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Chapters 11 and 12: Free Press–Fair Trial
Chapters 11 and 12
Free Press–Fair Trial
Instructors should know that there are several additions to chapters 11 and 12. While much of the
law has not changed, and these chapters have not been updated as much as other chapters have
been updated, there are some additions that students will find interesting and relevant.
The nineteenth edition of the textbook introduced students to the Supreme Court’s holding in
Skilling v. United States on five criteria that trial judges should use to evaluate for a change of
venue. The 2010 case suggested that the justices still placed considerable faith in the notion that
a trial jury is a hardy institution. In this edition of the textbook, the so-called Skilling test has
seven criteria but some courts concentrate on a shorter list of four criteria. Lower courts use the
Skilling test to determine when a change of venue should be granted to a defendant. The textbook
explores some of these cases, and it comes to some conclusion about how the test is being
applied in the courtroom.
The use of personal electronic communication devices and social media sites such as Facebook
and Twitter by spectators, journalists, and jurors during a trial continues to generate conflicts that
judges are working over. A few federal trial courts are pushing back against the rules laid down
by the U.S. Judicial Conference, barring electronic devices from federal trials. There has been no
major revolt yet, but slowly some trial judges are finding that televising or even webcasting a
hearing is not going to pollute the judicial process. At the state level, California recently
considered a bill that would allow judges to fine jurors up to 1,500 dollars for the use of social
media and the Internet after evidence had surfaced of jurors using Google to research details
about cases.
Recent litigation has reinforced the idea that members of the press are frequently called upon to
raise questions of access in both civil and criminal cases. This edition of the textbook talks about
making motions to intervene in cases where both parties are happy to have documents sealed or
access restricted.
Both chapters also contain multiple new examples of orders closing courts, restricting the ability
of the press to report on trials, and appellate court rulings on these issues. In addition, Chapter 12
has an updated section on a federal text program that has been allowing some federal courts to
broadcast live proceedings.
Problem Questions
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Chapters 11 and 12: Free Press–Fair Trial
1. At the outset of a highly-publicized trial of a graduate student who shot and killed six
people and wounded 12 others in the student union in Madison, Wisconsin, Judge William
Bolt issued the following order:
“I have heard too many remarks on television and read too many comments in the
newspapers from persons associated with the case. Therefore, I am today ordering all
lawyers, law officers, witnesses and other participants not to initiate any contact with the
mass media, not to answer any questions posed by the mass media, and not to say anything
in public about any aspect of the matters to be litigated in this trial. Anyone violating this
order will be subject to contempt proceedings, which may include a substantial fine or even
jail time.”
Lawyers for the defendant and the press challenged this order, arguing that Judge Bolt’s
order violated the provisions of the test for restrictive orders laid down by the Supreme
Court in Nebraska Press Association v. Stuart. They asked the Wisconsin Court of Appeals
to void the order.
a. What are the provisions of the Nebraska Press Association test for restrictive orders?
b. Does this test apply to this order? Why, or why not?
c. Is Judge Bolt’s order valid? Why, or why not?
Answer: The order would be invalid. It is simply too broad. It also forbids any
comments about the case by the participants who would be protected by the U.S.
2. Robert Donner was released from prison in 2015, and he headed west after his release. The
convicted sex offender, who had served five years for child molestation, settled in a small
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Chapters 11 and 12: Free Press–Fair Trial
town in Wyoming. His status as a convicted sex offender was unknown to town residents.
Donner took a job in a gas station, and he became a good neighbor to the people living near
the small house he rented. He befriended a family nearby and happily agreed to baby sit for
the couples’ small children, a girl of age nine years and a boy of age six years, as both
parents often worked.
On a Monday afternoon in early 2017, Donner went to his neighbor’s home, killed both the
parents, and kidnapped their children. As he fled, a region wide manhunt began. The state
issued AMBER alerts for the missing children. Press coverage on the murders, kidnapping,
and ensuing manhunt was massive. Scores of stories were published and broadcast about
Donner, his past criminal history, the murders, and the kidnapping. Ten days after the
murders, Donner was sighted at a café in Nevada with the little girl. Police arrested him.
The child told the police that Donner had molested the boy repeatedly and then killed him.
His body was found in a shallow grave at a highway rest stop. More publicity flooded the
region about the crimes, the killings, and the arrest.
After Donner was arraigned, Judge Sylvia Mulder issued a restrictive order barring the
press from carrying any stories about Donner’s past criminal history, and stories that
discussed what the girl had told police about the fate of her brother. The judge said such
stories could be prejudicial to the defendant. The child was scheduled to testify in court as
a prime witness against Donner, who had pleaded not guilty. Judge Mulder informed the
press that the courtroom would be closed during the girl’s testimony to protect her from
embarrassment and any psychological harm that might accrue from talking about her
ordeal in a room full of strangers. The judge said a transcript of the girl’s testimony would
be released after her appearance.
The press appealed both the restrictive order and the closure order.
a. Would the appellate court uphold the restrictive order?
Answer: The court would apply the Nebraska Press Association test. Clearly, there
was intense and pervasive publicity about the case. And given the magnitude and
breadth of the coverage, it is unlikely that Judge Mulder could have found an
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Chapters 11 and 12: Free Press–Fair Trial
Copyright © 2018 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior
written consent of McGraw-Hill Education.
unconstitutional.
b. Would the appellate court uphold the closure order?
Answer: The closure order would certainly meet the Supreme Court’s Press-
Enterprise test. Courts across America have on occasion permitted the closure of
3. Janet Melrose, a well-known financial planner, was held in Chicago in late 2016 for
operating a complicated Ponzi scheme. A jury acquitted her of breach of contract and lying
to a grand jury, but they found her guilty of seven counts of fraud. Melrose had been
arrested in January 2015. Her case was widely publicized in both the print and broadcast
media because some of her clients were well-known Chicago celebrities. Her attorneys
petitioned the U.S. Court of Appeals to reverse the conviction on the grounds that she had
not received a fair trial. They argued that the jury was biased, and the trial judge should
have granted their request for a change of venue.
a. Outline what the appellate court should consider when it evaluates the argument that
the jury was undoubtedly biased because of all the publicity in the case before the
trial.
Answer: The court should consider whether the media interfered with the
b. How will the appellate court respond to the request for reversal?
Answer: It will probably reject the request based on the following factors:
• There is no evidence the media actually interfered with the proceeding.
