COM350: Communication Law

14 November 2014
Morgan Tondreault, council for the defendant Dr. Sam Sheppard
Sheppard v. Maxwell
The media's the most powerful entity on earth. They have the power to
make the innocent guilty and to make the guilty innocent, and that's power. Because
they control the minds of the masses. This quote by Malcolm X exemplifies the case
at hand. In 1954, the media used its power to make the innocent guilty when they
forever changed the life of Dr. Sam Sheppard by influencing the jury in their decision
of whether or not Dr. Sheppard murdered his wife, Marilyn Sheppard. Twelve years
later in 1966, Dr. Sheppard appealed the courts ruling, blaming the massive
sensational media coverage prevented him from receiving a fair trial (Middleton and
Lee, 2013, p. 468). The Supreme Court believes the defendant is innocent because of
the excessive level of involvement and influence the media had in the case of his
wifes murder as well as the lack of control exerted by the judge in the courtroom to
lessen the impact of prejudicial publication.
During the time of his trial, Dr. Sheppard was subjugated to extreme
prejudice by the media due to the fact local papers published articles like Why Isnt
Sam Sheppard in Jail? and using phrases like [hes] getting away with murder
(Middleton &and Lee, 2013, p. 468). These highly partisan publications influenced
the public, and therefore the jury. Due to it being a highly publicized case, jurors
whether they wanted to be or not, were exposed to harsh criticism of Dr. Sheppard
on the medias part, and there was very little, if any, discussion of his possible
innocence. Due to the seriousness of these cases, criminal law requires that

impartial jurors arrive at a verdict of guilty or not guilty based only on the
evidence permitted under the rules of the court (Middleton & Lee, p. 469). However,
it can be difficult to distinguish between facts broached in court and libelous
statements made by reporters when the coverage is as heavy as it was for this case.
Whether or not jury members will admit to being influenced by the information they
intake outside of the courtroom, it is clear that extreme reporting tactics have an
effect on jurors and their decisions.
In addition to the style of reporting that ensued during the trial, the
placement of reporters in the courtroom greatly impacted the courtroom
atmosphere as well as the relationship between Dr. Sheppard and his lawyer.
According to Middleton and Lee (2013), the judge seated newspaper reporters so
close to Sheppard and his attorney that the pair had to leave the courtroom to talk
without being heard. This was not only an invasion of privacy, but it also dictated if
and how the two could communicate whilst in the courtroom. Knowing the
proximity of reporters and their undoubtedly malicious intent prevented proper
discussion from occurring between the lawyer and his client due to the fear of their
words being twisted in the next days paper or news broadcast. The placement of
journalists was not the only problem with their presence in the court room; the
amount of reporters and photographers allowed in the courtroom set a loud and
often times incoherent atmosphere for the jurors, witnesses, lawyers, and everyone
else who took part in the trial.
Both these factors had great influence on the jury, and instead of taking
action to protect the jury as well as the clients involved in the case, the judge sat

back and allowed the trial to proceed as it did. There are many ways to prevent or
remedy prejudicial publicity, which was the major influencer when it came to the
jury making their decision. A change of venue, which is defined by Middleton and
Lee, 2013, as a shift in the location of the trial, would have been a simple solution
the intense and vicious media coverage that occurred in Cleveland (p. 477). When
looking at past precedence, in the case of Rideau v. Louisiana, the Supreme Court
held that the trial courts denial of a change of venue for Wilbert Rideau violated his
constitutional right to a fair and impartial trial (Middleton and Lee, 2013, p. 477).
Rideau, who was accused of the equally heinous crime of robbery, kidnapping, and
murder, won his appeal due to the fact his confession was televised three times in
the county of his prosecution, which left a negative impression on the jurors
deciding his case. The grounds on which Rideau set his appeal were far less severe
than the predicament the media presented Sheppard with because reporters in The
State of Ohio v. Sheppard case were heavily involved in both the pre-trial
proceedings as well as the trial itself with its prejudicial publicity. Similar to change
of venue is change of venire, which would change the jury pool rather than the
location of the trial (Middleton and Lee, 2013, p. 478). The introduction of jurors
less familiar with the case due to their geographical location would have offered Dr.
Sheppard a fairer trial because the influence of the media would have been less
intense.
Another viable option for remedying prejudicial publicity aside from change
of venue could have been continuance, which is the legal term for postponement
(Middleton and Lee, 2013, p. 478). Continuance allows time for media coverage to

dissipate before a trial commences. If the judge had decided to postpone the trial,
the words of sensationalist journalists would have had less of an impact on those
involved in the court case, especially the witnesses and the jurors. In the case Irvin v.
Dowd, the Court noted in reversing the conviction of Leslie Irvin for six murders that
the trial court had denied eight motions for a continuance (Middleton and Lee, 2013,
p. 479). Continuance allows for jurors to forget the bulk of the information they
intake from the media during the immediate events of a crime, a time in which most
information is dramatized in order to engage the publics attention.
Due to the substantial amount of pre-trial coverage involved in this case, voir
dire could have been used in order to select jurors who exhibited less bias towards
the defendant. Voir dire is the term used for the process of questioning potential
jurors before selecting a jury for a trial Middleton and Lee, 2013, p. 479). As stated
earlier, jury members are expected to decide a case based on facts presented in the
courtroom and nothing else, such as media coverage. It is questionable as to
whether or not the voir dire performed before Dr. Sheppards trial was extensive
enough to create an unbiased jury, but when considering the intensity of pre-trial
press coverage, it is hard to imagine that every juror that entered the court for that
case was entering the courtroom with a fully open mind.
One final pre-trial action that could have been implemented to protect all
those involved in the trial is judicial admonition, which in the words of Middleton
and Lee, 2013, is when a judge warns jurors about their duties or conduct, such as
instructing jurors to ignore prejudicial publicity when deciding on their verdict (p.
482). By blinding jury members from media coverage, it gives them the freedom to

decide the defendants fate based on the facts presented in the courtroom, and only
the facts presented in the courtroom. This procedure would have been extremely
effective in this case because of the nature of which the media presented the
information regarding the investigation of the murder as well as the proceedings of
the trial. While Dr. Sheppards lawyer requested such action during the time of the
trial, the judge failed to instruct or admonish jurors to avoid the media,
henceforth not allowing Dr. Sheppard to a fair trial (Middleton and Lee, 2013, p.
482).
If the court could not seem to comply with the requests of the defendant in
regards to protecting the jury from prejudicial publication, it should have imposed a
certain amount of restraint on the media. While prior restraints are very rarely put
in place do to their unconstitutional nature, Chief Justice Warren Burger determined
that there were three factors when considering the constitutionality of a prior
restraint on the media in the court. According to Middleton and Lee, 2013, these
factors were:
1. The nature and extent of pretrial coverage
2. Whether other measures would likely mitigate the effects of unrestrained
pretrial publicity
3. The effectiveness of a restrictive order in diminishing the effect of
prejudicial publicity (p. 499).
When applying these factors to the case at hand, it is clear to see that a prior
restraint should have been placed on reporters. The nature and extent of pretrial
coverage was invasive and biased against the defendant, as described earlier in this

legal brief. While other measures have also been discussed in this legal brief, it is
clear that the judge did not care enough to institute these remedies to prejudicial
publishing; therefore prior restraint could have been exercised. Lastly, it can easily
be argued that a prior restraint would have been effective in protecting the jurors
from harsh and assuming media and it would have allowed the jury to make a
decision based solely on the facts of the case.
Plenty of bad decisions were made in the case against Dr. Sheppard, but the
worst one was sentencing him to prison after he did not receive a fair trial by an
impartial jury. His basic rights were stripped from him when he had yet to be
proven guilty, and because of this injustice, he spent twelve years in jail for a crime
in which it was never proved he committed. The cruel and invasive nature of the
media combined with the lack of control and respect exerted by the judge lead to an
unfair trial for a grievous crime. Murder should be taken seriously and it should be
treated with the greatest care, and that did not happen in The State of Ohio v.
Sheppard. Sentencing someone to life in prison, or worse, capital punishment,
should not be done lightly, and it should be done without the influence of the media.
Due to the lack of respect for the defendant and his right to a fair trial, Dr. Sheppard
deserves the right to appeal his ruling because he should not have been punished for
a crime he was never truly proven guilty of committing.

References
Middleton, K.R., & Lee, W.E. (2013). The law of public communication. Boston, MA:
Pearson.