Unfortunately, too often these efforts receive aid from prosecuting officers whose sense of public duty is impaired or destroyed by the itch for reputation and a cheap and tawdry type of forensic triumph. Despicable enough is the district attorney who grants interviews to newspaper reporters during the progress of a criminal trial, and who makes daily statements to them of what he intends to prove on the morrow unless prevented by the law as expounded by the trial judge. A careful study of the progress of more than one great criminal trial in New York City would show how illegal and improper matter prejudicial to the person accused of crime has been ruled out by the trial court, only to have the precise information spread about in thousands upon thousands of copies of sensational newspapers, with a reasonable certainty of their scare headlines, at least, being read by some of the jury.
The pernicious influence of these journals upon the courts of justice in criminal trials (and not merely in the comparatively small number in which they are themselves the instigators of the criminal proceedings) is that they often make fair play an impossibility. The days and weeks that are now not infrequently given to selecting jurors in important criminal cases are spent in large measure by counsel in examining talesmen in an endeavor to find, if possible, twelve men in whose minds the accused has not been already “tried by newspaper” and condemned or acquitted. When the public feeling in a community is such that it will be impossible for a party to an action to obtain an unprejudiced jury, a change of venue is allowed to some other county where the state of the public mind is more judicial. It is a significant fact that nearly all applications for such change in the place of trial from New York City have been for many years based mainly upon complaints of the inflammatory zeal of the sensational press.
The courts in Massachusetts (where judges are not elected by the people, but are appointed by the governor) have been very prompt in dealing in a very wholesome and summary way with editors of papers publishing matter calculated to affect improperly the fairness of jury trials. Whether it be from better principles or an inspiring fear of jail, the courts of public justice in that state receive little interference from unwarranted newspaper stories. Some of the cases in which summary punishment has been meted out from the bench to Massachusetts editors will impress New York readers rather curiously. For example, just before the trial of a case involving the amount of compensation the owner of land should receive for his land taken for a public purpose, a newspaper in Worcester informed its readers that “the town offered Loring [the plaintiff] $80 at the time of the taking, but he demanded $250, and not getting it, went to law.” Another paper published substantially the same statement, and both were summarily punished by fine, the court holding that these articles were calculated to obstruct the course of justice, and that they constituted contempt of court. During the trial of a criminal prosecution in Boston a few years ago against a railway engineer for manslaughter in wrecking his train, the editor of the _Boston Traveler_ intimated editorially that the railway company was trying to put the blame on the engineer as a scapegoat, and that the result of the trial would probably be in his favor. The editor was sentenced to jail for this publication. The foregoing are undoubtedly extreme cases, and are chosen simply to show the extent to which some American courts will go in punishing newspaper contempts. All of these decisions were taken on appeal to the highest court of the state and were there affirmed. The California courts have been equally vigorous in several cases of recent years, notably in connection with publications made during the celebrated Durant murder trial in San Francisco.