Philadelphia Inquirer asks U.S. Supreme Court to review ban that kept media from interviewing jurors

From the Winter 2003 issue of The News Media & The Law, page 21.

By Sara Thacker

The jury in a highly publicized New Jersey rabbi’s murder trial was not anonymous, but from the vantage point of reporters covering the trial, it may as well have been.

The New Jersey Supreme Court decision barring the media from interviewing discharged jurors in the case of Fred Neulander, a rabbi whose first murder trial ended in a hung jury, is up for review. The Philadelphia Inquirer is asking the U.S. Supreme Court to review the controversial decision.

The New Jersey Supreme Court’s ruling prohibited media interviews with discharged jurors from the first trial of Neulander, who was accused and later convicted of murdering his wife, until after his retrial. The court prohibited media interviews of the discharged jurors on any topic and even prohibited those jurors who wanted to speak to the press from doing so.

After the New Jersey Supreme Court failed to overturn the order, the Inquirer in December 2002 petitioned the U.S. Supreme Court to grant review. The Reporters Committee for Freedom of the Press, joined by 11 other media organizations, filed a friend-of-the-court brief with the U.S. Supreme Court supporting the Inquirer’s request for review.

If review is granted, the case would mark the first time in 26 years that the Court has considered the constitutionality of prior restraints used to protect a defendant’s right to a fair trial.

In 1976, the U.S. Supreme Court struck down a prior restraint order prohibiting publication of confessions or admissions by the defendant or facts strongly implicative of the defendant before the jury was impaneled in the case against Erwin Charles Simant. Simant was suspected of murdering six members of the Henry Kellie family in 1975.

The case reinforced the high presumption against the use of prior restraints.

As the Court wrote, “prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights.” (Nebraska Press Association v. Stuart)

The Court in Nebraska Press set forth a three-part test to determine whether a prior restraint order is warranted. The trial judge issuing the order must examine the nature and extent of pretrial coverage, whether other measures would likely mitigate the effects of unrestrained pretrial publicity, and how effectively a restraining order would operate to prevent the threatened danger.

In its petition to the U.S. Supreme Court, the Inquirer argued that the Court should grant review because the prior restraint order barring media interviews of discharged jurors failed to meet this test.

In examining the nature and extent of pretrial publicity threatening Neulander’s right to a fair trial, the Inquirer argued that “the press activity to be restrained must actually and certainly endanger the defendant’s right to a fair trial.” The New Jersey Supreme Court’s speculation that media interviews might give insight into the jury’s deliberations, thereby giving an advantage to the prosecution at Neulander’s retrial, was not enough. Moreover, as the Inquirer explained in its petition, the prosecution cannot be said to have an unfair advantage when the defense has access to the same information about the jury’s deliberations.

If the court was concerned about providing prosecutors with an unfair advantage, less restrictive alternatives existed to address this concern. “The court could have ordered the prosecuting team to screen itself from all post-trial press coverage pertaining to the jury deliberations,” the Inquirer wrote in its petition.

Finally, the prior restraint order failed to prevent prosecutors from learning about the jury’s deliberations from the first trial because jurors could discuss the case with anyone but the media. Under the prior restraint order, jurors could write books, post on Internet sites, and talk to friends, family and even strangers.

In this case, the Inquirer published articles regarding whether the foreperson on the first jury actually was a resident of Pennsylvania and therefore was not eligible for the jury impaneled in New Jersey. Four of the newspaper’s reporters were held in contempt for violating the prior restraint order. The newspaper is appealing the contempt charges.

After Neulander was convicted at retrial and ordered to serve a life sentence, journalists were free to interview discharged jurors from both the first and second trial. However, the inability of the press to interview the first jury for more than a year until the second jury issued a verdict restrained the press from educating and informing the public about why a mistrial occurred and investigating any possible misconduct.

“If the public is to have any faith in the administration of justice during the second trial, it needs to have confidence that if misconduct in the first trial occurred, it was exposed and resolved,” the media organizations wrote in their brief to the U.S. Supreme Court. If review is not granted by the Court, the ability of journalists to obtain important post-trial interviews with jurors will be threatened, thereby restricting information to the public and striking a blow to the First Amendment rights of the press.