Leviton v. United States/Opinion of the Court
This seems to me to be another instance where it becomes helpful to an understanding of the exercise of the Court's discretionary jurisdiction in granting or denying certiorari, to indicate the kind of question that did not commend itself to at least four Justices as appropriate for review by this Court. Several questions were raised by the petition for certiorari. It suffices to indicate the nature of only one, which can be most helpfully conveyed by giving the views of the Court of Appeals and of the dissenting opinion. 2 Cir., 193 F.2d 848.

Speaking for that court, Judge Clark, with the concurrence of Chief Judge Swan, stated the matter thus:

'The third incident involved a newspaper article in the New      York Times, December 14, 1949. This account falsely reported      that the indictment covered some $9,500 worth of barbed wire;      that Field, a Customs Bureau visa clerk who had received the      eleventh and last fraudulent export declaration in this case      and who was an important witness for the government, had been      offered a $200 bribe by Leviton to suppress this evidence      (Leviton had in fact purchased $44 worth of clothing as a      gift for Field); and that the defendants were part of a much      larger 'ring.' A copy of the newspaper containing the article      was found in the jury room. We do not think, however, that such a report,      erroneous as it was, made a fair trial impossible. The judge      gave very explicit instructions that the contents of the      article were to be disregarded and went on to point out how      the offenses set forth in the indictment differed from those      described in the article. Trial by newspaper may be      unfortunate, but it is not new and, unless the court accepts      the standard judicial hypothesis that cautioning instructions      are effective, criminal trials in the large metropolitan      centers may well prove impossible. United States v. Keegan,      supra, 2 Cir., 141 F.2d (248) at page 258. Citations of the      reporting media for contempt by publication are rare and the      Supreme Court has stated that their activities in reporting      criminal trials do not deprive the accused of a fair trial      unless there is a 'clear and present danger' that such will      result. See Ex parte Craig, 2 Cir., 282 F. 138, affirmed 263      U.S. 255, 44 S.Ct. 103, 68 L.Ed. 293; Baltimore Radio Show v.      State, Md., 67 A.2d 497, certiorari denied, with opinion by      Frankfurter, J., Maryland v. Baltimore Radio Show, 338 U.S.      912, 70 S.Ct. 252, 94 L.Ed. 562; Note, 59 Yale L.J. 534. Such      was not the showing here.' Id., at page 857.

Judge Frank in dissent took this view of the question:

'On the second day of trial, the prosecutor held a 'press conference' after court. He told the newspaper reporters of matters which (so he later advised the court) they promised not to print. In the next morning's New York Times, there appeared a story, told with typical journalistic vigor, about 'export racketeers' who 'poured $500,000 of commodities into European and South African black markets.' The significance of the newspaper story was this: It professed to recount the testimony of a witness that Leviton, over the phone, had offered him a $200 bribe to withdraw from customs files a fraudulent declaration. The article detailed the attempted bribe, the meeting place for its completion and the substitution of a $44 gift of shirts for the originally-offered $200. This most damaging story of the $200 bribe is wholly unsupported by the evidence. Accordingly, had the prosecutor written letters to the jurors retelling this story, of course we would reverse. He did the equivalent. For it is outrightly conceded that the Times reporter learned this tale from the prosecutor, and that four copies of the newspaper article were found in the jury-room on the third day of the trial.

'My colleagues admit that 'trial by newspaper' is      unfortunate. But they dismiss it as an unavoidable curse of      metropolitan living (like, I suppose, crowded subways). They      rely on the old 'ritualistic admonition' to purge the record.      The futility of that sort of exorcism is notorious. As I have      elsewhere observed, it is like the Mark Twain story of the      little boy who was told to stand in a corner and not to think      of a white elephant. Justice Jackson, in his concurring      opinion in Krulewitch v. United States, 336 U.S. 440, 453, 69      S.Ct. 716, 723, 93 L.Ed. 790, said that, 'The naive      assumption that prejudicial effects can be overcome by      instructions to the jury * * * all practicing lawyers know to      be unmitigated fiction. See Skidmore v. Baltimore & Ohio R.      Co., 2 Cir., 167 F.2d 54.' Cf. People v. Carborano, 301 N.Y.      39, 42-43, 92 N.E.2d 871; People v. Robinson, 273 N.Y. 438,      445-446, 8 N.E.2d 25.

'I think the technique particularly objectionable and      ineffective here for two reasons. (1) The story was a direct      result of confidential disclosures by a government officer,      the prosecutor, of not-in-the-record matters, and was not      merely the accidental garbling of a confused reporter. (2)      The article was no statement of opinion or editorial, but a      professed account of court-room evidence calculated to confuse and mislead juror-readers. In such      cases, courts recognize that, for all practical purposes,      defendants are deprived of their constitutional rights to      confront witnesses, cross-examine and contradict them, and to      object to evidence as irrelevant or incompetent-in short all      the elements of a fair trial. Last year, two Supreme Court      Justices advocated in a concurring opinion the reversal of a      conviction upon the ground that an officer of the court had      released to the local press information about confessions of      the defendants never introduced at the trial. Shepherd v.      Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740.

'I cannot see the relevance here of cases, to which my      colleagues refer, applying the 'clear and present danger'      test to contempts by newspapers for articles relative to      pending trials (incidentally, all non-jury trials). That test      has been employed only when the newspaper itself was      threatened with criminal punishment for the publication. It      certainly should not be carried over to a case like this one      where convicted defendants may well have been prejudiced by a      newspaper article. In such a case, the 'clear and present      danger' test would bar reversals for all but the most      flagrantly scurrilous or deceptive newspaper attacks. Courts,      in reversing convictions for trial-by-newspaper, have always      recognized that printed matter may be prejudicial enough to      require a new trial without evidencing so depraved an      attitude of the publisher as to support a contempt citation.      United States v. Ogden, D.C.E.D.Pa., 105 F. 371, 374.

'In the instant case, the newspaper and reporter, if cited      for contempt, would doubtless urge as a defense that the      story came from the prosecutor, an 'officer of the court.'      That very fact, however, underscores the gravity of the error      here.' Id., at pages 865-866. 

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