably or more than a reasonable number of representative newspaper men. He does not have to admit cameras, radio broadcasting machinery, special telephone and telegraph apparatus to the court house. The streets can be cleared of crowds and the traffic can be kept moving. Moreover, he does not have to submit to having the case tried simultaneously in the newspapers. Under any realistic conception of the judicial progress, comment on the evidence by newspapers, speakers on the radio, by the lawyers, is contempt of court. It should be treated as such. This is the English law, developed not by statute but by judicial decision, and no one, I think, will wish to say that the English have any less respect for freedom of speech than we have." It is, therefore, he further said, "upon the officers of the law that we must place the primary responsibility for effective action which will prevent a repetition of these abuses in the future," and "this," he said, "is where we, as professional newspaper men, have our primary responsibility . . . It is our duty, I believe, to make it plain to the regular officers of the law that we expect them to administer justice in an orderly way, that we shall attack them if they do not, and that we will defend them if they do. Then let them choose between the yellow press and the reputable press, and let them find out whose favor counts the more."
The Hauptmann Report, the Baker Report, the Commentaries to which reference has been made, constitute but a small part of the literature which followed the Hauptmann trial. Comment was widespread and criticism was keen. This comment and criticism have not been without avail. Looking forward, there are in the United States more than 3000 courts which try criminal cases. It is no small matter to co-ordinate trial practices in so many courts and jurisdictions. We can only look for reasonable measure of result. We may not all agree as to detail, but these are some fundamentals on which it seems to be we should agree.
First, we cannot look for much relief from legislation. No more statutes are necessary and more statutes would not help.
Second, contempt proceedings, injunctions, give promise of very imperfect relief.
Third, public opinion is a powerful factor in promoting any forward looking movement. Intelligently formed and rightly directed, nothing can withstand it. The public discussions of the occurrences of the Hauptmann trial did crystallize public opinion, and the effect of the public opinion so crystallized is manifest in some of the enlightening occurrences that have followed. The trouble is that public interest soon wanes and public opinion is, too often, not a sustained force
Fourth, civic codes or rules have their value. A code of rules such as were incorporated in the Hauptmann report and published by the Executive Committee of the American Bar Association, the code of rules adopted by the joint conference of the American Bar Association, the American Newspaper Publishers" Association, and the American Society of Newspaper Editors, the Canon of Ethics of the American Bar Association, and the State and Local Bar Associations, have some salutary effect. The weakness is that there is no coercive authority back of any such set of rules. However, their adoption is persuasive and contributes to he formation of public opinion.
Fifth: The broad question of trial control involves lawyers, editors, publishers, broadcasters, telegraphers and all distribution of news. Cooperation is important. Experience has demonstrated the difficulty of securing agreement of these groups upon a common program. If delegates agree, the rank and file may not follow. Negotiations between the various groups are useful but not to be depended on too much
Sixth: In the last analysis the heavy burden must fall upon the court. The court, with cooperation on the part of the Bar, the editors, the publishers and the broadcasters and the law enforcement authorities, prosecutors and peace officers, can easily control the situation. In fact, the court alone can do so. It has the power and it owes the duty to do everything necessary to secure a fair and orderly trial; its power commands obedience and respect, greater than that accorded any other official body of men.
My own notion is that results similar to those obtained in the few jurisdictions cited here as example may be generally, if not universally, obtained by similar official and judicial attitude. My experience in dealing with "The Press" has been that the standards of professional honor of newsmen are very high, and that we may with confidence look for their fair cooperation with established authority.
I quite agree with Mr. Lippman as to the power and the responsibility of the courts and as to the responsibility of the Press. If the "reputable press," of which he speaks, will measure up to the standard he has marked out, I have no doubt that the courts will cooperate with the "reputable press."
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