The Journal of The DuPage County Bar Association

Back Issues > Vol. 17 (2004-05)

Media Exploitation of the Sensational Trial: How to Preserve and Protect the Non-Sequestered Jury – "A Modest Proposal"
By Myrna Smith and Robert Phillip Ward


As the scenario of the sensational murder case unfolds, its ever more sordid details inexorably emerge and are steadily revealed by the frenzied print and electronic media to be greedily engorged by the ensnared public. All the typical elements of the theater spectacle are present: a sympathetic victim in the person of a young and attractive pregnant wife, brutally murdered, with increasing suspicion focusing upon her evasive, philandering husband. Ah, the Scott Peterson trial one might say but, no, the Dr. Sam Sheppard case, a half century old but, apparently, still just as topical as that day in 1954 when the Ohio doctor was first charged in the crime. While the issues raised in the Sheppard case and the media circus that permeated the trial and, ultimately, tainted the jury are more germane than ever, this article shall neither dwell on the intricacies of that trial nor attempt to assess guilt or innocence. Rather this discussion shall instead be directed to the perennial struggle between the First Amendment’s guarantee of free speech and the Sixth Amendment right to a trial by an unbiased jury of one’s peers - specifically addressing the need in this age for new measures and novel approaches to safeguard the impartiality of the jury from the seemingly omnipotent and all intrusive media.


In terms of prevalent media scrutiny, the Sheppard and Peterson trials are uncannily parallel. Unless one has lived in total seclusion and isolation completely insulated and oblivious to the influences and distractions of the outside world, the non-stop media reporting and dissemination of the Peterson case and its trial proceedings have ensured that virtually all of us now know its convoluted particulars. While there is a consensus that the media have both the right and the duty to investigate and report matters of general "interest" to the public, nonetheless it must be unequivocally emphasized that the First Amendment does not bestow upon anyone the unfettered license to compromise a pending criminal trial.


Routinely, the debate and discussions surrounding the issues of a fair trial center on possible violations of the defendant’s due process rights. e.g., In the Sheppard case, the U.S. Supreme Court "concluded that Sheppard did not receive a fair trial consistent with the Due Process Clause of the 14th Amendment" because the extensive media coverage during the entire pretrial period and the extreme media attention, most of which was virulently opposed to the defendant (albeit some coverage being supportive of Dr. Sheppard) resulted in a violation of the defendant’s 14th Amendment due process rights.1

Consequently, irrespective of the outcome in the Peterson trial, it may be argued that the proceedings have already been irreparably tarnished, compromised, and jeopardized because of the unwarranted degree of media coverage and intrusion. Whatever the jury’s eventual verdict, proponents of both sides shall then point to the media spectacle as proof that the process was either thereby invalidated or that somehow (presumably the jury) bowed to outside pressures and influences.

It is well settled in Illinois that any communication with a juror during trial about a matter pending before the jury is deemed presumptively prejudicial to a defendant’s right to a fair trial. Although this presumption of prejudice is not conclusive, the burden rests upon the State to establish that such contact with the jurors was harmless to defendant.2

Unfortunately, sensational media reporting of the celebrated trial, particularly those replete with heinous, gruesome facts have tended to relegate the American criminal trial to the level of a midway sideshow. Of even more immediate concern is that the sideshow has now come to include a dismissed juror’s widely solicited opinions concerning the conduct and direction of the pending trial including his former role as juror therein. Because of pervasive wooing by the media, Justin Falconer, the 28 year-old dismissed Peterson juror, was immediately elevated to media darling and celebrity with instant qualifications to render his legal analysis about the merits of the prosecution’s case and offer his own premature verdict.

Not only did Falconer’s remarks betray an obvious (and to be expected) paucity of legal knowledge, but his bad judgment in advising the various media of his conclusions at a time when the prosecution had yet to complete its case in chief is an example of an "improper extraneous influence"3 that has the potential to affect the non-sequestered Peterson jury. Despite the potential effect of an improper extraneous influence, there are some who believe that because the prosecution has a distinct advantage over the defense that the Falconer-type commentary merely serves as leverage.


We witnessed the talking heads during the O.J. Simpson, Kobe Bryant and Martha Stewart’s trials, but uniquely in the Peterson trial have we observed a now dismissed juror of that trial directly challenging the prosecution’s case, with the case still pending. Whether the comments support the plaintiff or the defendant is irrelevant. By definition a fair trial means a judicial proceeding scrupulously equitable to both sides. Indeed, the possible compromising of a jury verdict by a former member of that panel strikes the authors as especially egregious inasmuch as it suggests a breach of the former juror’s oath to remain open-minded, unprejudiced, and to render a verdict only after careful deliberation of all the evidence adduced at trial.

Whereas many in the legal profession and the public at large have been educated and even conditioned to think of fair trial issues only insofar as they adversely affect defendants and their due process protections, the time is long overdue (although perhaps hastened by Falconer’s exploits) to address and remedy the problem raised by Falconer’s conduct. Although the instant case involves a previously unknown individual such as Falconer, it is indisputable that the possible harm to the proceedings and the administration of justice exist whether the juror is an ordinary citizen or a bona fide celebrity.

While "collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures,"4 there are no corresponding regulations or disciplinary sanctions imposed on dismissed jurors whose subsequent comments might alter the administration of justice. To allow such former jurors complete impunity in this regard is to ignore and condone at our peril the present untenable trend. The First Amendment’s guarantee of free speech must defer to a "fair and orderly administration of justice, it must not be allowed to divert a trial from its purpose of adjudicating controversies according to legal procedures based on evidence received only in open court."5


To be clear the authors are not advocating the imposition of blanket gag orders or unduly burdensome strictures upon the media which serve merely to restrict public access to the courts while utterly failing to advance the constitutionally mandated goal of a fair trial with a jury comprised of equally fair citizens. However, inasmuch as the concept of due process and the rights protected thereunder is predicated on the underlying belief that it is preferable to acquit the guilty rather than convict the innocent through a miscarriage of justice, the jury’s verdict must be rendered not on the basis of popular, media-generated opinion but rather upon the evidence presented in open court. It is to our collective shame that a dismissed juror’s intemperate ramblings are accorded the aura and stamp of legitimacy simply because of the misguided assumption that the former juror’s role has provided him/her with intimate, insider information denied the rest of us. This is all the more reprehensible when one considers that this badge of legitimacy is selectively accorded the inconsequential juror and not likewise extended to others indirectly (but perhaps no less knowledgeable) involved in the case such as qualified legal journalists and analysts.


For all the foregoing reasons, and to preclude further erosion and subversion of the criminal justice system, the authors now offer the following modest proposal. In those future cases where a juror is dismissed from a case prior to verdict, the dismissed member should not be fully discharged from his jury oath and obligations so that he has a continuing duty to maintain the integrity of the ongoing trial until a verdict is reached. The term "discharged" is not to be construed to mean that the formerly empanelled juror is to physically compelled to sit in the jury box until the trial’s conclusion but, instead, that the dismissed juror shall be bound by his initial juror’s oath until verdict. Obviously, the various jurisdictions would need to modify the standard juror’s oath to proscribe a dismissed juror from commenting on a pending criminal trial on which he previously sat, hardly an unsurmountable challenge. For the juror who chooses to breach such an oath and attempt to capitalize on his previous status by posturing for the media, sanctions should then issue. Any juror (or former juror) misconduct which may reflect upon, impinge, or bring the criminal trial into disrepute and discredit its findings must be recognized and penalized as an obstruction of justice. Our duty as lawyers and officers of the court compels us to take such a stand.

1 Sheppard v. Maxwell, 384 U.S. 333 (1966).

2 People v. Hobley, 182 Ill.2d. 404, 696 N.E.2d 313, 231 Ill.Dec. 321 (1998).

3 People v. Williams, 209 Ill. 2d. 227, 807 N.E.2d 448, 282 Ill.Dec. 824 (2004)

4 Sheppard, 384 U.S. 333 (1966).

5 Id.

Myrna G. Smith of the Law Office of M. Fuentes-Smith, in Bensenville, Illinois, received her B.A., from the University of Illinois-Chicago in 1986, her J.D. from the University of Iowa in 1990 and her Master’s of Laws from the John Marshall Law School in 1993. Her practice is concentrated in General Civil Litigation.

Robert Phillip Ward is principal of Robert Phillip Ward & Associates, and is actively engaged in the practice of law in Cook and DuPage Counties. He received his B.A., magna cum laude from Loyola University of Chicago in 1974, and his J.D. with honors from Chicago-Kent College of Law in 1977.

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