The Supreme Court let stand yesterday a decision that a federal judge can use special "trial management" techniques to limit news coverage of a criminal trial if the judge perceives a "bare possibility" of unfairness to defendants.
The case grew out of a 1975 trial of former senator Edward J. Gurney (R-Fla.) on bribery and fraud charges. He was acquitted on five counts but went to trial a second time on additional charges of conspiracy and lying to a grand jury. He was found innocent on the two counts in October 1976.
U.S. District Court Judge Ben Krentzman presided at the first trial, in Tampa, which was covered throughout by reporters Gene Miller of the Miami Herald and Angel Castillo of the St. Petersburg Times.
Krentzman praised them and other reporters as "perfect gentlemen" who "have cooperated" and have done "a remarkable job. I have come to a renewed appreciation for investigative journalism."
But in the first known case of its kind, Krentzman, citing a "bare possibility" that the unsequestered jurors were reading the newspapers, issued, but did not fully disclose, orders closing to the press and public:
Exhibits admitted into evidence but not yet read or shown to jurors.
Comunications between him and the jury after it was sequestered.
About 400 conferences at the bench that, if transcribed, would have filled 4,000 pages, and that, in one instances, turned out to have involved a proffer of testimony be a codefendant of Gurney as to whether the government had promised not to indict him if he were to alter his account of a crucial conversation.
During the trial, Miller and Castillo sought transcripts of bench conferences. Each time they did, Krentzman sealed the papers.
The reporters and their newspapers took their case to the 5th U.S. Circuit Court of Appeals, protesting that Krenztman's order amounted to a prior restraint of publication in violation of the First Amendment to the Constitution and a denial of the right to a public trial.
"A public trial ensures the public's right to know how justice is administered," they argued. Yet Krenztman's orders closed off portions of the trial not submitted to the jury "as effectively as if he had locked the courtroom doors," they said.
They also protested that although they were the targets of the orders, they had no notice ofsthem or a chance to challenge them in a hearing.
The appeals court rejected such arguments, ruling last September that "the First Amendment does not protect against whatever incidental burdens on newsgathering occurred in this case. The trial judge employed reasonable 'remedial measures' far short of prior restraint, to prevent possible prejudice and maintain an orderly trial."
In behalf of Krentzman, the Justice Department not only agreed but contended in a Supreme Court brief that the newspapers and the reporters were not parties to the case and had no legal rights to appeal to the 5th Circuit.