CRS-35 The key to this jury practice-both voir dire and polling the jury--is that it is a continuing process, not a singular act or motion. Initially a choice of prospective jurors and alternatives is made, subject to challenge of the array and individually for cause and peremptorially, but this has limited final effects. With up to six alternates, it is possible for the judge to dismiss a juror who has become biased by publicity and seat an alternate at any time before the jury retires to de70/ liberate its verdict and the alternates are dismissed. At any point during the trial in which the jury's impartiality is thus impugned, remedial steps may be taken without restarting the entire process. Another alternative which specifically insulates the trial process from publicity caused by the trial is sequestration. Sequestering of the jury is usually the result of a defense motion, but the decision to sequester or allow separation is a matter of the court's discretion. Defense opposition to sequestration, however, cannot be construed as a 72/ waiver of the prejudicial publicity issue. 71/ Nonetheless, if a viable allegation of bias is made and based on publicity concurrent with the 73/ trial, a sequestered jury should be polled. Sequestration is limited, 70/ United States v. Pappas, 445 F.2d 1194 (3rd Cir., 1971). See United States v. Floyd, 496 F.2d 982 (2d Cir., 1974), 404 U.S. 984 (1974). cert. denied, 419 U.S. 1069 (1974); United States v. Hankish, supra, note 69. 71/ United States v. Hall, 536 F.2d 313 (8th Cir., 1976), United States v. Hill, 496 F.2d 201 (5th Cir., 1974). 72/ United States v. Palermo, 410 F.2d 468 (7th Cir., 1969). 73/ See, e.g. United States v. Budzanoski, supra, note 62. CRS-36 however, to instances where an impartial jury can be seated, but publicity of the trial will be pervasive because of the high cost and great incon venience involved. 5. Restrictive Orders 741 The fifth alternative is the issuance of restrictive orders. The burden which must be carried in order to restrict the press directly is heavy and will only rarely, if ever, be borne as has already been mentioned. In Nebraska Press Association v. Stuart the standard applied was Judge Hand's test whether, "the gravity of the 'evil,' discounted by its improbability, justified such invasion of free speech as is necessary to avoid 75/ the danger.' In the same vein, use of the contempt citation to punish publication of prejudicial material is extremely limited and must follow 76/ a valid restrictive order. Direct restraints of the publication are of little validity in most cases--and probably of little use in an egregious case such as Oswald's would have been. Indirect restrictions on the development of prejudicial publicity provide another type of alternative. In Sheppard v. Maxwell the Court first hinted that procedural limitations could be imposed to minimize 77/ prejudicial publicity, and in Stuart the Court specifically reserved 74/ Nebraska Press Association v. Stuart, supra, note 34; Near v. Minnesota, supra, note 6; New York Times Co. v. United States, supra, note 34. 75/ 427 U.S. at 539, quoting United States v. Dennis, 183 F.2d 201, 212 (2nd Cir., 1950), aff'd 341 U.S. 494 (1951). 76/ Bridges v. California, supra, note 8; Craig v. Harney, 331 U.S. 367 (1947). 77/ 384 U.S. at 363, as quoted, supra, at page 22-23. CRS-37 these questions and reached only to the direct restraints for its results. There has been no direct Supreme Court handling restrictions on prosecuting and defense counsel, court personnel, law enforcement personnel and the accused, nor do the Federal Rules touch on the subject. This alternative may be subdivided into three parts: (1) restrictive orders to the parties and their subordinates, (2) supervisory control of court personnel and facilities and (3) enforcement of its orders. d. Silence orders "Silence Orders" are a relatively new concept; documentation on the concept before Sheppard has not been found, and, hence, such an order would not be expected in the Oswald trial. The concept of entering an order restricting what counsel for the government and defense, the accused and law enforcement officials may say about a pending case, is first applicable at the accused's first appearance despite whatever prejudicial publicity is attendant to the investigation 79/ and arrest of the accused. In United States v. Tijerina, a panel of the Tenth Circuit affirmed the defendant's conviction for criminal contempt for publicly commenting on his case in violation of a court order prohibiting such comments on the basis of protecting the right to a fair 80/ trial. "The theory of the defense seems to be that because the order 78/ 78/ Nebraska Press Association v. Stuart, 427 U.S. at 564, n. 8. 19/ More difficult questions will arise with regard to rules of the court which may or may not, take effect prior to arraignments. See, Haldeman, v. United States, supra, note 53, at 80/ 412 F.2d 661 (1969), cert. denied 396 U.S. 867, 396 U.S. 990 (1970). CRS-38 was entered for [the defendants'] protection, they cannot be charged with 81/ a violation." This argument was countered with the assertion that the public interest also requires a fair trial and "the concept of a fair 82/ trial applies both to the prosecution and the defense." While it is true that most pre-trial publicity is adverse to the defense, and that the defense can rarely gain from exploiting the media, the court nontheless took the mandate of Sheppard seriously in making its orders cut both ways. To the contrary, a panel of the Seventh Circuit has held such an order to fail on First Amendment grounds and the insufficiency 83/ of findings. Considerations of a sufficient record aside, there is a dispute over the appropriate test to be applied: whether "reasonable 84/ likelihood" or a "serious and eminent threat" and a "clear and present 85/ danger" must be met. Discipline of an attorney is often controlled by the principles of professional responsibility rather than criminal law. Yet a blanket or categorical rule against comment on all pending cases--criminal and 86/ civil--is constitutionally infirm. Rules often pose significantly greater problems than individual orders because it is necessary to anticipate the facts rather than restate them. Chicago Council of Lawyers 81/Id. at 666. 82/ Id. 83/ Chase v. Robson, 435 F.2d 1059 (7th Cir., 1970). 84/ Held sufficient in Tijerina, supra, note 80, at 666. 85/ Held necessary in Chase, supra, note 83, at 1061. 86/ In Re Oliver, 452 F.2d 111 (7th Cir., 1975), cert. denied, 427 U.S. 912 (1976). CRS-39 v. Bauer presents that very issue as applied to a Federal District Court's 87/ local rules. The rule in question was "substantially the same" as the American Bar Association Code of Professional Responsibility Disciplinary Rule 7-107(A) – (E), except for an introductory clause in the courts rules requiring lawyers to make no comments "that would have a 'reasonable likelihood" 88/ of interference with a fair trial or prejudice." Additionally, the court analyzed the individual sections of the rule, and in so doing, has provided significant illustrations of problems involved in both rules and orders 87/ 522 F.2d 242 (7th Cir., 1975), cert. denied, 427 U.S. 912 (1976). 88/ Id at 252, n. 9. Disciplinary Rule 7-107(A)-(E) provides as fol lows: DR 7-107 Trial Publicity. (A) (B) A lawyer participating in or associated with the investigation of a (1) Information contained in a public record. (3) The general scope of the investigation including a description of A lawyer or law firm associated with the prosecution or defense of a (1) The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the accused. (2) The possibility of a plea of guilty to the offense charged or to a lesser offense. (3) The existence or contents of any confession, admission, or statements given by the accused or his refusal or failure to make a statement. |