Crime News

WHEN the American Bar Association approved the recommendations of its Advisory Commission on Fair Trial and Free Press last week, no one expected the decision to slip by unnoticed. The Committee-headed by Justice Paul C. Reardon of the Massachusetts Supreme Judicial Court-advocated restricting the information given to mass media during criminal procedings on the grounds that publicity often prejudiced jurors' decisions. There is probably no perfect solution to a conflict as fundamental as the clash between freedom of the press and the right to fair trial. But the loud indignation of the great majority of media representatives seems unjust and overblown.

The American Society of Newspaper Editors wanted the ABA's House of Delegates to postpone decisions so that the media could study how jurors are influenced by publicity. But the ABA rightly decided that their committees three-year study justified immediate action. The committee injury documented a problem even media representatives acknowledge is critical: far too often, defendants, are convicted on the basis of what jurors read in newspapers or hear on T.V. instead of what happens in court. Some of this information is never intended for jurors-such as pre-trial hearings on the admissibly of evidence-and none of it is obtained under oath.

The media have focused their ire on the ABA recommendation that judges use the threat of contempt rulings to enforce restrictions on pre-trial publicity. The media have charged that such judicial interference would be a blatant violation of the first amendment.

The dangers are real, but not overwhelming. The ABA proposal narrowly limits punishable violations to leaks that are, "willfully designed...to affect the outcome of the trial, and that seriously threatens to have such an effect." Contempt rulings would have to be backed by juries, and according to Committee members, penalties would be reprimands and fines, not prison terms, for editors and publishers. The threatened interference with the first amendment seems mild compared with the toll now taken by violations of the sixth.

As the media have noisily pointed out, they are by no means the only-or the primary-culprits in leaking extra-judicial information. The police, prosecutors, and lawyers-as sources of press information-actually deserve the largest part of the blame. The ABA readily acknowledges this and the committee's recommendations aim primarily at these groups. If local bars adopt the ABA guidelines (as now seems likely) they can expel lawyers who violate them. And the ABA also recommended that police and courts punish law enforcement or judicial officers who violate ABA's proposed restrictions.

The cooperation of editors could have prevented this crisis in relations between the press and the judiciary, but while almost all media representatives pay lip service to voluntary censorship of criminal news, only a minority have exercised the needed restraint. The ABA's cautious restrictions on the freedom of the press are probably necessary.