State of Maryland v. Baltimore Radio Show, No. 300

• Court: United States Supreme Court
• Writing for the Court: The pertinent part of the judgment of the court, delivered through Darling
• Citation: 338 U.S. 912,94 L.Ed. 562,70 S.Ct. 252
• Parties: STATE OF MARYLAND v. BALTIMORE RADIO SHOW, Inc. et al
• Docket Number: No. 300
• Decision Date: 09 January 1950

338 U.S. 912 70 S.Ct. 252 94 L.Ed. 562 STATE OF MARYLAND

v.

BALTIMORE RADIO SHOW, Inc. et al.

No. 300. Decided Jan. 9, 1950.

Messrs. Hall Hammond, Attorney General of Maryland, and Harrison L. Winter, Assistant Attorney General, for petitioner.

Messrs. J. Purdon Wright and W. Frank Every, for respondents.

Messrs. Elisha Hanson, William K. Van Allen and Arthur B. Hanson, amicus curiae, filed brief for the American Newspaper Publishers Association.

Opinion of Mr. Justice FRANKFURTER respecting the denial of the petition for writ of certiorari.

The Criminal Court of Baltimore City found the respondents guilty of contempt and imposed fines for broadcasting over local radio stations matter relating to one Eugene H. James at a time when he was in custody on a charge of murder. The facts upon which these findings were based are best narrated in the authoritative statement of the trial court:

'A little girl in one of the parks of Washington, D.C., had been murdered under horrible and tragic circumstances. Some ten days later, little Marsha Brill was dragged from her bicycle on one of the public thoroughfares of Baltimore City while in the company, or at least, in the vicinity of two of her playmates, and there stabbed to death. The impact of those two similar crimes upon the public mind was terrific. The people throughout the City were outraged. Not only were they outraged but they were terrified. Certainly, and parent of a young child

Page 913

must have felt a dread at the thought that his or her child might be killed while out upon the thoroughfares of Baltimore City. We think we are justified in drawing the conclusion that there was widespread and compelling public interest in the Brill murder. We think we are justified in assuming that many, many ears were on that evening in Baltimore, glued to their radios. And what happened? Mr. Connelly goes on the air and announces 'Stand by for a sensation.' Now, gentlemen, it is a fair and safe bet that whatever the Hooperrating of his station may be, no listener tuned to his station was going to turn his radio off when he heard that announcement. Mr. Connelly then proceeded to explain that James had been apprehended and that he had been charged with the Brill murder. That was all right. Nobody could quarrel with that, but then he goes on to say that James had confessed to this dastardly crime, that he has a long criminal record, that he went out to the scene with the officers and there re-enacted the crime, and further, dug up from somewhere down in the leaves the knife that he had used to murder the little girl. Now, gentlemen, the Court has no difficulty in concluding that the broadcast was devastating. Anybody who heard it would never forget it. The question then before us is: Did that broadcast and others which were less damaging by the other stations, have a clear and present effect upon the administration of justice? The Court is bound to say that we do not believe that those broadcasts had any appreciable effect to say nothing of constituting a clear and present danger, upon the decision of the Judges who tried the case. At the moment we do not recall just who those Judges were, but Judges are supposed to be made of sterner stuff than to be influenced by irresponsible statements regarding pend-

Page 914

ing cases. They are trained to put aside inadmissible evidence and while we, of course, recognize our limitations, I think that most Judges, at least, are fairly able to disregard improper influences which may have reached their attention.

'Now, what about the jury? In the first place, what is this jury that we are talking about? They are twelve men, or in most jurisdictions now, as in Maryland, men and women who are picked from all walks of life and who have the responsibility of hearing cases and determining, in this State at least, not only the facts but the law in the case. It may be unfortunate, perhaps, but certainly the fact is that the jury's verdict is final in most cases. There is the limited protection of the accused to apply for a new trial, but the Court of Appeals can not determine—review and determine—the propriety of the verdict reached by the jury either on the law or on the facts. Now this jury system is intended, and I think it works out that way, to bring to the trial of a case as one element, the public opinion in the community. It is true that the jury is sworn to decide the case upon the evidence which it hears from the witness stand, but I think that no experienced lawyer would contend that a jury is not expected to bring to the consideration of its verdict the temperament of the community in which the members of the jury live. The jury is called upon to decide the facts as it hears them from the witness stand in the light of its past experience and, if you please, its past knowledge. True, attempts are made to get jurors who have not been touched with any previous influence in the case, but the safeguards that are provided for the realization of that ideal are all too limited.

'The Court knows no graver responsibility that devolves upon Counsel for the Defense in a serious

Page 915

criminal case than the responsibility of advising his client whether to elect a jury trial or a court trial. Counsel must be able to sense public opinion, and he must evaluate the possible effect upon the jurors' minds of those things which they know or think they know. Doubtless, all of us have seen cases tried in which we felt that the Counsel made errors of judgment as to how the particular cases ought to be tried. They are, however, doing the best that they can and, as I have indicated, theirs is a grave responsibility, because it is irrevocable. When a jury determines a case that terminates the case and if Counsel may have made an unfortunate choice then his client suffers the consequences.

'Now, the Court can not help but feel that the broadcast referred to in these cases must have had an indelible effect upon the public mind and that that effect was one that was bound to follow the members of the panel into the jury room. The Court hardly needs evidence in this factual situation to reach the conclusion that James' free choice to either a court trial on the one hand and a jury trial on the other, has been clearly and definitely interfered with. However, we do have the testimony of his Counsel, Mr. Murphy, (and we are bound to say that his testimony seemed to be reasonable and persuasive) who told the Court that he felt that he had no choice. He simply could not afford to subject his client to the risk of trying his case before a jury in a community where this extraneous and improper matter had been broadcast. He did, in fact, elect a court trial, but he did not have any alternative, according to his Counsel, and the Court is bound to say that we agree with his Counsel. The suggestion has been made here that the right to a jury trial could have been protected by the right of removal and in this case

Page 916

he did have the right, the Constitutional right, of removal. We assume that the Court would have sent the case to some other Circuit for trial but Mr. Murphy says that there were some Counties in the State where he did not want to send his client for a jury trial. Not only that, but many parts of the State were blanketed by the same broadcast information that was available to the people of the City of Baltimore. Counsel siad that at least one of the stations had a radius of seven hundred and fifty miles.

'The suggestion was made here also, that the mischief could have been avoided by exercising the right of the Defense to examine, on their voir dire, all prospective jurors and then inquiring as to whether or not they had heard these broadcasts. Well, now, it hardly seems necessary for the Court to say to men who are experienced in the trial of jury cases, that every time Defense Counsel asked a prospective juror whether he had heard a radio broadcast to the effect that his client has confessed to this crime or that he has been guilty of similar crimes, he would by that act be driving just one more nail into James' coffin. We think, therefore, that remedy was useless.

'Now, gentlemen, the Court must conclude that these broadcasts did constitute, not merely a clear and present danger to the administration of justice, but an actual obstruction of the administration of justice, in that they deprived the Defendant, James, of his Constitutional right to have an impartial jury trial.'

The Court of Appeals of Maryland reversed these convictions. 67 A.2d 497. It did so by sustaining 'the chief contention of the appellants, that the power to punish for contempt is limited by the First and Fourteenth Amendments to the Federal Constitution, and that the facts in the case at bar cannot support the judgments,

Page 917

in the light of those amendments, as authoritatively construed by the Supreme Court.' 67 A.2d at page 507. The decision of the Court of Appeals was thus summarized in the dissenting opinion of Judge Markell: 'This court holds that under the decisions of the Supreme Court (Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346; Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295, and Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546) the judgments below violate the freedom of speech and of the press under the Fourteenth Amendment. If this is the correct interpretation of these decisions, of course they are conclusive.' 67 A.2d at page 518.

Thereupon the State of Maryland asked this Court to issue a writ of certiorari to review the decision of its Court of Appeals. In its petition Maryland urges that while the Court of Appeals was of course bound by the decisions of this Court, that court misconceived our rulings, that the interpretation which it placed upon the Bridges, Pennekamp and Craig cases was not correct, with the result that it erroneously reversed the...