# Appendix — McCrea v. Sperry > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1593%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1971 - **Citation:** 404 U.S. 939 ## Text in veg ttn PER PURER AO TSE: hs EDGE 8 as 2 RR APPENDIX A ae OPINION OF THE COURT BELOW AND CONCURRING - * OPINIONS a ~ > The State of vashington, on. the Relation of the Suaerine Court of Snohomish County, Respondent, v. Sam Sperry et al. Appellants. on Appeal from a judgment of the Superior Court for Snohomish County, No. 105342, Thomas G. McCrea, J., entered November 6,. i970. Reversed. , , eee - Contempt proceedings. Defendants appeal from a juggment of contempt. Davis, Bidet, Todd, Riese & Jones, Charles H. Todd, and Duncan A. Bayne, for appellants.’ ioe EB. Schillberg, Prosecuting Attorney, David G. “Metcalf and Bruce A. Keithly, Deputies, for respondent. | 3 re McGovern, J.—“[F ]ree speech iad fair trials a are two of the most cherished policies of our civilization, and it would be a trying task to choose between them.” Justice Black, Bridges v. California, 314 U.S. 252; 260, 86 L. Ed. 192,62 S. Ct. 190, 159 A.L.R. 1346 (1941). Because the trial court here impr operly madé a choice between the two rights, we re- verse the convictions for oe of court entered against the appellants. In the fall of 1970, two young men charged with the crime . _ of first-degree murder were about to be. tried by jury in the | Snohomish County Superior Court. Comprehensive press coverage of the proceeding was anticipated because of the facts surrounding the alleged - murder. -The Honorable Thomas G. McCrea was to preside as the trial judge. The defendants, the prosecuting attorney and the court agreed - that the jury need not be sequestered during the ‘trial.’ As a cautionary measure, and in dedication to his responsibili- ties to provide the defendants a jury trial free from ‘outside prejudicial influences, the distinguished trial judge entered an order on October 8, 1970, which provided, among other things, that: _ : 2. No Court proceedings shall be reported upon or dis- seminated to the public by any form of news media, ‘including, but not limited to newspaper, magazine, radio and television coverage, except those proceedings occur- ring in open Court in the presence of the Judge, jury, ‘court reporter, defendants and counsel for all parties. No - report shall be made by such news media in any event of matters or testimony ruled inadmissible or stricken by the trial judge at the time * the offer of. the matter - “testimony. . October 26, 1970, the jury trial commenced and appellant -.mewSpaper reporters were among the numerous news media representatives in daily attendance at the trial. Octo- ber 28, 1970, the admissibility of certain evidence became *RCW 10.49.110 provides: “Juries in. criminal cases shall not be allowed to separate, except by consent of the. defendant and the prosecuting attorney, but shall be kept together, without meat or drink, unless otherwise ordered by the court, to be furnished at the expense of the county~” | App. 2. an iss#eAat the trial and a hearing was held in open court el in he absence of the jury to decide its admissibility. Some of the offered testimony was deemed to. be inadmissi- ble by the court and the state -was ordered not to present that part of the testimony to the jury. October 29, 1970, the following: article, prepared by the appellants, appeared in two editions of The Seattle Times, a daily newspaper of general circulation in many areas of the state, including the Snohomish County area: The Seattle Times Thursday, October 29, 1970 ' DEFENSE Loses Rounp IN _. Everett SLAyInG TRIAL By DEE Norton -and Sam R. Sperry Times Staff Reporters EveRETT—California authorities had probable cause for arresting Thomas E. Bratiry and-Leonard E. Maine in a Jamestown, Calif., hotel, Snohomish County Superior Court Judge Thomas G. McCrea ruled today. __. The judge announced his ruling in the absence of the jury after the morning recess. Priar to the recess, defense . attorneys had attacked the consistency and credibility of testimony given by Lt. Robert Andre, a Tuolumne, County sheriff’s officer. Andre was called as a prosecution . witness. ° Ais Shy : The judge also ruled California authorities conducted a legal search of the hotel rooms Braun and Maine were in at the time of their arrest, August 22, 1967, ae .. Braun, 21, and Maine, 22, are accused of first-degree © murder in the-death of Mrs. Deanna Buse, 21, of Monroe, . in August, 1967. ° | | ae | Andre, who was a lieutenant with .the Tuolumne County Sheriff’s Department in; 1967, was the fourth officer called by David Metcalf, chief assistant criminal deputy prosecutor. © - | . Andre repeated the description of the arrest given ear- lier by Lt. William Endicott of the California Highway Patrol and Constable Hubert Chafin of J amestown. ‘Andre said the defendants were-found sleeping in sép- arate rooms at the Jamestown Hotel the morning of Au- * * gust 22. App.3 ~~») ' Andre and Endicott, using a master. key, opened the doors to the rooms ‘and found both blocked by ssid oo chains from the inside. °° Maine was ordered from his bed, pe Oe to remove the chaiti and to lie face down on the hallw ay floor where he was handcuffed, Andre said., The door. of Braun’s room was forced. open and the youth taken into the hallway and handcuffed, Andre said. Under questioning by Richard Bailey and Samuel Hale, defense attorneys, Andre said search and arrest war rants had not been gbtained, although he had driven ’ past three courts enroute to the hotel. ae ee Hale emphasized in his questioning that Andre had time and information required to obtain warrants. ‘ Under cross-examination by: Hale, Andre outlined how the hotel had been surrounded by officers and its lobby cleared of persons who might be injured. : Numerous .22-caliber bullets were found in the cloth-- . ing of each suspect when their rdoms were searched, Andre said, and a handgun was found wrapped in a car blanket in a plastic carrying case in Braun's room, he said. Andre said he advised the suspects of. their rights as they lay face down on the mane RY floor wer their rooms had been searched. Earlier Chafin t¢stified he found a sedan a ali near the hotel that matched the description of one believed used by two men wanted for questioning in the shooting of a gir] earlier the fame morning. .. Mrs. Howardine Mease, of Gaviota, Calif., testified ear- lier yesterday: that she and her family discovered the: girl sprawled in the middlé of a highway near Jamestown. Stopping to assist her, Mrs. Mease said the girl told her two men had killed her companion, shot her and driven off in a 1967 green Mercury sedan. Officer Lloyd Berry of the highway patrol then testi- fied he was ordered to the scene and broadcast on his radio the information given him by Mrs. Mease.: Mrs. Mease also said the girl told her the seseHants were named “Mike and. John.” Chafin said he heard highway patrol radio bicaitadte and found a grecn 1967 Brig otherwise fiiting the de- scription parked across the street from the hotel. App. 4 Rabe ha Sete Chafin said he watched. the car and radioed for assist- ance from the ‘Tuolumne County Sherift’s Department. About half a dozen oficers surrounded the. hotel when Andre and Endicott entered the building and found “Mike ~ Ford” and “John Ford” registered as gucsts, Chafin said. After receiving and reading a copy of the newspaper » account, the trial court summoned appellants before it, .barred them from further attendance at the murder trial, and ordered them to show cause why they should not be held in contempt of court for violating the court’s October 8, 1970 order. A written order to show cause followed. The ap- pellants immediately petitioned this: court for relicf. We - Stayed that part of the trial court’s ruling barring the ap- pellants from the courtroom, but allowed the hearing: on . the alleged contempt to proceed. Subsequently, the show causé’ hearing was held in open court and appellants’ counsel stipulated to the basic facts leading to the alleged contemptuous publication. November ' 6, 1970, the trial court entered its findings, conclusions and - order adjudging the appellants in contempt.’ This appeal followed. _ , | ., We first dispose of the state’s argument that the appel- lants are precluded from attacking the constitutionality of the October 8, 1970 order because the instant appeal consti- tutes a collateral attack on that order. The state claims. that _ the order should have been attacked directly by appeal, by motion to set aside or by other immediate review. As au- thority for its proposition it cites Walker v. Birmingham, ' 388 U.S. 307, 18 L. Ed. 2d'1210, 87 S..Ct. 1824 (1967). In Walker, a state court held petitioners in contempt of court . for violating an. injunction which had prohibited them from participating.in or encouraging mass parades or processions ‘without first obtaining a city parade permit. Because‘the — petitioners had. not directly challenged the injunction, but instead violated its terms and then appealed from a subse- quent contempt of court conviction, they were not permit- — ted to collaterally attack the constitutionality of the injunc- \ . tive order. \ ger \ App. 5 | | [1] _ The rule of Walker is inapposite here. There the order was not patently invalid, as compared to the order challenged here which is void on its face, as later in this opinion explained. We have held in a number of cases that a void order or decree, as distinguished from one that is merely erroneous, may he attacked ina collateral proceed- ing. State-ex rel. Ewing v. Morris, 120 Wash. 146, 207'P..18 (1922); State v. Lew, 25 Wn.2d 854,:172 P.2d 289 (1946Y. Also see, State ex rel. Sowers v. Olwell, 64 Wn.2d 828, 394 | P.2d 681 (1964). The violation of an order patently in ex- cess of the jurisdiction of the issuing court cannot produce * a valid judgment. of contempt. In re Berry, 68 Cal. 2d 137, 65 Cal. Rptr. 273, 436 P.2d.273 (1968). : Thecollateral bar” rule which the state ctittends to be . enunciated in. Walker. hasxjustifiably been subjected to much legal criticism, particularly as it applies to free speech cases. Frequently an injunction issues immediately before the planned activity is to occur and there is then no time available to the enjoined party to make a direct attack upon the injunction. The practical result then is that the enjoined party has no adequate remedy at law and cannot engage in a lawful activity because of an unconstitutional order. To us “It. . . . seems unlikely that allowing col- lateral attack would significantly reduce citizen compliance - with lawful decrees; the citizen still faces.a substantial risk of ‘criminal penalties if proved wrong in collateral, rather than direct, attack on the decree’s, validity.” Defiance of Unlawful Authority, 83 Harv, L. Rev. 626, 635 (1970). ° _ Additionally, it is likely that we would have declined to review the October 8, 1970 order by direct appeal or re- view. The issue which we would have been asked to con- sider would have been purely academic. At: that time there would have been no assurance that the parties and the — ‘court would at the time of commencement of trial continue : to agrec on a jury separation. There would have. been no indication that a hearing would be held in the absence | of the jury or, if held, that the court would declare any ~of the offered testimony inadmissible. There would have ee —— ‘ App. 6 3. | x \ , / BR eae saree seat ‘been no showing that the appellants had an intention to. violate the’ order. See Grays Harbor Paper Co. v. Grays | Harbor County, 74 Wn.2d 70, 442° P.2d 967 (1968). yi Appellants’ principal assignment, of error concerns the/ - question of whether a newspaper may constitut onally bel proscribed in advance from reporting to ‘the public, those events which occur during an open and public court pro- ceeding. Limiting our opinion to the facts at hand, we hold _thatitmay not. + | anes nee _~ Our decision here today is premised first on Const. art,_1, ~ $10, which provides: ict Ser as A ADMINISTRATION OF JUSTICE. Justice in all cases shall be administered openly, and without unnecessary delay. This constitutional provision which appears in only nine state constitutions? mandated an open hearing in the first- degree murder trial of the two young men. In so doing, it ‘put into immediate effect the provisions of Const. art. 1, § 5: . te ee ae : FREEDOM OF Sprecn. Every person may freely speak, write and publish on all subjects, being responsible for the abuse.of that right. i and the first amendment to the United States Constitution: FREEDOM OF RELIGION, OF SPEECH, AND OF THE: PRESS. Congress shall make no law -, +. . abridging the free- dom of speech, or of the press . is nue In a long line of cases it has been held that an injunction _which constitutes a prior restraint on speech violates the principles of the first amendment to the United States Con- Stitution. Those principles are applicable to the States ‘by virtue of the Fourteenth Amendment. Schneider v: Irving-" ton, 308 U.S. 147,°84 L.. Ed. 159, 60 S. Ct. 146 (1939); - Murdock v. Pennsylvania, 319 U.S. 105, 87 L.:Ed. 1292, 63 S. Ct. 870, 891, 146 A.L.R. 81 (1943); Adams v: Hinkle, 51 *The-other eight are: Ariz. Const. art. 2, § 11 (1912); Cal. Const. art. 1,,§ 13 (1879); Idaho Const. art 1, § 18 (1889); Kan.: Const. Bill of Rights, § 18 (1859); Mont. Const. art. 3, § 6 (1889); Neb. Const. art, 1, §-13 (1875); Ore. Const. art 1, § 10, (1857); S.D. Const. art. 6, § 29 App. 7 Wn.2d 763, 322 P.2d 844 (1958): Fine Arts Guild, Inc. v. Seattle, 74 Wn.2d 503, 445 P.2d 602. (1968). {2] The trial court’s order of October: 8, 1970 was ob-, “viously and admittedly. in limitation of-the appellants’ lib- erty to write and publish an account of those things which occurred in open court. That order therefore comes to us with a presumption of constitutional invalidity. lf it is to be- sustained, the necessity for the limitation must be -sup- ported by a different constitutional right which requires the limitation. The state argues that such is the case, for the trial court’s order rests fundamentally upon the four- _ teenth amendment to the United States Constitution, the due process clause. It contends that because the jury was allowed to separate, the order was necessary to prevent prejudicial matter from reaching members of the jury while they were outside the courtroom. [3] We point out that it was not necessary to allow the jury to.separate. RCW 10.49.110 provides that the court | may not allow the jury to separate in a criminal case with- out the consent of. the defendant and the prosecuting attor- ney. Under that statute the parties to a criminal case can- net create the right to a jury separation. By refusing to consent, the parties prohibit separation; by consenting, they” permit the court to grant.a separation. The ultimate deci- - sion following the consent of the parties to a jury separa- tion still rests with the trial court. The fact that the parties -~here consented to a jury —- did not therefore neces- sitate a separation. We also note that the trial court: issued an appropriate instruction to the jury at the time it was empaneled to hear the criminal trial. It was: — The instructions I am about to give you are ‘applicable until you have been discharged as jurors in this’ case. Compliance with these rules. duri ing the first phase of the trial will be: difficult because of your exposure to your family and others. By consenting to your separation, the . defendants: and the prosecuting attorney are entrusting: to you a great responsibility. The law requires that you merit the trust they have press inyou. . ‘App. 8 — ac . Do not discuss this case or any criminal case or any - criminal matter among’ yourselves or with anyone else. Do not permit anyone fo discuss such subjects with you or in your. presenee. The violation ofthis order may involve a personal penalty to 4you and may result in a mistrial which would cause gr®At injury to the parties in: this case. sie : . Do not read, view. or4fSten to.any report in a newspa- per, radio or television on the subject of this trial or any other criminal trial: Do not permit anyone’ to read or comment on this trial or any criminal trial to you or in . your presence. During“the course of this trial, do not read, view or listen to any report in,a newspaper, radio or television on the subject of crime or sentences which result from a criminal conviction. Similarly, do not engage in any con- - versation with anyone with regard to such subjects and do not permit such a conversation to be carried on in your - presence. as : oo If you are asked about the case, you should advise-the person making inquiry -that you are under the court’s instruction not to discuss it. When the trial is over you” will be released from this instruction and you will then - ‘ ‘be free to discuss the case and your experience as juror. We believe it appropriate to assume that the jury awould . “obey that instruction. Ketchem v. Wood, 73 Wn.2d 335, 438 P.2d 596 (1968). If it did not and prejudicial matter ‘reached and affected a member of the jury, the proper _ remedy would be a new trial. © . [4]. The judiciary ‘cannot “under ‘circumstances _ like _those before us, suppress, edit, or censor from the public ‘those events which occur in open court “proceedings. The. principle is clear: under. ordinary circumstances “A trial is a public event. . ... Those who’see and hear what transpire[s] can report it with impunity.” Craig v. Har- . ney, 331 U.S. 367, 374, 91 L. Ed. 1546, 67 S. Ct. 1249 (1947). _.And “reporters 6f all media, including television are plainly free to report whatever occurs in open court through their respective media.” Estes v. Texas, 381 US. ae 532, 541, 14 L. Ed. 2d 543, 85 S. Ct. 1628 (1965). # : App. | 9 For -the reasons. stated, we ¢onclude that the trial -court’s order of October 8, 1970, was void and -it eannot therefore support the contempt convictioris- of appellants _ who violated the order. The trial court’s earnest effort to * ‘secure and maintain a fair and inipartial, jury for the de- fendants about to be tried’ for a criminal offense resulted in a deprivation.of the appellants’ constitutional right to report to the public what happened in the open trial. If restraints: upon the exercise of First Amendment rights are neces- sary to preserve the integrity ‘of the judicial process, then. those restraints must be narrowly drawn. The limitations imposed cannot be greater than is necessary to, accomplish the desired constitutional purpose. Dorfman: v. Meiszner, 430 F.2d 558 (7th Cir. 1970). That is not what occurred © here. To sustain this judgment of contempt, would be tosay that the mere. possibility of prejudicial -matter reaching: a juror outside the courtroom is more important in the eyes of the law than’is a constitutionally guaranteed freedom of . expression. This we cannot say. The judgment of contempt is. vacated and held for naught. HAMILTON, i ROSELLINI, Hate, NEILL, STAFFORD, and - WRIGHT, JJ. , concur. ROSELLINI, Zz. pacing agree with the majority that the appellants have the right to challenge the validity of the order entered in the cr iminal ease by appealing from. a contempt citation issued a st them. I do not think it is —— however, to betabor a distinction between this ‘case and Walker v. Birmingham, 388 U.S. 307, 18 L. Ed. 2d 1210, 87 S. Ct. 1824 (1967). The petitioners in ‘that action - were named as defendants-in an injunction action and the injunction was served upon some, if not all, of them. They, at least, were parties to-the injunction action and could have’ taken. an appeal from. the order issuing the injunction. ’ The appellants. here were ‘not paras: to the criminal action in which the order prohibiting certain ts ib. of eer ee ae App 10. NAN AGA MAE MRED: ELAN <0 NG BS Ne eB As A nl NS _— ——— — the facts was entered. They had no standing to appeal from i that order when it was entered. Rule on Appeal I-14, RCW _ vol. 0. Sheets v. Benevolent & Protective Order of Keglers,- 34 Wn.2d 851, 210 P.2d 690 (1949). In that case, we said that one not a party to an action cannot appeal from a judgment, order, or decree entered therein. oaus For this reason, I am of the opinion that Walker v. Bir- mingham, supra, has no application here. There was no order from which the appellants could appeal until the contempt citation was entéred. This Being their first oppor- ‘tunity to raise the question, they certainly have the right to challenge the validity of the order upon which the con- tempt citation was based. | It would be an anomaly: indeed if the law, while de- - creeing that a reporter may report with impunity false- hoods about a public official or public figure (New York Times Co. v. Sullivan, 376.U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964); Curtis Publishing Co. v. Butts, 388 © _ US. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975. (1967); Tilton _ v, Cowles Publishing Co.,.76 Wn.2d 707, 459 P.2d 8 (1969) ), decreed at the same time that he could not print the truth about judicial proceedings. A rule allowing a court to sup- _ press publication of the facts about those matters which occur before it, even though the rule were to be used only for supposedly “legitimate” purposes and never to-conceal improper acts of the court itself, would hardly be calcu- lated to inspire in the public that respect for the judicial _ system which “law and order” require. The very notion of such a power in the court is utterly incornpatible with the principle of equal justice, openly administered, which is | . fundamental to the health of a democratic society. FINLEY,.J . (concurring specially in the result)—The facts as stated in the majority opinion are quite acceptable. However, I cannot agree with certain aspects of the reason- ing. Ido reach the same result by a different route. I think something needs to be said about this different route, and more needs to be said about this case than has been set out in the majority opinion. | , The majority opinion commences with the quotation that “free speech and fair trials are two of the most cherished policies of our civilization, and it would be a trying task to choose between them.” Bridges v. California, 314 U.S. 252, 86 L. Ed. 192, 62 S. Ct. 190, 159 A.L.R. 1346 (1941). The quotation is an appealing ane, and by that eminent exposi- tor of free specch Mr. Justice Black; but it seems to me the quotation is somewhat misleading and not analytically rele vant in a strict sense to the problem involved and its dispo- sition in the instant case. I can certainly agree that it would be a trying task to choose between the constitutional con- cepts of free press and fair trial; but recognition and state- ment of the difficulties inherent in such a process do not assist, and certainly do not resolve, the juristic problem involved when there is actual conflict between the two constitutional concepts. In other words, it would be nice to say that the problem jis a most difficult one and leave it at that, as Justice Black’s quoted statement seems to do. But we can indulge in no such philosophical luxury. We are faced with—we must evaluate and resolve—+an actual con- flict between the constitutional concepts of free press and fair trial posed by. the prohibitory order of the trial judge and publication of the article by The Seattle Times contrary to the order. Thus, it should be rather obvious that this is not a sim- ple, run-of-the-mill case involving a single issue ‘as to the interpretation of specific state or federal constitutional lan- guage—involving in isolation only one: constitutional con- cept. Also, it is an oversimplification to say that the exer- cise of freedom of the-press by the news media is in fact, or is in effect, absolute once a trial-has begun, and events occurring ‘in public and in open couri are involved. It is, likewise, I think, oversimplification to assume that the arti- cle published by The Seattle Times could not under any circumstances prejudice the rights of the defendants to a fair trial. I have in mind particularly that portion of the article focusing upon testimony and evideiice of the witness App. 12. Mrs. Howardine Mease* -recountitig the commission of crimes of violence in California ostensibly by the two de-. fendants on trial in Snohomish County. Such evidence was offered and excluded by the trial judge at a hearing in the absence of the jury. The article focused upon, reported and described this inadmissible evidence.. Several questions arise. First, did the order of the trial ' judge prohibiting the news media from reporting the ‘inad- _ missible and excluded evidence constitute censorship or a prior restraint and an improper judicial effort to restrict the constitutional right of freedom of the press? Second, - did the newspaper article reporting and describing evi- - dence ruled inadmissible and excluded in the absence of the jury constitute a “clear and present danger” to the administration of jusfice involving prejudice to the rights of the defendants to a fair trial? Third, did the publication of the article “have a tendency” to disrupt and frustrate the administration of justice, particularly in relation to the rights of the defendants then on trial? Lastly, was the ‘contempt proceeding premature in the absence of reasona- . bly convincing proof that a juror or jurors had seen, had read; and had understood the significance of, and had been influenced by, that portion of the article reporting and de- scribing the excluded evidence of previous crimes of vio- lence committed allegedly by the defendants in the state of California. - The fact. pattern of the instant case and the above ques- tions present rather new and unique juristic problems; _as *The article in the October 29 issue of The Seattle Times reported: Mrs. Howardine’ Mease, of Gaviota, Calif., testified earlier yester- _day that she and her family discovered the = sprawled in the middle of-a highw ay near Jamestown. ; Stopping to assist her; Mrs. Mease said the girl told her two’ men had killed ku comnraaion, shot’ her and driven off in- a 1967 green Mercury dedan. Officer Lloyd Berry of the highway patrol then testified he was ordered to the scene and broadcast on ss radio the information given hirn by Mrs. Mease. e Mrs. Mease also said the girl told her the assailants were named “Mike and John.” ees Aa The Seattle Timc., Oct. 29,1970, at C4. : ; App. 13 CUE EISEN MO Pe Pap sive SSAA “ - ‘ 6 F there are no clear-cut, well-established controlling prece- . dents where the Jegal issues are identical, and the facts are _also. identical, or so closely comparable, to be indistin- guishable. However, considerable help, I think, may be gleaned from deslalans of.the United States Supreme Court ee . -in-the cases of Estes v. Texas, 381 U.S. 532, 14.L. Ed. 2d.545,~ 85 S.Ct. 1628 (1965); Sheppard v. Maxwell, 384 U.S. 333, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966); Bridges v. Califore nia, 314 U.S. 252, 86 L. Ed. 192, 62 S. Ct. 190 (1941) ;-and Pennekamp v. Florida, 328 U.S. 331, 90 L. Ed. 1295, 66 S. Ct. 1029 (1946); and from the reasoning. of Justice Traynor in People v. Lambright, 61 Cal. 2d 482, 393 P.2d 409, 39 Cal. Rptr. 209 (1964). In this connection, I ‘cannot -rule out consideration of the reasoning of Justice Frankfurter; dis- senting in Bridges, and concurring in Pennekamp. Even so, most careful and meticulous analysis of these cases must be made, if not'as to the specific rulings and the facts in those cases, then to ascertain some guiding statements, principles, or perhaps even dicta of a B ihaalc pertinent and per- suasive character. . ; ‘There has been both underreaction. and overreaction in the interpretation of the decision of the court in Estes and. ‘Sheppard. This has been to the effect either fa) that there has: been absolutely no change in the law as to the scope — _and amplitude of the right of free press or conversely -(b) that the decisions have effected sweeping changes in this respect. There is no doubt whatsoever in my mind that, reduced to bare essentials. Estes and Sheppard stand for the proposition ‘that massive news coverage, overreporting of pretrial and trial proceedings, gives rise:to a legal pre- sumption of prejudice regarding the right of criminal.de- fendants to a fair trial. by an impartial jury. Furthermore, a quick comparison with the decision of the New Jersey Su- preme Court in the celebrated Hauptmann case (State v. Hauptmann, 115 N.J.L. 412, 180 A. 809° (1935) ,-cert. denied, 296 U.S. 649, 80 L. Ed. 461, 56 S. Ct. 310 (1935), petition for writ of habeas corpus denied, 297 U.S. 693, 80 L. Ed. 985, 56 -S. Ct. 385 (1936)), seems to me to demonstrate quite | App. 14 — clearly that significant change has been wrought in the law bythe United States Supreme Court in the Estes and Shep- pard decisions. It should be remembered in this connection that the Hauptmann case was decided more than 35 years ago. At that time the Supreme Court of New Jersey empha- sized the scope and amplitude of freedom of the press, Saying: - ary That such outbursts shoiild occur is not unusual at the trial of a case of great public interest, and in a crowded court room. re Without doubt there were messengers going to and fro. | Again, it was inevitable. The press and-publie were enti- ° tled to reports of the daily happenings, and it was quit, proper for the trial judge to afford reasonable facilities for sending such reports. _ :.+ + If the result of an important. murder trial is to be nullified by newspaper stories and radio broadcasts, ° few convictions would stand. In State v. Overton, 83 N.J.L.287,-.:. . -wesaid... ; o# .:. While it may be that in cases of public excitement the possible effect of newspaper articles upon: the jury may justify . the court in its discretion in. adjourning a trial and sum- moning another ‘jury, it has never in this state been a: ground of challenge to a juror that he had read newspa- ‘ per reports relating to the-case, so long as he.declares his ability to consider the case on the evidence.” (Italics mine.) State v. Hauptmann, 115 N.J.L. 412, 443, 180 A. 809, 827-28 (1935). me ___ In reading and analyzing the Sheppard case, it must be kept in mind that after determining that prejudice to the rights of the defendant was conclusively presumed, the court commented on several alternatives, controls, or rem- - edies in regard to invasion, and prejudice, or protection of the rights of criminal defendants. Among the methods or remedies suggested as available to trial courts, the court suggestcd change of venue, carefully worded instructions to the jury to disregard prejudicial material not presented to them. in court as evidence, and, in the final analysis, the App. 15 ° ee ° 74 ae .court granted a new trial to the deferidants. Jn referring to the granting of the new trial, the court described this remedy as merely a =. The opinion in’ is catia ‘States: If publicity during the procecdings Hacaene the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the preju- dice at.its inception. The courts must. take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor: nforcement officers coming under the jurisdiction 6f e‘court should be permitted to frustrate its function. . Callsber ation between counsel and the press-as to infor- mation affecting the fairness: of a criminal trial is -not only subject to regulation, but is highly censurable and worthy of disciplinary measures. (Italics mine.) Sheppard, 384 USS., at 363. It seems to me this language of the court, reasonable construed, gives some - leeway to trial judges to take appropriate measures to con- trol and prevent prejudicial influences from affecting the deliberations and the verdict of the jury in a-criminal case. The problem is how to establish and describe such preven- . tive measures without improperly limiting freedom’ of speech and of the press as safeguarded by both state and ~ United States constitutional provisions. y At this point it is appropriate ‘to note decisions of our own court apropos of the subject of prior restraints. In Fine Arts Guild, Inc. v. Seattle, 74 Wn. 2d 503, 512, 445 P.2d | 602 (1968), we noted that: We have, however, in varying contexts, vee the provisions of Const. art. 1, $ 5, and the first amendment to the United States Constitution in pari materia and infer- | entially interchangeable. And, in so doing, we com- mented in Shively v. Garag ige- Employees Local 44, 6 Wn.2d 560, 567, 108 P.2d 354 (1940), that “We are of the opinion the right of freedom of speech is not absolute.” . So far as our research of the opinions of this court be concerned we have never specifically held to the contrary. And, we do not read our decision in Adams: v, Hinkle, ‘51 App. 16 « Wn.2d 763, 322 P.2d 844 (1958), as holding that prior - restraint is prohibited by Const. art. 1, § 9, under any and all circumstances. ' (Footnote omitted. Italics mine. ) Additionally, it is uscful to . restate the comments of Professor Thomas I. Emerson. of the Yale Law School. which appeared in Adams v. Hinkle, “The concept of prior restraint, roughly speaking, deals with official restrictions imiposed upon speech or other punishment, which is a penalty imposed after the com- munication has been made‘as. a punishment for having © made it. Again speaking generally, a system of prior | restraint would prevent communication from occurring at all; a system of Subsequent punishment. allows: the: communication but imposes a penalty after. the event. Of course, the deterrent effect of a later penalty may operate to prevent a communication from ever being made. es “Several features of.the-doctrine should be observed at _ the outset. In the first place, the doctrire deals with limitations of form rather than of substance. The issue is quent. punishment are, nevertheless, forbidden if at- tempted by prior restraint. The major considerations un- derlying the doctrine of prior restraint, therefore, are matters of administration, techniques of enforcement, methods of operation, and their effect upon the basic objectives of the First Amendment.” 20 Law and Con- temporary Problems-648, (Italics mine.) Thus, according to Adams v. Hinkle, supra, -.@ prior restraint effected by an order of ‘the trial judge designed to meet or negate a “clear and present danger”: that extra-legal factors would be prejudicial to, and violate . _the fair trial rights of, a criminal defendant may not neces- Sarily be unconstitutional. . App. n EE EE It may be of some interest to digress momentarily for a _ brief discussion of the Washington Bench-Bar Press Com- . | mittee and its program of voluntary cooperation for com- monsense accommodation of. the principles of free press and fair trial. This pr ogram was launched prior to the decisions in Estes and Sheppard and has been actiyely pursued and developed in the state of Washington for a period of several years by dedicated members of the news media, the bar, the bench, and law enforcement agencies in the state of Washington. Several basic assumptions or convictions un- Sete and constitute the foundations of the bench- bar-press p gram. The first of these has been an abiding: conviction - after the advent of the decisions in Estes and Sheppard that the United States Supreme Court, in those decisions, has changed the law affecting free press and fair trial and the ' interrelationships of thesé twa most significant and basic constitutional concepts. Collateral to this is the assumption that free press_and fair trial can “be antithetical and in direct conflict depending upon specific factual situations, in specific cases having to do, principally, perhaps, with pretrial criminal proceedings, but also, I believe, with other aspects of: the judicial administration of criminal justice. — The factual pattern in the instant case as it relates to The Seattle Times article reporting on the inadmissible and ex- . cluded evidence is'a classic example of conflict or collision between fair trial and free press constitutional concepts. Another basic assumption of the bench- bar-press pro- gram is that responsibility for commonsense accommoda- .tion of free press and fair trial is a joint and several re- sponsibility of the bench, the bar; the news media, and law ' enforcement. In this context, another .most important as- sumption has been that free press and fair trial cannot be regarded as absolutes; otherwise, one or the other in an absolute.sense depreciates limits and is eapable of negativ- _ing or destroying the other. Guidelines and Principles for the Reporting of Criminal Proceedings (carefully devel- oped | by the Bench- Bar-Press. Committee, after full inter- ‘change and discussion among aaa of the bench, App. 18 the bar, the news media and the law enforcement agencies) provide as follows: _ . STATEMENT OF PRINCIPLES OF THE BENCH-BAR-PRESS ; ' OF THE STATE OF WASHINGTON | ° Preamble — . " mass communications) of Washington: . (a) Recognize that freedom of news media is one of the ' fundamental libertics guaranteed by the First Amend- _ ment of the Constitution of the United States and that ‘this basic freedom must be zealously preserved and re- * sponsibly exercised. <- - . - (b) Are obliged to preserve the principle of the pre- _ Sumption of innocence for those accused of a crime until _ there has been a finding of. guilt in an appropriate court ofjustice. / | oo {c) Believe members of an organized society have the right to acquire and impart information about their mu- . tual interests. The right to disseminate information should be exercised with discretion when public disclosures might jeopardize the ends of justice. ° (d) Have the responsibility to support the free flow of information, consistent with the principles of the Consti- . tution and this Preamble. To promote a better understanding between the Bench . and Bar of Washington and the Washington News Media, particularly in their efforts to reconcile the constitutional guarantee of freedom of the press and the right to a fair, impartial trial, the following statement of principles, mu- tually drawn and submitted for voluntary compliance, is recommended to all members of these professions in - Washington. The Bench, Bar and Press (comprising all media of 3 Principles ae | 1, The News Media have the right and responsibility to print the truth. A free and responsible news media en- hances the administration of justice. Members of the Bench and Bar should, within their respective canons of Legal ethics, cooperate with the news media in the re- - porting of the administration of justice. 2. Parties to litigation have the right to have their App. 19 . ratte . Ao 8 wien Newsiguetn “ =—, exeeNE Me - -_ : PD ae ’ ; \ : , ? : 4 - 3 i e-. . a causes tried fairly by an impar tial tribunal. Defendants _ in criminal cases are guaranteed this right by the Consti- tutions of the United States and the various states. 3. No trial should be influenced by the pressure of pub- licity from news media nor from public clamor, and law- yers and journalists share the responsibility to prevent the creation of such pressures. 4. All news media should strive for objectivity ip accuracy. The public has a right to be informed. The cused has a right to be judged in an a ite from-undue prejudice. — 5. The news media recognizes the ieeanniaiiee of the judge to preserve order in the court and to seek the ends of justice by all those means available to him. .6. Decisions about handling the news rest with editors, but in the exercise of news judgments the editor should remember that: (a) An accused person is pr esumed innocent until _ proven guilty. ; (b) Readers and listeners and viewers are poten- tial jurors. (c) No person’ Ss reputation should be injured need- lessly. | 7. The public is entitled to know how justice is being administered. However, no lawyer should exploit any . medium of public information to enhance his side of a poe pending case. It follows that the public prosecutor should avoid taking unfair advantage of -his position as an im- portant source of news; this shall not. be construed to | limit his obligation * to make available information to which the public is entitled. 8: Proper journalistic and legal training should include instruction in the meaning of constitutional rights toa . _ fair trial, freedom of press, and the role of both journalist and lawyer i in guarding these rights. Aportep March 26, 1966, in general. session, by a _ joint committee representing the following groups: Washington State Supreme Court Superior Court Judges’ Association Washington State Magistrates’ Assn. Washington State Bar Association . —— Assn. of ee iffs & Chiefs of ance a aoe a Val eet CNet + ALG EAN TE SSRN GAEL AA NCS SNARE Gicl a __. Washington State Prosecuting Attorneys’ Association , Allicd’Daily Newspapers of Washington . Washington Newspaper Publishers Assn: - Washington State Assn. of Broadcasters The Associated’Press om .United Press-International - School of Communications University of Washington GUIDELINES FOR THE REPORTING OF CRIMINAL PROCEEDINGS ~ The proper administration of justice: is the responsibil- ity of the judiciary, bar, the prosecution, law enforce- ment personnel, news media and the public. None should - _ relinquish its share in that responsibility or attempt to . override or regulate the judgment of the other. None Should condone ‘injustices on the ground that they are _ infrequent. — es en The greatest riews interest is. usually. engendered dur- ing the pretrial stage of a criminal case. It is then that _ the maximum attention is received and the greatest im- . _ pact is made upon the public mind. It is-then that the ~ greatest danger to a fair trial occurs. The bench, the bar ‘and. the news media: must exercise good judgment to balance the-possible release -of prejudicial information with the-real public interest: However; these considera- tions are not necessarily applicable once a jury has been empaneled in a case. It is inherent ‘itt 'the concept of freedom of the press that the news media be free to report what occurs in public proceedings, such as crimi-. nal trials. In the course of the trial it is the responsibility of the bench to take appropriate measures to insure that the deliberations of the. jury are based upon what is ‘ presented to them in court. wee | These guidelines are proposed asa means of balancing the public’s right to be-informed with the accused’s right to a fair trial before an impartial jury... ~* 1. It is appropriate to make public the following infor- '.. ‘mation concerning the defendant: (a) ‘The defendant’s name, age, residence, employ- ment, marital status, and similar background informa- tion. There should be no restraint on biographical -facts other than accuracy, good taste and judgement. (b) The substance or text of the charge, such as A \ is rena, gee complaint, indictment, information or, where appropri- ate, the identity of the complaining party. . | (c) The identity of the investigating and arresting ~ agency and the Jength of the investigation. _ (d) The circumstances immediately surrounding an arrest, including the time and place of arrest, resist- ance, pursuit, possession and. use of weapons; and a descr iption of‘items seized at the time of arrest. . 2. The release of certain types of information by law enforcement personnel, the bench and bar and the publi- cation thereof by n@ws media generally tends to create ‘ dangers of prejudice without serving a significant law enforcement or public interest function. Therefore, all concerned should be aware of the dangers of prejudice i in: making pretrial public disclosures of the following: (a). Opinions about. a defendant's character, his guilt or innocence. oon (b) Admissions, confessions or the contents of a si angen or alibis attributable 1o a defendant. © (c) References to the results of investigative pro- oodaren, such as finger prints, polygraph examinations, . ballistic tests, or laboratory tests. . (d) Statements concerning the cr edibility « or antic- ipated. testimony of prospective witnesses. (e). Opinions concerning evidence or.argument in _the case; whcther or not it is anticipated that such evidence or argument will be used at trial. Exceptions may be in order if information to the public . is essential to the apprehension of a suspect, or where other public interests will be served. 3.’ Prior criminal charges and convictions are matters of public record and are available to the news media through police agencies or court clerks. Law enforcement: agencics should make such information available to the news media after a legitimate inquity. The public disclo- sure of this information by ‘the news media may be highly prejudicial without any significant addition m4 the public’s need to be informed. The-publication = such \ information should be earefully reviewed. . 4. Law enforcement and court personnel. should not , prevent the photographing of defendants when they are- in public places outside the courtroom. They should not . App. 22. a £ sot eee erste tied Oa RAI BRA) 8 ESOL, Maly ORAS encourage pictures or televising nor should they pose the defendant. +: 9. Photographs of a siispect may be released by law enforcement. personnel provided a valid law enforcement function is.served thereby. It is proper to disclose such information as may be neccsSary to erilist public assist- ance in apprehending fugitives from justice. Siich disclo- sure may .include photographs as well as records of prior . arrests and convictions. | 6. The news media are free to report what occurs in the course of the judicial proceeding itself. The bench should utilize available méasures, such as cautionary in- structions, sequestration of the jury and the holding of hearings on evidence after the empaneling of the jury, to insure that the jury’s deliberations are based upon evi- dence presented to them in court. 7. It is improper for members of the bench-bar-news _media or law enforcement agencies to-make available to’ | the public any statement or information for the purpose of influencing the outcome of a criminal trial. ; _ 8. Sensationalism should be avoided by all persons and agencies.connected with the trial or reporting of a crimi- ‘nalcase. — : . (Italics mine.) \ | It comes as somcthing of. a disappointment that both - ‘ the trial judge and The Seattle Times seem to have given less than appropriate attention and emphasis to the spirit and intent of the Statement of Principles and the Guide- ‘lines for the Reporting of Criminal Proceedings developed so carefully and so hopefully by the Washington Bench- Bar-Press Committee. Apparently the trial judge was prin- cipally concerned with the rights of the criminal defend- ants then on trial, and believed that it was essentially or - even solely his responsibility, and within his authority, to Safeguard those rights. Perhaps also, The Seattle Times principally was concerned for the right of free press and’ the newspapers’ responsibilities in this regard to keep the public fully informed about the criminal proceedings then in progress. Neither seem to-have given much thought to’ _ _ the interrelationship of the two rights and possible conflict and, therefore, the need for the exercise of careful, cautious ' App. 23- pains poe ~~ + al he @ — judgment to allow eptimal emphasis‘and realization as to both free press and fair trial. It seems to me that both the trial judge and the newspaper were partly right, both were partly wrong—at least potentially so. On the one hand, the jury was carefu''* arid properly instructed by the trial judge that they w: ‘ consider and render their verdict in accordance only wiih the evidence presented to them in’open court. The fria! judge could and did give: cansideration to sequestration’ of the jury. This _ procedure, as instanced by the decision in Sheppard v-. Maxwell; 384 U.S. 333, 16 L. Ed. 2d-600, 86 S. Ct. 1507 (1966) ; provides reasonably: reliable safeguards So that only mat- ters adduced in open court will be considered by the jury. However, this method, although: hopeful in potential with respect to assuring a fair trial, is not without some serious ‘difficulties. One of these is the extra cost involved in hous- .ing, fecding, and accommodating jurors segregated for the duration of a trial. As to this, perhaps, it can be said that the costs and budgets of ‘government, and ‘the courts, con- . cerning the administration of justice should not be consid-_ ered a serious bar when the desirability Gr necessity exists for sequestration of the jury: in criminal trials of great moment. and public interest. Even so, it must be realized that there are practical problems involving not only county finances and budgeting, but the availability of housing and other accommodations for sequestered jurors in paiticular areas of our state. In addition, there is the most sensitive and complex problem, particularly in a criminal trial which . is expected to Iast weeks or even months, of-selecting ju- rors who are willing tg and, who without serious inconven- ience, can be sequestered and separated from their families, friends, and from business and other commitments - throughout a trial lasting several weeks or months. In‘this connection, there is, in addition, the possibility of a serious — ee = ——y “Under an order of. sequestration, the jury would be ‘ssouiiied room | * and board, and virtually kept in seclusion apart from the parties and public, and from outside or out-of-court contacts and influences for the duration of the trial proceedings. App . 24 , o Ca, ETON LAD Ae kD LT eR fai objection from defense counsel in behalf of his client, the criminal defendant. Such objection takes the form of a. criticism that sequestration has its difficulties and complica- tions and has a tendency, or will actually result in, a jury ’ that is not representative of the community in the truest: sense. In other words, it may be contended that the pros- pect of Sequestration | may have a. tendency, or will‘ not result in, a freely and impartially selected sury and is, therefore, prejudicial to the rights of a defendant to full due process and a fair’ trial. Thus, sequestration of a jury may not be without its problems for a trial] judge. In the instant case, the trial] was apparently expected to _. last 4 or 5, wecks. Perhaps somewhat unfortunately, in terms of effective administration of justice,.a trial lasting 4 or-5 weeks currently does not seem to be unusual, nor inordinate. In any event, through careful pretrial proceed- ings designed to organize-and direct the trial “properly without unnecessary delay, the anticipated length of trial ae the ‘period of sequestration of the jury might well have n lessened and reduced by several days or even a week or so. It is hindsight, and perhaps subject to debate, but in the position of ‘the trial judge—which I was not—the indi- cated doubts or problems would have been resolved in se- questration of the jury. It is safe to say as a matter of judicial notice that reasonably adequate hotel and other accommodations would have*been available in Everett, Washington. es, ; ie This brings me to another point.. Although the trial judge, in discharging what he regarded as his responsibil-. ity, did not sequester the jury, news media people under |. the guidelines of the Bench-Bar-Press Committee and oth-- - erwise were not.relieved’ of their joint and several responsi- bility for commonsense accommodation of problems of free press and fair trial. There was at least some serious poten- tial danger that the inadmissible and excluded evidence would reach the jury by reason of publication of the article in The Seattle Times. It seems to me that.the right of the’ public to be informed and to know-about the trial proceed- App. 25: Cari | BAT LN ee ings was not such a supervening, compulsive, .and absolute right to justify. action potentially seriously prejudicial to. the rights of the criminal defendants then on trial. In nu- merous other instances the news media have time and again exercised most admirable journalistic or editorial judgment and restraint and have refrained from publica- - tion of material having serious potential prejudice to the rights of criminal deferidants. The question has been a con- stantly recurring one and has-to be asked, “Why did this - not happen in the instant case? Was it because of the breadth and scope of the order of the trial judge, and because of his apparent assertion of authority and right, constitutional or otherwise, to restrict, restrain and limit news reporting? Was this what prompted a challenge—and the assertion by The Seattle Times of an absolute right to publish, perhaps irrespective of potential harm and preju- dice to fair trial rights of the criminal defendants?” There is, perhaps, no answer except possibly that the situation ‘just got out of hand on the part of those concerned, or who . Should have been more concerned. And, it is really a case of “too bad,” where the hopes and expectations of the Guide- lines and Principles of the Bench- Bar-Press. Committee simply did not work out. | It seems. beyond: peradventure of doubt and debate that under our system of justice, “fair trial” means, among other things, that a criminal defendant can be. convicted only on the basis of evidence properly admitted. in: open court and properly before the jury for its consideration and | evaluation. If the proffered testimony clearly implicating defendants in murder and attempted murder in California © conceivably had been admitted unqualifiedly by Judge McCrea, this would have been prejudicial to a fair trial and reversible error. If this testimony reached the jury through publication and dissemination of news by the news media, its potentially prejudicial effect. upon fair trial would be no less. In fact, in either event, the potentiality of prejudice, — reversible error, and the granting of a new trial for the defendants would scem.to be about the same. The crucial App. 26 question, of course, is whether the newspaper article. de- scribing the inadmissible evidence actually reached: the jury, was read, then given consideration by the jury, and . Whether it can be said fhis prejudicially affected the jury's consideration of the case ; a - In a somewhat comparable situation, the California Su- _ preme Court in People v. Lambright, 61 Cal! 2d 482, 487, 393 P.2d 409, 412, 39 Cal. Rptr. 209 (1964), in an opinion by Justice Traynor stated: . Since the trial court expressly authorized the jury to read newspaper accounts of the trial, it is reasonably ‘probable that some of the jurors did so and that their | misconduct, even: though innocent, affected the result. ‘Accordingly, the error was prejudicial: (People v. Wat- son, 46 Cal.2d 818, 836 [299 P.2d 243].) : _ (Footnote omitted.) Dre In an interesting, and, I think relevant, footnote, Justice Traynor stated: The fact that a newspaper published an account of testimony that the trial court ruled inadmissible raises serious questions as to the propriety of such reporting. Although the protection of the’ First Amendment. of the United States Constitution may extend in some circum-. stances to press coverage of judicial ‘proceedings, such Tights may be outweighed by the defendant’s right to a fair trial when the latter tight is in clear and present— danger of obstruction by the news media. (See Penne- kamp.v. Florida, 328 U.S. 331, 334-336, [66 S. Ct. 1029, 90 L. Ed. 1295, 1297-1298]; Bridges y. State of California, 314 U.S. 252, 259-263, [62 S: Ct. 190, 86 L. Ed. 192, 201-203}. See generally, Due Wwe 3 Whom—Newspaper or Defendant?, Comment, 4 StaffL.Rev. 101.) The danger was apparent in this case where the‘ trial judge excused the jury from the courtroom to consider certain evidence _ and ruled that the evidence was not for the jury’s consid- ° eration. As stated in People v. Stokes, 103 Cal. 193, 197, [37 P. 207, 42 Am.&t.Rep. 102], “It is exceedingly ,unfor- tunate that a newspaper should publish such.an article. ‘pending the trial of an important criminal case. Newspa- _ per comments of this character are well calculated to interfere with the due and proper administration of jus- tice. The jurors should not have read the article. The App. 27° TT tT OR LAN TSMS NEA OY IBIS EELS Z . too REE REND MARR Sa eR ES, ot _ newspaper should not havid | sobiiahied it. The publication of such articles during the pendency of important trials serves no good purpose, but, on the contrary, tends to impede and adulterate the stream of justice.” (Sce also People v. Gomez, 41 Cal.2d 150, 161 [258 P.2d ae ac ple v: Powell, 171 F.Supp. 202, 205.) (Italics mine.) Lambright, 61 Cal. 2d at 478, n.2. Recently,.in State v. Miles, 73 Wn. 2d 67, a, 436 P.2d: 198 (1968), we stated: _ We conclude that the testimony of the walies officer, concerning an alleged plan to perpetrate a robbery like , ‘the one with the commission of which the defendants . were charged, was so prejudicial in nature that its effect upon the minds of the jurors could not be expected to be erased by an instruction to disregard it. Therefore the defendants were denied a fair trial : The principle seems so well established in the law that °° there should be no question that if the excluded evidence ” reached and was considered by the jury, this presumptively would be prejudicial td the rights of the defendants to a fair and impartial trial. Of course, the significant question remains as to whether the excluded evidence, via the news- : | paper article, improperly reached, was improperly consid-- - ered by, and—it can be said—improperly prejudiced the jury in the instant case. This seems to be sufficient. discus- sion of one horn of our dilemma. ee Now, as to the other focus of our. dilemma, i.e., Ariatian of the press, the question is whether this constitutional concept—and its concomitant ramifications—have a super- sacrosanct status setting it apart and above other bisic constitutional rights including fair trial rights of criminal ~ defendants. Stating this another and perhaps extreme way, this horn of our dilemma is whether the right of free speech and freedom of the press are of-such:moment and | scope that they may be.employed in an absolute sense by the media to prejudice or destroy the right of a criminal _ defendant to a fair and impartial trial. I think the dilemma, © or the basic question, may be the same under some circum- stances, whether related either to.pretrial or to trial pro-. App. 28. Seley Parmer Tne eae Avrole ‘AGP a state 62 S. Ct. 190 (1941), decided by a five to four divided court, Mr. Justice Frankfurter, joined by Chicf Justice Stone and Justices Roberts and Byrnes in dissent, stated, at page 282: | . Free speech is not so absolute or irrational a concep- | tion as to imply paralysis of the means for effective pro- tection of all the freedoms secured by the Bill of Rights. Compare Lincoln’s Message to Congress in Special Ses- .Sion, July 4, 1861, 7 Richardson, Messages and Papers of the Presidents, pp. 3221-3232. In the cases before us, the claims on behalf of freedom of speech and of the press encounter claims on behalf of libertics no less precious. California asserts her right to do what She has done as a' means of safeguarding her system of justice. . Further comments by Justice Frankfurter at page 293 seem _ apropos and worth ‘noting: i. In Bridges v. California, 314 U.S. 252, 86 L. Fa. 192, cratic society. In Pennekamp v. Florida, 328 U.S. 331, 90 L. Ed. 1295, 66 as 1029 (1946), Mr. Justice Reed, writing the majority ‘ opinion for the court,-stated at page 336: : Whether the threat to the impartial and orderly adminis- tration of justice must be a clear and present or a grave and immediate danger,’a real and substantial threat, one which is close and direct or One which disturbs the, court’s Sense of fairness depends upon a choice of words. Under any one of the phrases, reviewing courts. are brought in cases of this type to appraise the comment on a balance between. the desirability of free discussion and the necessity for fair adjudication, free from interruption of its processes. ee a, responsibility of exercising it which are basic to a demo-' (Italics mine.) This statement, in my judgment, aptly de- Scribes the problem on appéal in the instant case, Concurring with the majority in Pennekamp, Mr. Justice : | _ App. 29 Frankfurter emphasized the fact that the provisions of miany state constitutions concerning {freedom of, the press | are coupled with provisiens or specific constitutional lah-: _ guage prescribing responsibility for the exercise of freedom of the press’ and for its abuse. At page 356 in Pennekamp, he stated: : Most State constitutions expressly provide for liability for abuse of the press’s freedom., That there was such legal liability was so taken for granted by the frarners of the First Amendment that it was not spelled out. Respon- sibility for its abuse was imbedded i in the law.* 7 The footnote to this statement reads: *The State constitutions make it. clear that the freedom of speech and press they guarantee is not absolute. All, | with the exception only of Massachusetts, New Hamp- shire, South Carolina, Vermont, and West Virginia, ex- plicitly provide in practically identical language for the right to speak, write and publish freely, every one, how- ever, “being responsible for the abyse of that right. ” 3 (Italics | mine.) It is apt and legallig relevant to note and emphasize that article 1, section 5 of the Washington ‘Con- , stitution provides: ) FREFDOM OF SPEECH. Every person’ may freely speak, write and publish on all. subjects, being responsible for the abuse of that right. (Italics mine.) Alluding to critics of the press. and’ alleged journalistic excesses categorized as “trial by newspaper,” and referring © to proposed legislative restrictions on the press, Justice Frankfurter, concurring in. Pennekamp, at pages “364-65, stated: a 9 They serve also to emphasize that the purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. “. . . the liberty of the press is ng greater and no less than the liberty of every subject of the Queen,” Regina v. Gray, [1900] 2 Q. B. 36, 40, and; in the United States, it is no ‘greater than the liberty of every citizen of the Republic. App. 30 The right to undermine proceedings in court is not a- the fullest sense of responsibility. Without such a lively ~ e The phrase “clear and present danger” is merely a justi- While the indicated tests have been useful and may be apt in some contexts, I agree with the court in Bridges and Pennekamp that the tests are speculative and conjectural any variation of it; or other language indicative. of tend- ency, inference, or possibility constitutes a test or formula App. rg 7 , a too tenuous and unreal for judicial application under the circumstances in the instant case involving sensitive inter- relationships or conflicts between free press and fair trial. In any event, the primary and the crucial question in the instant case was not just susceptible to, or a matter of, speculation. Rather, it could have been reduced to certainty and reality.-That crucial question was simply whether a juror or jurors read, understood, and considered the article _ published in The Seattle Times reporting and describing the __ evidence excluded by the trial judge concerning alleged’ - crimes of violence committed by the defendants in Califor-- nia. On this. question, the jury could have been polled im- mediately after the publication of the article or subse- - quently during the trial. The. polling, at least in my judg- . ment, .coyld have ‘been accomplished at the time by simply inquiring about the frticle without revealing its contents ‘and thereby precipitating prejudice to the due process-fair trial rights of the defendants. Actually, the question. could ‘have been asked whether” the jurors had read an article concerning the trial, published in the particular issues or editions of The Seattle Times. If no juror had read the . article, it seems to me that would have ended the matter as. to any potential prejudice of the: rights of the defendants then on trial, and}a fortiori as to any actual contempt of court. On the other hand, if a juror or jurors had read the . article arid recalled and understood its’significance, this was the time, and would have been a proper basis, for granting a new trial, and possibly. for more realistic—rationally based—contempt proceedings. The record in the instant case does not indicate whether the article was or was not read by a juror‘or jurors. The potential evil involved is, as _ - of now, tenuous and speculative—too much so, in my judg- ment, to support the contempt procéeding against the ap- . pellants, reporters of The Seattle Times. a Additionally, it should be pointed out that the. contempt _ proceeding was predicated upon appellants’ alleged viola- _ tion of the trial court’s October 8 pretrial order. That order . purported to bar news media publication regarding evi-- e App. 32 | ; Fi KN TES EIS SSI Mw 2S Dine ANG St RS IO ATTA dence offered or proceedings occurring in open court out of © the presence of the jury. Appellants’ alleged disregard of _, this order falls initially, or inchoately within the ambit of - RCW 7.20.010, which pr ovides in part: 7 . The following acts or ‘omissions, in respect toa eouct of . justice or- proceedings therein, are deemed to be con- tempts of court: (5) ibobtibae: of any lawful ers decree, order or process of the court. However, it is clear that the trial court’s adjudication that appellants were in contempt is based upon provisions of the order of, October 8, which—if literally and immedi- ately applied: and enforced, rather than retrospectively— would amount to a prior restraint and prepublication cen- . .Sorship. As previously noted, such prior censor ship cannot | be sustained under the provisions of Const. art. 1, § 5. Conse- quently, in this respect, the order of October 8 is unconsti- tutional and void. Thus, the subsequent order adjudicating appellants in contempt cannot be sustained, dnd I concur with the opinion of the majority that the. order must be reversed and, furthermore, . as — a edahiai a! dis- | missed with prejudice. Although the order of October 8 is constitutionally void insofar as it was applied to constitute a prior restraint and _ prepublication censorship, somewhat comparable orders— carefully worked out with all concerned, cautiously worded and meticulously tailored—can serve’ a unique and most - useful purpose. That purpose is notice not only to the news media but to all concerned regarding appropriate ground rules and guidelines, such as those of the Washington -Bench-Bar-Press Committee, to safeguard the administra- tion of justice and to bring about a commonsense accommo- ‘dation. of both free press and fair trial constit utional rights. We would be presented with quite.a different matter had the instant contempt adjudication involved and had’ been based upon allegations concerning post-publication results | - appellants’ actions, 2.e. ——— of the jury verdict , ee 2 on and_post-publication accountability. In other words, al- though prior restraint and prepublication censorship are - verboten finder our state _constitution—post-publication ac- _countability, responsibil’ and liability of the news media is constitutionally supportable. Actions by members of the | news media amounting to potential contamination ‘of a criminal defendant’s right to a fair and impartial trial can- not be proscribed in advance. But, such actions where prov- ably harmful to fair trial constitutional rights may subject the news miedia. to post-publication accaquntability. Such accountability or responsibility is supported by:the wording . —and what seems to me the intent and meaning—of our state constitution. In such instances, accountabilit? may be implemented either under the provisions of RCW 7.20.010 (9), as enacted by the legislature, which provides that any unlawful interference with the process or proceeding of a ‘court shall constitute contempt; or, accountability can be _implemented by the trial court’s exercise: of its inherent powers to provide protection for its proceedings. In short, actions’of the news media resulting in provable | _ harm to a-criminal defendant’s right to a fair and impartial __ trial ‘may subject the news media to post-publication re- _ sponsibility and accountability. It could be argued that under the above-stated principle ~ or standard, any contamination of the jury verdict in the instant case resulting from appellants’ actions presently re- | mains open to proof, and that the proceedings in contempt should not be dismissed with prejudice. However, in light of the uniqueness of the problem and the absence of guid- ing precedenits—clear-cut and well-established—it is my conviction that fundamental and essential principles of fair play dictate that any implementation of the principle of post-fublication accountability, should. be reserved for pro- spective application in future cases. Thus, I reach the con- clusion that appellants herein should not be subject to fur- ther contempt proceedings based upon allegations in regard to post-publication accountability. | As to any future cases of this nature, it seems prudent to emphasize that this court should have no reservations in applying the principle or standard relative to. post-publica- tion accountability. The comments, the discussion, and _ uideljnes indicated h¢rein should provide notice to all con- rned—and avoid any inference or contention: as to sur- ise—that post-publication accountability dictated by our tate constitution wall be the applicable principle or stand- ard in future cases of this nature. In my opinion, the indi- cated standard is both legally and pragmatically sound— which, incidentally, .may be something of a rarity these - days. It’ is my belief the standard indicates or provides, among other things, an appropriate and necessary solution . of the sensitive and delicate provlem, of conflict between the constitutional concepts of: free press and fair trial. — Namely, the suggested solution would be based upon actual © proof of tangiblé) harm rather than upon mere suspicion, speculation, and conjecture. Such a solution avoids the problem of any prior restraint or censorship of the-news media. It also avoids tenuous speculation in any application of the “clear’and present danger” tests or any serantical _ variations thereof. Such a solution is consistent with the principles and objectives of the Washington Bench-Bar- Press Guidelines. Such a solution allows amplitude for the’ exercise. of freedom of the press and the application of — sound editorial, journalisti¢ judgment. Concomitantly, such a solution emphasizes the sensitive and significant responsi- . © bility of the news media in the exercise of freedom of the press in relation to the constitutional concept of fair trial. While eliminating the possibility of prior restraints ‘end censorship, such a solution is consistent with the: language of our state ‘constitution and that of other state constitu- _ tions that freedom of speech and of the press may be exer- cised but with those concerned “being responsible for the abuse of that right.” ,. hs HUunTER and Wrichtr, JJ., concur with FINLEY, J. App. 35 ~ | . % | ; ; | } 7 i 4 : oo | 7 * 4 oo 4 : Se Pen “ee Ta, 7 =e we, age ah a ~ es : —— : " . t : SY RRA ERE DOR PRA R MASTS NIT, CKD SoC | | { | | _ . i ¢ * ‘ m e - 5 o | Is fk SUPREME COURT CF THE SSATL OF WASHINGTON ~ ; THe STATE OF WACUINGION, cn the’) ° } : hose Relation of THE SUPERICR COURT a . OF SNGHOMISH CCUNZY, HCNORADLE .W... i : ©) SHOMAS.G. MeCREA, .. . cgriimnrenbr | . EM. fener : _Responéent, - .$. No. 4.2.7.9 2. ar sie oe Snohomish: County No... 105342 SAM SPERRY. and DEE NORTON, 0 ars ‘, 3 ts kes : ; : Oe eetorett i aa ARERR cecere cee . ‘ a , ; a : ~ 2 ; ° ; . ? . coe co” The State of Weshingion to: The Superior Court of the State‘of Washington = * ' | “in and for........ .. Snohsomish _ _ County ” ; This is to-certify that the opinion of the Supreme Court of the State of Washington filed on / April 19874. became the final judgment of this court in the above entitled / case on... .. June 4 a 19671 . This cause is reinitted to the superior court from which the appeal was taken for furtMer proceedings in accordance with the attached true copy of . 7 . ’ the opinion. Pursuant to Rule 55 on Appeal; costs are taxed as follows: : : Four huncred thirty-eight and.43/100 dollars ($435.43) in favor of 2ppellants and against respondent. The Petition for Renearing was denied by order dated cune 4, .1971. ce: Davis, Wright, Todd, Riese & Jones aes Ne oh eee Mssr. Charles H. Todd and Duncan-A. Bayne hares mea a “Honorable Robert E. Schillberg, ; Prosecuting Attorney - IN TESTIMONY WHEREOS, } have hcicunto Mr. David Metcalf, Deputy ts ; Court Reporter ; E set my — and affixed the weg: of said a: a Court neOimi, this... 7th. day of —~June - ; Bee eeee) ei: eel at) Cae 2 ° es ee "WILLIAM MM. LOWRY wi : ; Clerk of tre Sp cn Court, State of Wemirgton App. 36 : ; [ ? e 8 » ee AD aN . 2 Cs : ~* SOL ; ° ‘ yy he » . be s 4 . ; é ‘ : j é ; = , - . . * . ° « ' : . \ \ . / \ : - » . aetains 7 . . . : * ; : . oe tie e 2 . oe . ' @ | | . 7 ) ors . . s ~ A . . \ 3 : . - " ¥ , ' ) . . 6 ; . : ae | ’ 4 . . va ® | . i | | . 7 = n . . ’ ‘ ; a / . . | . . " : i | | ‘ ] a z f ; : | oe . ; ; fe | . 5 ; | a 2 ; . : : . . 4) . . ° . : g | . ‘ é ° , : . ~ - ‘ . ; . . . i : - , | a . : ‘ ; p . ¥ rs ; | -_ ° — ‘ a . e ; : . f ; ‘ ba - * * ‘ . F . ’ : | . : | | | : . | * . ; . , , . ‘ | +s | i s 2 " ; ! we a \ , . > - i . . é : . - | a . \ | | . : | ) 2 . } roe at meron rE Saves reer ate Tt Sa AONE eH . ‘ \ - — APPENDIX C - IN. THE SUPERIOR COURT OF THE STATE OF WASHINGTON _ IN AND FOR .THE GOUNTY OF SNOHOMISH - » 5 em THE STATE OF WASHINGTON, ) Plaintiff ~ ) ; : ea No. 4121 ., are vs. ) ae ’ 1k: SECOND ORDER RE TRIAL ‘ THOMAS EUGENE. BRAUN and ) PROCEDURE AND. NEWS g LEONARD EUGENE MAINE, MEDIA COVERAGE . / re 3 Se ) : d : ‘ i Defendants : Se | Sr ry Inasmuch as it appears that there is sone pfobabil- " aty that the jurors ony in this’ cause be allowed to hn separate during what we call the"guilt phase of this e . proposed trial, ome. following order will be in effect until the question of separation is determined, and theirs ‘May or may not be continued thereafter, depending upon 4 whether or ‘not the jury is in fact allowed to separate during this phase of the trial. | IT IS HEREBY ORDERED’ /ADJUDGED and DECREED: 6 61> ALL approaches to the Courtrooms on the second Steer of the Courthouse shall be kept clear for the pur- pose of free access thereto by ‘those employed or those who have business to crensect therein. | Zz. Meo Court proceedings shall be reported upon or oe disseminated to the public by any ‘form of news ‘media, including but not limited to newspaper, Magazine, radio App. Pa ‘90 and télevision coverage, . — those proceedings occur- eae in open Court in the presence of the judge, jury, court reporter, defendants and counsel for all parties. “No report shall be made by, such news media in any event of matters or testimony, ruled inadmissible or stricken be the trial judge at the time of the offer of the’ matter - or testimony. . The requifenent that all parties be present shalt. not apply to reports of matters af non-testimonial or non- -evidentiary character, sueh as description of Court- “room setting and the like, and general: descriptions of resehedulings and court procedure. ame limitations on matters t6 be reported previously wited shall not apply. after completion of trial and dismissal of the 2 4Ty. All counsel, hews media, reporters, announcers and judicial personnel, including -the judge, shall. be gov- erned -by the rules and spirit of the Statement of Princi- - ples of the Sench-Sar- Press of the State of Washington : promulgated and dated the 26th day of March, 1966. ee 3. No sketches. or drawings which ney in ‘and of themselves tend to tetinance the voutcome of the trial | shall be made upon the second floor of the Courthouse of any person attending or participating in the trial or | related proceedings. | * 4. Jurors and those persons summoned but excused from serving as jurors are forbidden from making any Appa 38°” . , 6. statements out of: Court of any kind whatsoever concerning this. case from this date ‘and “until such time-as the jury _is discharged; and Vikeies those connected with: news" media and alt the modern forms that news media: take, are “restricted from talking. to jurors until the jury is dis- charged. That includes jurors sworn to try the cause, jurors Summoned but éxcused and all jurors that were drawn for this case. , _ No photographs of any kind of. jurors, as ‘a group or individually, shall be taken at any time or Place with- out prior permission of the Court. The. list of names and annnesene of. the prospective jurors shall not be released or. published. The names of the excused jurors may be published. The names of ‘i selected jurors and alternate selected jurors have. been ‘* - sworn. 5. The official. court reporters who may report these proceedings: are prohibited from selling, giving, ~ furnishing or disseminating any transcript of these pro- ’ ceedings to any person other than counsel for the. defense -and the State until the jurors are selected and sworn to. try the issues herein, and further, until the matter is finally submitted to the purors for their deliberation. 6. Attendance in the _ Courtroom during the trial proceedings shall be limited to seating accommodations of the- Courtroom, and an effort wilt’ be made to set ‘App. 39 4) Ree a aside adequate porties of the seating facilities/for - documented members of the news media. we No one except attorneys. and persons guthorixed. ‘by the Court may handle any exhibits. | 8. ‘No recording devices shall be allowed inside the Courtroom or in the hall of the” Courthouse annex on the second floor of the Snohomish County Rane geenee : : except that dny attorney involved who desires as an aid to him in trying the’ case may bring a recording device ~ ~m / . and may use it for his own purposes. f - 9. - No cameras will be permitted. on the secpnd floor of tbe. Courthouse paint ; _ DONE IN OPEN COURT ‘this 8th day of Octo er, 1970... s/ Thomas G. McCrea c udge reason was that there is actually in this APPENDIX D. ———_—_—_ IN Tik SUPERIOR COURT OF ‘THE _ or WASHING TO IN’ AND FOR ‘THE COUNTY Or SNOKOHI SH ) STATE cx re} THE.-SUPERIOR COURT ) al nia Perse ) OF SNOHOMISH COUNTY, HONORABLE 4f be 3 AS THOMAS G. McCREA, ) Mo... eae Plaintiff, . meted Wet OA nate . : \ ‘DECISION, FINDINGS oF vs ) \. PACT and CONCLUSIONS OF LAW SAM SPERRY and DEE NORTON, ) ioe . * Defendants. -, ) : > * IN PHS MATTER I Shik it is nécessary that there be some preamble incorporated i the findings which, would give the itibvinis- ogy of the basis for the issuance of the order qhich these gentle- RRs ey a a heed eee ee nen are accused of, and in fact as 4, understand} have admitted, violating. get, .” . is me At the ment, it was’ apparent that this ‘trial would take a ~-_- . - an considerable period of time. The parties in the trial, that is” Y ; é the prosecuting attorney and the defendants, agreed Upon a separa- . : tion ofthe jury uring the guilt phase of this trial, but not - i ‘ eur ing* the penalty ghace,: should such phase be reached, This was’ done pursuant to the statute, RCW 10. 49. 110, which only requires consent of the defendant and “the Prosecutor. for such sepatation i) = (and requires thy consent of no other person or body. : gets . | § As to- reasons ‘for the consenting to the Separation, I believe x they a first, the length of trial, ‘as I- deve, Andicated; 3 ae secondly, the difficulty of ‘obtaining a cross section of the com- munity to act as jurors if these jurors knew that mm were going J Ss : : to have to be sequestered for a. lengthy period of time, “Another Ei ke . 5 . ~ “ he Plies elebei eatin Blues otek . RS aC ats SPAR aS A x petiioe 8 REG GES ’ ‘ order had.to be entered to insure ‘ehiat end. alternates for that period of time. Another fact +too which had some influence-of course was the cost to the County. As part of this agreement, there was a 1 question of whether or not the righted. the defendants to have a jury judge their’ case on manheEs which occurred in court in the presence of the. jury only, enna be insured, and it was, apparent that some vee of There was a tentative order drawn up and the local press was called in and invited: to discuss that order with the Court and/or. interested parties. / P oe Subsequently an order was drawn up which is the basis of this matter. “Although I as. judge take full responsibility for ° - that. order, I further state that the order was discussed with the rest of the judges on the bench of Snohomish County. They all ' concurred in it, and believed that it was reasonable and@heces- sary. The order in effect barred publication of any matters. which did not or wire not given in the presence of. the jury. We are 2* once met with a number of Constitutional provisions, some gUaics..ccing freedom of the press, others guaranteéing fair trial and the right to confront witnesses against you, and it becomes a’ problem of ‘aay court to weigh those various provisions in the Constitution im the individual case. Nor are*the guidelines for.the reporting of criminal proceed- ings adopted by the’ Bench-Bar-Press in 1966 of any particular’ help. In fact, they are in themselves somewhat conflicting... The document contains the following words:, -In the course of the trial it is the responsibility. of the bench ‘to take approptiate Measures to insure that tthe deliberations of the jury are based upon what is pre- sented to them in court. oe Further found in the document referred to is @ 6: ‘ App. 42°. The news media are free to report what occurs in the course of the judicial proceeding itself. ‘the bench should utilize available measures such as cautionary instructions, sequestration of the jury and the holding of hearings on _ evidence’ after the empaneling of the jury, to insure that G the jury's deliberations are based upon evidence presented “to them in court. - (Emphasis Supplied, ) OOTP ase. Oe ee . It was the feeling of the Court that the precautions taken arg ta i * here by the order under attack were reasonable and necessary. The « rai as last quoted paragraph containing the words “such as" cannot be construed ‘as “limited .to". ee Now it is my judgment .jn this particular case that the order “ ,. NOT. PEST eee Tee OO OE RT PO Re eS ER as entered was reasonable and necessary. It must always be born in, mind -that testimony or evidence given in open court in the presence of the jurye is not affected by the order, nor is any , - Sy : ows evidence offered during the so-called "penalty phase", if that phase be reached: It must also be borne in mind that the trial "4 court's primary duty is to insure & fair trial to all parties. “ne court beng fully advised’in the premises makes the - followirig:' FINDINGS OF FACT ‘ “ a That Dee Norton and Sam Sperry are newspaper reporters and employees of the Seattle Times. Company, and were present during the trial proceedings in the case of The State of Washington v. Thomas Eugene Braun and Leonard Eugene: Maine, Snohomish County Superior Court cause No. 4121, commencing on Ootebiex pe 1970, < a , and,were present in the courtroom on the 28th day of October, 1970. | | os - That at the time the jury was selected and empaneled to hear ; the pending crimina} trial, it was instructed by the trial judge, in parts: on follows: ‘ The instructions I am about to give you are * applicable until you have been discharged as jurors in this case. Compliance with these App. 43° rules @Quring the first phase of the trial > will be difficultebecause of your exposure . to your family and others. By consenting to your separation, the defendants and the prosecuting attorney are entrusting to you a, greet responsibility. The law requires ‘that you merit the trust the? have placed in you. ~ Do not discuss.this case or any crimi- *nal case or any criminal-matter among your- selves or with anyone else. Do not permit anyone to discuss such subjects with you or - in your presence. The violation of this order may involve a personal penalty to you and may result in a mistrial which would cause great injury to the parties in this case. Do not read, view or listen to any report ina newspaper, radio or television on the subject of ‘this trial or any other criminal trial. Do not permit anyone to read or comment on this trial or any criminal trial. tp you or in your presence. During the course.of this trial, do not .read, view or listen to any report in a newspaper, radio or television on the subject of crime or sentences which result . from a criminal conviction. Similarly, do not engage in any conversation with anyone with regard to such subjects and do not permit such a conversation. to be carried on in your presence. If you are asked about the case, you should advise the person making inquiry ‘ . that you are under the court's instruction not to discuss it. When the trial is over you will be released from this instruction and you will then be free to discuss the case and your experience as juror. 1II « hoax That on October 8, 1970, the trial judge promulgated” its "SECOND ORDER’ RE TRIAL PROCEDURE AND NEWS MEDIA COVERAGE" ‘ich order provided, in part, as follows: 2. No Court proceedings shall be reported upon or disseminated to the public by any form of news media, including, but not limited to newspaper, magazine, radio and television coverage, except those proceedings occurring in open Court in the presence of the Judge, jury, court reporter, defendants and counsel for all parties. No report shall be made by such news media in any event of matters or testiiony ruléd App. 44 — inadmisseble.or stricken by ‘the trial judge at the tine of the offer of the matter or testimony. : The requirement that all parties be ' ‘ present shall not apply to reports of matters of non-testimonal or non-evidentiary charac- ter, such.as description of .Courtroom setting and the like, and general descriptions of. re- schedulings and the court procedure. The limitations on matters to be reported pre- viously noted shall not apply ‘after completion. - Of trial and dismissal of the JUry. 4 All counsel, news media, reporters, announcers and judicial personnel, including. | the Judge, shall be governed by the. rules ° and spirit of the Statement of Principles * ' of the Bench-Bar-Press of the State of Washington promulgated and dated the 26th day of March, 1966." ° . Iv / That defendants Sam Sperry and Dee Norton were not named parties to the "Second Order Re Trial Procedure and News Media Coverage", nor named parties to, the cause of State v. Braun and Maine, but were aware of the “contents of said Order at all times material hereto and, had been furnished, copies thereof, : re | ‘That at the comméncement of selection of the jury to hear’: the pending criminal case of State v. Braun and Maine it was the understanding and agreement of the trial judge, counsel for the state, and counsel for the defense, that the members of the jury as finally selécted er not be sequestered by the trial judge during the "guilt" phase of the pending trial, but would be Sequestered during he “penalty” phase if such should be senene* ary. That this understanding was communicated to the members of the jury at the time of their selection. : vI THat on the 28th day of October, 1970, the'State of ' Washington called as witnesses in ‘the pending criminal trial,. Howardine Mease, Lloyd Berry, Hubert Charin, and Robert Andre, - : App. 45. PERILS ee F te! v H : ope “Ryegate ry — — ~ — a Be en ae % who testifies in open court and in the absence of the jury to certain facts and incidents to establish the presence or absence of probable cause for the arrest of the named defendants Braun and Maine, and the legality of search incident to such arrest. Certain testimony of Howardine Mease and Lloyd Berry was held “on October 28, 1970, by the trial judge to be inadmissable and not to be presented to the jury. VII * That on the 29th day of October, 1970, defendants Dee Norton and Sam Sperry advised the trial judge that they had. . Caused a story te-be-prepared and submitted to their .publisher, which story contained evidence concerning matters which had been presented in open court in the absence of the jury ‘on the preceding day and that such oteny would appear in the Seattle Times, a daily newspaper, on the 29th day of October, 1970. Then on the 29th day of October an article under the byline of Gee Norton and Sam Sperry did appear in the fourth ont fifth — editions of the Seattle Times, at pages C4, which- article referred to that testimony given in open court in the absence of the jury en the 28th day of October, 1970. A copy of the said article _ is attached to these findings labeled Appendage A and incorporated herein as if fully set forth. VIII That Sam Sperry and Dee Norton willfully and knowingly caused the article to be prepared and.published. IX . . That on the 29th day of October, 1970, Dee Norton and Sam Sperry were called haters the bench by’ the eadedasqnsd trial judge and were advised of the Court's know ledge of the story i and were ordered to appear for hearing on the alleged violation of the order. They were at that time barred from attending j ers App. 46 further trial proceedings of the principal criminal proceedings. until they should agree to be -bound by that prior order dated : > , October 8, 1970. That pursuant to the order of October 29, 1970, Dee Norton and.Sam Sperry did appear at 8:30 a.m. on November 2, © a ae, . ~~ ; That at said hearing, the undersigned court did rescind its prior order barring said defendants from its courtroom, and did further modify Section 2 of i'ts prior order of October 8, 1970 to read: : é . 2. No report shall be made by any form of news media including, but not limited to newspaper, magazine, radio and television of argument or of matters or testimony ruled inadmissible or stricken by the trial judge, when such argument, matters or, testimony are heard and determined outside’ the presence of the jury. All hearings on such matters and testimony shall be :con- ducted with all convenient dispatch, in order to facili- tate coverage by the news media. “s ; Such limitation shall not apply to ‘reports of matters of non-testimonial or non-évidentiary character, such as description of courtroom setting and the like, and. general descriptions or reschedulings and court procedure. The limitations on matters to be reported previously noted shall not apply after completion pf trial and dismissal of the jury or at such time as the jpry shall be sequestered. . “All counsel, news media, reporters, announcere and judicial personnel, including the judge, shall be governed by the rules and spirit of the Statement of Principles of the Bench-Bar-Press of the State of Washington promulgated and dated the 26th day of March, 1966. A copy of said Amended Order is attached hereto as appendage "B" and incorporated herein as though. here fully set forth. WHEREFORE, the undersigned Court having made its Findings ‘of Fact, makes the following CONCLUSIONS OF LAW me That the Court has jurisdiction over this cause and over the persons of Dee Norton and Sam Sperry. > “ App. 47 at : - That the. order promulgated. October 8, 1970, entitled “Second, Order Re Trial Procedure ong owe Media Coverage" was ; ' : m : a reasonable aiid lawful-order of the court for the protection ‘ - of the defendants and the insurance of a fair trial. eon : I1l = ne | : That Dee Norton and Sam Sperry are in civilfcontémpt of- - the court for a publication of that article attached as Appendage A harote in the Seattle Times on October 29,° 1970, in violation of 'the terms of ‘the order of October me 1970, herein- before referred to. DONE IN OPEN COURT ae: |) day of tenner, 1970. pe THOMAS G. McCREA, —“S5ag6 App. 48 ‘ ‘APPENDIX E , IN THE SUPERIOR COURT:OF THE STATE ‘OF WASHINGTON IN AND FOR THE COUNTY OF SNONOMISH STATE ex re‘.. THE SUPERIOR COURT OF SNOHOMISI! COUNTY, wo. 105342 Plaintiff vs. ORDER OF CONTEMPT ON” SAM SPERRY and DEE NORTON, ; ORDER TO SHOW CAUSE ‘ Defendants: This. matter having come on regularly for hearing in open — Court before the Honorable Thomas G. McCrea upon the state's Motion and Order to Show Cause on the 2nd day of-November,. 1970, 4 and the defendants, Sam Sperry and Dee Norton, being present in ey tog open court, together. with their attorney; Duncan A. Bayne, and P acy sll the State ‘being represented y Robert E. Schillberg, Prosecuting Attorney, David G. Metcalf, Deputy Prosecuting Attorney, aren Bruce A. Keithly, Deputy Prosecuting Attorney, and the Court having considered the stipulated facts, the arguments of counsel, and having considered: the files ‘sik abistaitin herein, and Further, the Court having entered Findings of Saat and Con-. clusions of Law with respect to the charges —— the said Sam Sperry and Dee Norton of being in contempt of this Court for violation of a prior order of this ene See. the Court being . fully apprised in the premises: — ‘ > IT IS HEREBY ORDERED, ADJUDGED and DECREED that thé said Sam Sperry and Dee Norton are in contempt of this Court and of | that certain order of this Court entitled "Second Order re Trial Procedure and News Media Covegage" dated “the 8th day of October, . 1970, and. in particular for violation of numbered paragraph 2 of App. 49 that order, by reason of, the publication a an article in the Seattle santa newsfaper of the 29th’ day of October, 1970. IT 1S "FURTHER ORDERED, ADJUDGED and DECREED that the said > Dee Norton and Sam spelify shall be punished by and do have 1evied against ‘theft fines in the a of $ : each. IT IS FINALLY ORDERED that the fine levied by iia aol shall be payable ten (10) days from and after the time for notice of appeal. from this order shall run; and if such oudar should be appealed, ten (10) days from and after the decision on — ‘ ghall become final. DONE “IN. OPEN COURT this "gay of November, 1970. > App. 50 ~ APPENDIX: F The Seattle Times Thursday, October 29, 1970 ' DEFENSE LOSES ROUND IN ' EVERETT SLAYING TRIAL. By DEE Norton and SAM R. SPERRY Times Staff Reporters Evenert—California authorities had probable cause for’ _ arresting Thomas E. Braun and Leonard E. Maine in a Jamestown, Calif., hotel, Snohomish County Superior Court J udge Thomas G. McCrea ruled today. The judge announced his ruling in the absence of the - jury after the morning recess. Prior to the recess, defense attorneys had attacked the consistency and cr edibility of testimony given by Lt. Robert Andre, .a Tuolumne - County sheriff's officer. ‘Andre was called as a prosecution witness. _ ‘The judge also ruled California authorities conducted a legal search of the hotel rooms Braun and Maine were in at the time of their arrest, August 22, 1967.. Braun, 21, and Maine, 22, are accused of first-degree murder in the death of Mrs. Deanna Buse, 21, of Monroe, in August, 1967. Andre, who was a lieutenant with the Tuolumne County Sheriff's Department in 1967, was the fourth officer called by David Metcalf, chief assistant criminal deputy prosecutor. Andre repeated the description of the arrest given ear- lier by. Lt. William Endicott of the California Highway Patrol and Constable Hubert Chafin of Jamestown. Andre said‘the defendants were found sleeping in sep- — arate rooms at the Jamestown ane the morning of Au-. - ‘ gust 22. Andre and Endicott, ‘using a master key, opened the doors to the rooms and found both blocked by safety chains from the inside. . Maine was ordered from his hed, directed to. remove the chain and to lie face down on the hallway floor where he was handcuffed, Andre said. . The door of Braun’s room was forced open and the - youth taken into the hallway and handcuffed, Andre said. App, 51 oe ; RPE OLE ELE MOE LET LD RPM RESINS re eels er a ak area Under questioning by Richard’ Bailey and Samuel Hale, defense attorneys, Andre) said search and arrest _ warrants had not been obtained, although he had driven past three courts enroute to the hotel. : Hale emphasized in his questioning that Andre had time and information reauired to obtain warrants. Under cross-examination by-Hale; Andre outlined how _ the hotel had been surrounded ‘by officers and its lobby cleared of persons who might be injured. Numerous .22-caliber bullets were found in the cloth- ing of each suspect when their rooms were searched, Andre said, and a handgun was foud wrapped in a car blanket in a plastic carrying case in Braun's room, he said. . Andre said he advised the suspects of their rights as ‘they lay face down on the hallway floor anes their rooms had been searched. Earlier Chafin testified he found a sedan cain near the hotel that matched the description of one believed used by two men wanted for = in the shooting _ of a girl earlier the same morning. * Mrs. Howardine Mease, of Gaviota, Calif., testified ear- lier yesterday that she and her. family discovered the girl - sprawled in the middle of a highway neaf Jamestown. Stopping to assist her, Mrs. Mease said the girl told her two men had killed her companion, shot her and driven off in a 1967 green Mercury sedan. Officer ‘Lloyd Berry of the highway patrol then testi- fied he was ordered to the scene and broadcast on his radio | the information given him by Mrs. Mease. ; Mrs. Mease also said: the girl told her the assailants were named “Mike and John.” ' Chafin said he heard highway patrol radio broadeasts and found a green 1967 Buick otherwise fitting the de- scription parked across the street from the hotel: : ‘Chafii said he watched the car and ‘radioed for assist- ance from the Tuolumne County Sheriff’s Department. - About half a dozen’ ‘officers surrounded the hotel when _ Andre and Endicott entéred the building and found “Mike Ford” and “John Ford” registered as guests, Chafin said. ae \ App. 52 le 7 © t "NF ) KPPENDIX G IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF SNOHOMISH + : ; y-° THE STATE OF WASHINGTON, ) . / : > ‘Plaintiff -) Ne. 4121. vs. — iS - ? THOMAS EUGENE BRAUN and ~—)- AMENDED SECOND LEONARD EUGENE-MAINE, | ). ORDER RE TRIAL Aaa Sy ee _ Deferidant -). PROCEDURE AND © _ ) NEWS.MEDIA .) COVERAGE ? Inasmuch as it appears that there is some probability that ‘ the jurors may in this cause be allowed to separate during what © -may be called the “guilt phase’’.of this proposed trial, the follow- ing order will be in effect until the question of separation is de- . termined, and then may or may not be continued thereafter, depending upon whether or not the jury is in fact.allowed to.” - . separate during this phase of the trial. : : IT IS HEREBY ORDERED, ADJUDGED and DECREED: __ |. All approaches to the Courtrooms on-the second floor of the Courthouse shall be kept clear for the purpose of free _ - ACCESS thereto by those employed or those who have business to . transact therein. | 2. No report shall’ be made by any form of news média, including, but not limited to newspaper, magazine} adio and _ television of argument, or of matters.or testimony ruled inadmis- - sible or stricken:by the trial judge, when such argument, matters * or testimony are heard and determined outside the presencé of . conducted with dispatch, in order to facilitate coverage by the news media. © the jury. All hearings on such matters‘and testimony shall be App. 53 ‘. MTGE AA NERS AERIS LEE COS AREER LD LIS REE AE in A BBS uit WetaM ate wits ots vaasla it NE EME Hie micah Such limitation shall not apply to reports of matters of non-testimonial or non-evidentiary character, such as description of Courtroom setting and the like, and general descriptions of . reschedulings and court procedure. The limitations on matters - to be reported previously noted shall not apply after completion - of trial and dismissal of the j jury or at such time as the j jury shall . be sequestered: All counsel, news media, reporters, announcers and judicial personnel, including the Judgé, shall be governed by the rules and spirit of the Statement of Principles of the Bench-Bar- Press of the State of Washington promulgated _ dated the 26th day of March, 1966. 3. Sketches or drawings shall be permitted to be made on” the second floor of. the Courthouse except such as would be | inflammatory in nature or tend to influence the outcome of the trial. 4. » Jurors and those persons summoned but excused from serving as jurrors are forbidden from making any statements out of Court of any kind whatsoevertencerning this case from this date and until such time as the jury is discharged; and likewise those connected with news media and all the modern forms that news media take, are restricted from talking to jurors sworn to "try the cause, jurors summoned but excused and all jurors that were drawn for this case. ) No photographs of any kind of jurors, as a group or indivi- - dually, shall be taken at: any. time or place without prior permis- sion of the Court. The list of names and addresses of the prospective jurors shall not-be released-or published. The naines‘of the excused _ jurors may be published. The names of selected j jurors shall not be released or published until after selected jurors and alternate selected jurors have been sworn. 5. The official court reporters who may report these pro- ceedings are prohibited from selling, giving, furnishing or disseminating any transcript of these proceedings to any person _ other than counsel forthe defense and the State until the jurors are selected and sworn to try the issues herein, and further, until the matter is finally submitted to the jurors for their a , App. 54 " media. deliberation. 6. Attendance in the Courtroom during the trial pro- ceedings shall be limited to seating accomodations of the Court- - room, and an effort will be made to set aside adequate portion of the seating facilities for documented members of the news re No one. except attorneys and persons authorized by the Court may handle any exhibits. 8. No recording devices shall be allowed inside the _Courtroom or in the’ hall.of the Courthouse Annex on the second floor of the Snohomish County. Courthouse; except that any -attorney involved who desires as an aid to him in trying the case may bring a recording device and may ‘use it for his own purposes. _ . ; . 9. No cameras will be permitted on-the second floor of the Courthouse Annex. | DONE IN OPEN COURT this 2nd day of November, 1970. s/ Thomas G. McCrea THOMAS G. MC CREA, Judge App. 55 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1593%3A2. Public record. Not legal advice.