Maryland v. Baltimore Radio Show
338 U.S. 912

Annotate this Case

U.S. Supreme Court

Maryland v. Baltimore Radio Show, 338 U.S. 912 (1950)

Maryland v. Baltimore Radio Show

No. 300

Decided Jan. 9, 1950

338 U.S. 912

Opinion of MR. JUSTICE FRANKFURTER respecting the denial of the petition for writ of certiorari.

The Criminal Court of Baltimore City found the respondents guilty of contempt and imposed fines for broadcasting over local radio stations matter relating to one Eugene H. James at a time when he was in custody on a charge of murder. The facts upon which these findings were based are best narrated in the authoritative statement of the trial court:

"A little girl in one of the parks of Washington, D.C., had been murdered under horrible and tragic circumstances. Some ten days later, little Marsha Brill was dragged from her bicycle on one of the public thoroughfares of Baltimore City while in the company, or at least in the vicinity, of two of her playmates, and there stabbed to death. The impact of those two similar crimes upon the public mind was terrific. The people throughout the City were outraged. Not only were they outraged, but they were terrified. Certainly, and parent of a young child

Page 338 U. S. 913

must have felt a dread at the thought that his or her child might be killed while out upon the thoroughfares of Baltimore City. We think we are justified in drawing the conclusion that there was widespread and compelling public interest in the Brill murder. We think we are justified in assuming that many, many ears were on that evening in Baltimore, glued to their radios. And what happened? Mr. Connelly goes on the air and announces 'Stand by for a sensation.' Now, gentlemen, it is a fair and safe bet that whatever the Hooper rating of his station may be, no listener tuned to his station was going to turn his radio off when he heard that announcement. Mr. Connelly then proceeded to explain that James had been apprehended and that he had been charged with the Brill murder. That was all right. Nobody could quarrel with that, but then he goes on to say that James had confessed to this dastardly crime, that he has a long criminal record, that he went out to the scene with the officers and there reenacted the crime, and further, dug up from somewhere down in the leaves the knife that he had used to murder the little girl. Now, gentlemen, the Court has no difficulty in concluding that the broadcast was devastating. Anybody who heard it would never forget it. The question then before us is: did that broadcast, and others which were less damaging by the other stations, have a clear and present effect upon the administration of justice? The Court is bound to say that we do not believe that those broadcasts had any appreciable effect, to say nothing of constituting a clear and present danger, upon the decision of the Judges who tried the case. At the moment, we do not recall just who those Judges were, but Judges are supposed to be made of sterner stuff than to be influenced by irresponsible statements regarding pending

Page 338 U. S. 914

cases. They are trained to put aside inadmissible evidence, and, while we, of course, recognize our limitations, I think that most Judges, at least, are fairly able to disregard improper influences which may have reached their attention."

"Now, what about the jury? In the first place, what is this jury that we are talking about? They are twelve men, or, in most jurisdictions now, as in Maryland, men and women, who are picked from all walks of life and who have the responsibility of hearing cases and determining, in this State at least, not only the facts, but the law in the case. It may be unfortunate, perhaps, but certainly the fact is that the jury's verdict is final in most cases. There is the limited protection of the accused to apply for a new trial, but the Court of Appeals can not determine -- review and determine -- the propriety of the verdict reached by the jury either on the law or on the facts. Now this jury system is intended, and I think it works out that way, to bring to the trial of a case, as one element, the public opinion in the community. It is true that the jury is sworn to decide the case upon the evidence which it hears from the witness stand, but I think that no experienced lawyer would contend that a jury is not expected to bring to the consideration of its verdict the temperament of the community in which the members of the jury live. The jury is called upon to decide the facts as it hears them from the witness stand in the light of its past experience and, if you please, its past knowledge. True, attempts are made to get jurors who have not been touched with any previous influence in the case, but the safeguards that are provided for the realization of that ideal are all too limited."

"The Court knows no graver responsibility that devolves upon Counsel for the Defense in a serious

Page 338 U. S. 915

criminal case than the responsibility of advising his client whether to elect a jury trial or a court trial. Counsel must be able to sense public opinion, and he must evaluate the possible effect upon the jurors' minds of those things which they know or think they know. Doubtless all of us have seen cases tried in which we felt that the Counsel made errors of judgment as to how the particular cases ought to be tried. They are, however, doing the best that they can and, as I have indicated, theirs is a grave responsibility, because it is irrevocable. When a jury determines a case, that terminates the case, and if Counsel may have made an unfortunate choice, then his client suffers the consequences."

"Now, the Court can not help but feel that the broadcast referred to in these cases must have had an indelible effect upon the public mind, and that that effect was one that was bound to follow the members of the panel into the jury room. The Court hardly needs evidence in this factual situation to reach the conclusion that James' free choice to either a court trial, on the one hand, and a jury trial, on the other, has been clearly and definitely interfered with. However, we do have the testimony of his Counsel, Mr. Murphy (and we are bound to say that his testimony seemed to be reasonable and persuasive), who told the Court that he felt that he had no choice. He simply could not afford to subject his client to the risk of trying his case before a jury in a community where this extraneous and improper matter had been broadcast. He did, in fact, elect a court trial, but he did not have any alternative, according to his Counsel, and the Court is bound to say that we agree with his Counsel. The suggestion has been made here that the right to a jury trial could have been protected by the right of removal, and in this case

Page 338 U. S. 916

he did have the right, the Constitutional right, of removal. We assume that the Court would have sent the case to some other Circuit for trial, but Mr. Murphy says that there were some Counties in the State where he did not want to send his client for a jury trial. Not only that, but many parts of the State were blanketed by the same broadcast information that was available to the people of the City of Baltimore. Counsel said that at least one of the stations had a radius of seven hundred and fifty miles."

"The suggestion was made here also that the mischief could have been avoided by exercising the right of the defense to examine, on their voir dire, all prospective jurors and then inquiring as to whether or not they had heard these broadcasts. Well, now, it hardly seems necessary for the Court to say to men who are experienced in the trial of jury cases that, every time Defense Counsel asked a prospective juror whether he had heard a radio broadcast to the effect that his client has confessed to this crime or that he has been guilty of similar crimes, he would, by that act, be driving just one more nail into James' coffin. We think, therefore, that remedy was useless."

"Now, gentlemen, the Court must conclude that these broadcasts did constitute not merely a clear and present danger to the administration of justice, but an actual obstruction of the administration of justice, in that they deprived the defendant, James, of his Constitutional right to have an impartial jury trial."

The Court of Appeals of Maryland reversed these convictions. 67 A.2d 497. It did so by sustaining

"the chief contention of the appellants, that the power to punish for contempt is limited by the First and Fourteenth Amendments to the Federal Constitution, and that the facts in the case at bar cannot support the judgments

Page 338 U. S. 917

in the light of those amendments as authoritatively construed by the Supreme Court."

67 A.2d at p. 507. The decision of the Court of Appeals was thus summarized in the dissenting opinion of Judge Markell:

"This court holds that, under the decisions of the Supreme Court (Bridges v. California,314 U. S. 252; Pennekamp v. Florida,328 U. S. 331, and Craig v. Harney,331 U. S. 367) the judgments below violate the freedom of speech and of the press under the Fourteenth Amendment. If this is the correct interpretation of these decisions, of course they are conclusive."

67 A.2d at p. 518.

Thereupon, the State of Maryland asked this Court to issue a writ of certiorari to review the decision of its Court of Appeals. In its petition, Maryland urges that, while the Court of Appeals was, of course, bound by the decisions of this Court, that court misconceived our rulings, that the interpretation which it placed upon the Bridges, Pennekamp, and Craig cases was not correct, with the result that it erroneously reversed the judgments for contempt. Since the court below reached its conclusions on a misconception of federal law, so the State of Maryland argues, only this Court can release the Maryland court from its bondage of error.

This Court now declines to review the decision of the Maryland Court of Appeals. The sole significance of such denial of a petition for writ of certiorari need not be elucidated to those versed in the Court's procedures. It simply means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter "of sound judicial discretion." Rule 38, paragraph 5, Rules of the Supreme Court. A variety of considerations underlie denials of the writ, and as to the same petition different reasons may lead different Justices to the same result. This is especially true of petitions for review on writ of certiorari to a State court. Narrowly technical reasons

Page 338 U. S. 918

may lead to denials. Review may be sought too late; the judgment of the lower court may not be final; it may not be the judgment of a State court of last resort; the decision may be supportable as a matter of State law, not subject to review by this Court, even though the State court also passed on issues of federal law. A decision may satisfy all these technical requirements and yet may commend itself for review to fewer than four members of the Court. Pertinent considerations of judicial policy here come into play. A case may raise an important question, but the record may be cloudy. It may be desirable to have different aspects of an issue further illumined by the lower courts. Wise adjudication has its own time for ripening.

Since there are these conflicting and, to the uninformed, even confusing reasons for denying petitions for certiorari, it has been suggested from time to time that the Court indicate its reasons for denial. Practical considerations preclude. In order that the Court may be enabled to discharge its indispensable duties, Congress has placed the control of the Court's business, in effect, within the Court's discretion. During the last three terms, the Court disposed of 260, 217, 224 cases, respectively, on their merits. For the same three terms, the Court denied, respectively, 1,260, 1,105, 1,189 petitions calling for discretionary review. If the Court is to do its work, it would not be feasible to give reasons, however brief, for refusing to take these cases. The time that would be required is prohibitive, apart from the fact, as already indicated, that different reasons not infrequently move different members of the Court in concluding that a particular case at a particular time makes review undesirable. It becomes relevant here to note that failure to record a dissent from a denial of a petition for writ of certiorari in nowise implies that only the member of the Court who notes his dissent thought the petition should be granted.

Page 338 U. S. 919

Inasmuch, therefore, as all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court's views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated.

The one thing that can be said with certainty about the Court's denial of Maryland's petition in this case is that it does not remotely imply approval or disapproval of what was said by the Court of Appeals of Maryland. The issues canvassed in the opinions of that court, and which the State of Maryland has asked us to review, are of a nature which very readily lend themselves to misconstruction of the denial of this petition. The present instance is peculiarly one where the redundant becomes the necessary.

It becomes necessary to say that denial of this petition carries no support whatever for concluding that either the majority or the dissent in the court below correctly interpreted the scope of our decisions in Bridges v. California,314 U. S. 252; Pennekamp v. Florida,328 U. S. 331; and Craig v. Harney,331 U. S. 367. It does not carry any implication that either, or neither, opinion below correctly applied those decisions to the facts in the case at bar.

The issues considered by the Court of Appeals bear on some of the basic problems of a democratic society. Freedom of the press, properly conceived, is basic to our constitutional system. Safeguards for the fair administration of criminal justice are enshrined in our Bill of Rights. Respect for both of these indispensable elements of our constitutional system presents some of the most difficult and delicate problems for adjudication when they are before the Court for adjudication. It has taken centuries of struggle to evolve our system for bringing the

Page 338 U. S. 920

guilty to book, protecting the innocent, and maintaining the interests of society consonant with our democratic professions. One of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there, to the end that the public may judge whether our system of criminal justice is fair and right. On the other hand, our society has set apart court and jury as the tribunal for determining guilt or innocence on the basis of evidence adduced in court, so far as it is humanly possible. It would be the grossest perversion of all that Mr. Justice Holmes represents to suggest that it is also true of the thought behind a criminal charge " . . . that the best test of truth is the power of the thought to get itself accepted in the competition of the market." Abrams v. United States,250 U. S. 616, 250 U. S. 630. Proceedings for the determination of guilt or innocence in open court before a jury are not in competition with any other means for establishing the charge.

I have set forth in an appendix the course of recent English decisions dealing with situations in which publications were claimed to have injuriously affected the prosecutions for crime awaiting jury determination. (As to freedom of press in England, see Report of the Royal Commission on the Press, Cmd. No. 7700, and the debate thereon in the House of Commons, July 28, 1949. 467 H.C. Deb. (5th ser.) 2683-2794.) Reference is made to this body of experience merely for the purpose of indicating the kind of questions that would have to be faced were we called upon to pass on the limits that the Fourteenth Amendment places upon the power of States to safeguard the fair administration of criminal justice by jury trial from mutilation or distortion by extraneous influences. These are issues that this Court has not yet adjudicated. It is not to be supposed that by implication it means to adjudicate them by refusing to adjudicate.

Page 338 U. S. 921

|338 U.S. 912app|

APPENDIX TO OPINION OF FRANKFURTER, J.

English decisions concerning contempt of court for comments prejudicial to the fair administration of criminal justice.

A. CASES FINDING CONTEMPT.

1. King v. Tibbits and Windust, [1902] K.B. 77. The judgment of the court (Lord Alverstone, C.J., and Wills, Grantham, Kennedy and Ridley, JJ.) was read by Lord Alverstone, C.J. The case is adequately summarized in the headnote:

"During the course of the trial of two persons for felony, the reporter for a certain newspaper sent to the editor articles affecting the conduct and character of the persons under trial which would have been inadmissible in evidence against them. The editor published the articles, and, after the conviction and sentence of the two persons, he and the reporter were convicted on an indictment charging them with unlawfully attempting to pervert the course of justice by publishing the articles in question and with conspiring to do so."

"Held, that the conviction must be affirmed."

Each of the defendants was sentenced to six weeks' imprisonment on each count of the indictment, the sentences to run concurrently.

2. King v. Parke [1903] 2 K.B. 432 (Lord Alverstone, C.J., Wills and Channell, JJ.). Rule for contempt of court for publication of statements by a newspaper, before the accused's commitment for trial, that he had engaged in immoral conduct and had admitted a prior conviction and imprisonment for forgery. Answering the argument that publication before commitment was not a contempt, the court through Wills, J. said:

"A moment's consideration, it seems to us, is sufficient to dispose of such a proposition. The reason why the publication of articles like those with which we have to deal is treated as a contempt of Court is because their tendency and sometimes their object is to deprive the Court of the power of doing that which is the end for which it exists -- namely, to administer justice duly, impartially, and with reference solely to the facts judicially brought before it. Their tendency is to reduce the

Page 338 U. S. 922

Court which has to try the case to impotence so far as the effectual elimination of prejudice and prepossession is concerned."

Pp. 436-437.

The rule was made absolute, and a fine of

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