Lesson 7: Due Process Rights Middle

 To what extent does the freedom of the press get in the way of a defendant’s right to a fair trial?

 Probably no event in recent history garnered more attention than the trial of O.J. Simpson, the former professional football and movie actor. An important related issue in that case, and all others that receive extraordinary amounts of media coverage, is to what extent is a fair trial possible. The U.S. Supreme Court considered this issue in Sheppard v. Maxwell (1966).

Sheppard was a prominent Cleveland, Ohio physician whose wife was beaten to death one evening in their bedroom. Sheppard claimed the perpetrator was an intruder who broke into their home and knocked him unconscious. According to Sheppard’s story, after he awoke he found his wife dead. In reporting the story, the Cleveland newspapers largely accused Sheppard of the murder. Further, the media charged that Sheppard was using his political and press connections to avoid having to answer for the crime. Eventually, Sheppard was arrested and convicted of murder.

Sheppard appealed the case, charging that his right to a fair trial was compromised by the prejudicial nature of the pre-trial publicity. Twelve years after his conviction, the U.S. Supreme Court set aside the verdict, holding that the pre-trial publicity deprived Sheppard of his right to a fair trial.

Students will be able to:

• Examine the role played by the press in the trial of Sam Sheppard.
• Analyze the decision reached in Sheppard v. Maxwell (1966) and its implications on the rights of freedom of the press and fair trial.
• Discuss the extent to which the freedom of the press and the right to a fair trial can co-exist.

Handout 7A "At the Trial"

Handout 7B "In the Newspapers"

Handout 7C "Sheppard v. Maxwell (1966) I"

Handout 7D "Sheppard v. Maxwell (1966) II"

Handout 7E "The Sheppard Case: An Update"

2 class periods

THIS IS A TWO DAY ACTIVITY, THE FIRST DAY OF WHICH IS DEVOTED TO ASSIGNING ROLES, DISCUSSING RESPONSIBILITIES, DISTRIBUTING MATERIALS AND MEETING WITH THE GROUPS INDIVIDUALLY.

DAY ONE

Ask for seven volunteers to play the following roles in a court room trial to be enacted in front of the class: Judge, District Attorney, Defense Attorney, Mabel Smith, Bunny Lynn, Paul Blanchard and Mayor Tom Houk. (Although the facts in the role-play are generally the same as that in trial of Sam Sheppard, the names have been changed so that students will not be able to recognize the case beforehand.) Divide the remainder of the class into two equal size "juries," A and B.

Meet with the seven actors in a place where the rest of the class cannot overhear you. Distribute Handout 7.A, "At the Trial" to the actors ONLY. Explain that you would like them to rehearse their parts at home tonight, for the role-play to be enacted in class tomorrow. Urge them to do the best they can to memorize their lines and deliver them with the appropriate emotion.

Meet with Jury A in a place where the other students can’t overhear your instructions. Tell them they will serve as a jury in a murder trial. Based on the evidence presented to them, they will have to render a verdict of guilty or not guilty. Ask them to elect a foreperson, who will lead the deliberations and prepare, in writing to hand to the judge, either the verdict or a tally of the guilty/not guilty votes. DO NOT DISTRIBUTE Handout 7.B to Jury A at this time.

Meet with Jury B in a place where the other students can’t overhear your instructions. Tell them they will serve as a jury in a murder trial. Based on the evidence presented to them, they will have to render a verdict of guilty or not guilty. Ask them to elect a foreperson, who will lead the deliberations and prepare, in writing to hand to the judge, either the verdict or a tally of the guilty/not guilty votes. Explain to this group that before they sit in judgement you would like them to read, for homework, something about the case that they cannot show any of the actors or members of Jury A. Distribute Handout 7.B, "In the Newspapers," to Jury B.

DAY TWO

1) Instruct the actors to take their places (Jury A will sit together on one side of the room, Jury B on the opposite side of the room, the judge at the teacher’s desk, and the witness stand will be a chair to the right of the teacher’s desk.)

2) Instruct the actors to begin the play.

3) At the end of the role-play, have the two juries meet separately to deliberate for approximately 10 minutes. The juries should ideally produce a verdict. If this is not possible they should provide a tally of votes for either a guilty or not guilty verdict, which the foreperson will give to the judge.

4) After approximately 10 minutes, ask the juries to take their places. Ask each foreperson to provide the judge with either the verdict or tally of votes.

5) Then ask the different groups as identified below to explain/answer the following:

• To Jury A: Did you arrive at a verdict? If not, how did the majority of the jury vote? Explain the reasons for your verdict/vote?
• To Jury B: Did you arrive at a verdict? If not, how did the majority of the jury vote? Explain the reasons for your verdict/vote?
• To the entire class: How were the reasons for verdicts similar and different between the two juries

Distribute Handout 7B, "In the Newspapers," to all class members who haven’t seen it before (Jury A and actors).

Ask the class, as part of the whole-class discussion, to explain their answers to the following:

• What do we learn about the case from reading these editorials?
• To what extent did reading these editorials influence Jury B’s verdict?
• To what extent should newspapers be allowed to print such articles prior to a trial?

Tell the class that they were participating in a modified recreation of the famous murder trial of Sam Sheppard that took place in 1954. Explain that Sheppard believed that he deserved a new trial, because articles similar to the ones they read denied him the right to a fair trial. Ask the class to what extent do they agree that Sheppard deserved a new trial?

• Distribute Handout 7C "Sheppard v. Maxwell (1966) I." As part of the whole class discussion ask students to answer/explain the following: 

• What did the U.S. Supreme Court have to say about the Sheppard case?
• How did they explain their decision?
• To what extent do you agree with the decision rendered in this case? To what extent do you disagree?
• Suggest steps that a judge can take to prevent pre-trial publicity from preventing a fair trial?

Distribute Handout 7D "Sheppard v. Maxwell (1966) II." As part of the whole class discussion ask students to answer/explain the following:

• Discuss the steps that the Supreme Court suggested that could have been taken to protect a defendant’s right to a fair trial from being threatened by the freedom of the press?
• What do you see as the advantages/disadvantages of taking each of these steps to the cause of justice?
• Do you think we should allow judges to fine the news media for printing prejudicial articles prior to a trial, as is done in England?
• Which right, freedom of the press or fair trial, is more important?

Further Enrichment:

Based on multiple intelligence theory.

Linguistic: Present students with a hypothetical or real case (O.J. Simpson), involving a great deal of pretrial publicity. Have students imagine themselves in the role of a judge and instruct them to write a decision on whether the case should continue, should be delayed, should be given a change of location (venue) or a mistrial should be declared.

Logical/Mathematical: Students should concentrate on a current legal case that has gained media attention and collect articles about that case. Students should then place the articles in one of three categories; would not prejudice a jury, might prejudice a jury, would definitely prejudice a jury. Students should explain why they placed each article in the category chosen.

Kinesthetic: Students should engage in a simulation of jury selection for the Sheppard case. Have students discuss the types of questions they would ask and the kind of jurors that would be desirable for the prosecution and the kind of jurors that would be desirable for the defense.

Spatial: Have students design a collage of newspaper headlines for a recent trial with a great deal of pre-trial publicity. Students should then discuss how a jury would be prejudiced by these headlines.

Intrapersonal: Have students write a letter to a friend expressing how they would feel if they were involved in a case in which the press coverage had hurt their ability to get a fair trial.

Interpersonal: Divide the class into groups of equal size. Assign a role to each member of the group such as convener, facilitator, reflector, encourager or summarizer. Select a recent trial and discuss whether pre-trial publicity would not permit a fair trial.

Musical: Divide students into three groups. The first group should compose a chant about freedom of speech and then recite the chant three times. The second group should compose a chant about a defendant's right to privacy and then recite the chant three times. The third group should compose a chant about the conflict between freedom of speech and the right to privacy and recite the chant three times. Students should then discuss the chants.

Focus on a current case being reported in the media, ask students to either write editorials or give a "television like commentary" on the issue, "Can Freedom of the Press and the Right to a Fair Trial Co-Exist?"

Invite a judge and or member of the news media to class. Ask students to conduct a press conference related to the issue "Can Freedom of the Press and the Right to a Fair Trial Co-Exist?" Ask students to take the role of newspaper reporters and analysts. Have them report on the press conference describing what took place.

Have students collect examples of pre-trial publicity from local newspapers. Ask students to determine whether or not the appearance of particular articles would or would not prevent a defendant from receiving a fair trial.

At the Trial

July 4, 1954, PROMINENT DOCTOR’S WIFE SLAIN.

Marilyn Blanchard, wife of Paul Blanchard, was beaten to death last night in the upstairs bedroom of their home in Bay Village. Mr. Blanchard told the police that he had been dozing in his living room when he was awakened by his wife’s screams. He ran upstairs and claims to have found someone in their bedroom. At that moment, he says, the intruder knocked him unconscious for a few minutes. When Blanchard awoke, he maintains, he found his wife was dead. Among the first people informed of Marilyn’s death was Mayor Houk of Bay Village, who immediately went to the Blanchard residence to comfort the doctor. Shortly thereafter, Blanchard, in shock, was taken to the hospital and placed under heavy sedation.

July 7, 1954, BLANCHARD REFUSES TO RESPOND TO POLICE QUESTIONING.

Claiming that he was still shaken by his wife’s murder, Paul Blanchard again refused to talk to the police today. One man Blanchard did speak to today was Bailey F. Larson, notorious lawyer for mobsters in this area.

July 15, 1954, WHAT KIND OF MAN IS PAUL BLANCHARD?

Apparently Paul Blanchard, most recently playing the role of the grieving husband, led a pretty active life. Interviews with reliable sources revealed that Blanchard had had sexual relations with numerous women. In fact, it was learned that a female convict has claimed that Blanchard is the father of their illegitimate child. Marilyn Blanchard is alleged to have described her husband as a "Jekyll and Hyde".

July 20, 1954, SOMEBODY IS GETTING AWAY WITH MURDER.

Is it possible that the Blanchard case is going nowhere fast because the good doctor has too many friends in high places? Could it be that Paul Blanchard has so much influence with the Mayor, his close friend, that some kind of deal has been struck? Isn’t it strange that no inquest (medical exam to determine the cause of death) has been ordered? Could it be that such a brutal beating will be termed death by natural causes? It is quite obvious that Blanchard has made no effort to cooperate with the police. Let’s get the ball rolling ... someone is guilty of the crime ...perhaps he is right under the noses of the police.

July 28, 1954, WHY ISN’T PAUL BLANCHARD IN JAIL?

Now proven to be a liar under oath ..., still free to go about his business ..., shielded by his family ..., protected by a smart lawyer ..., carrying a gun part of the time ..., left free to do as he wishes ... This is Paul Blanchard.

July 30, 1954, FINALLY BLANCHARD JAILED!

At long last, Paul Blanchard was arrested this evening, charged with the murder of his wife.

Nearly 12 years after his trial, the U.S. Supreme Court set aside the conviction of Sam Sheppard. The Court pointed out the impossibility of securing a fair trial for a defendant when there has been so much publicity attacking the defendant and the publicity has reached a significant number of people in the community. Specifically, the court said:

"Had the judge, the other officers of the court and the police placed the interest of justice first, the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom -- not pieced together by listening to gossip around town.

Due process requires that the accused receive a trial by an impartial jury, free from outside influences. Given the pervasiveness of modern communications and the difficulty of erasing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused."

The judge has the power to postpone the trial until he thinks the publicity has lost its impact upon potential jurors. He has the power to grant permission to move the trial to another place, if he feels it unlikely that, even after allowing a reasonable time to pass, a fair trial would still be unlikely in a specific place.

If, during the course of the trial the judge becomes convinced that the pre-trial publicity has made a fair trial impossible, he has the power to declare a mistrial. The entire trial then must start anew at some later date.

If a judge refuses to take any of the above actions, an appellate court may reverse the conviction if it feels that the defendant has been deprived of a fair trial. In England, the courts have fined the news media and their employees for contempt of court for publication of pre-trial information. Contempt is any act that is calculated to embarrass, hinder or obstruct the court in its administration of justice.

August 28, 1998 Man Sticks by Sheppard Murder Story

Filed at 7:16 a.m. EDT By The Associated Press LANCASTER, Ohio (AP) -- An inmate who claims to know who killed Dr. Sam Sheppard's wife said he wouldn't benefit by making up stories about the case that inspired ``The Fugitive'' television series and movie. ``I never requested a dime, a day off my sentence, nothing,'' Robert Parks said Thursday in the Southeastern Correctional Institution, about 30 miles southeast of Columbus. ``I'd have to be a damn fool not to tell the truth,'' he said. He repeated his claim that Richard Eberling, who died July 25, confessed to killing Marilyn Sheppard -- an account most people involved with the case dispute. Parks, in a videotaped discussion with an attorney and an interview Thursday, said authorities asked him to find out what he could about Mrs. Sheppard's death because of his record of credibility as an informant. He said he befriended Eberling while the two were at the Orient Correctional Institution near Columbus, and Eberling confessed to going to the Sheppard home in suburban Cleveland in 1954 to burglarize it and rape Mrs. Sheppard. When she bit him and cried for help, he killed her, Parks said. In March, Parks said, he told Cuyahoga County prosecutors about the alleged confession. But the warden at Orient said authorities weren't interested. ``They want to know that Sam had something to do with it,'' Parks said. So, Parks said, he suggested that Eberling write a false confession that said Sam Sheppard offered Eberling $1,500 for the killing. Alan Lazaroff, the warden at Orient, said Parks was not told to become an informant or instructed about particular information to gather. David Zimmerman, an assistant Cuyahoga County prosecutor, also said Parks was not solicited to get information. Prosecutors have said they won't reopen the case because Parks' credibility is questionable. David Doughten, Eberling's attorney, also didn't believe the story. ``If Richard did this, he would never confess to somebody,'' Doughten said. Eberling, who died in a prison hospital while serving a life term for another murder, denied killing Mrs. Sheppard. Sam Sheppard claimed a ``bushy-haired intruder'' killed his wife, but he was found guilty of the crime and served 10 years in prison before he was acquitted at a retrial. He died in 1970. The couple's son, Sam Reese Sheppard, is suing the state for wrongful imprisonment of his father. He says DNA and other evidence point to Eberling as the culprit. Parks, 37, of Cleveland, has spent much of the last 15 years in prison, most recently for forgery and violating parole on a robbery charge. His claim was first reported after he gave a videotaped interview to Terry Gilbert, an attorney for Sam Reese Sheppard. Thursday was his first opportunity to speak to reporters since then because he had been in isolation for smoking marijuana with Eberling on June 2, he said. Parks declined Thursday to discuss details of the murder, saying he could be a witness in the younger Sheppard's case.

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