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December 1, 1975


Case No. 40445: Appeal from the District Court for Lincoln County: Hugh Stuart, Judge. Case No. 40471: Original action.

White, C. J., Spencer, Boslaugh, McCown, Newton, Clinton, and Brodkey, JJ. Clinton, J., Dissenting. White, C. J., joins in this Dissent. Spencer, J., Concurring. Newton, J., joins in this concurrence.

The opinion of the court was delivered by: Per Curiam

At issue in these cases is the resolution of an apparent conflict between the guarantees of the First and Sixth Amendments to the Constitution of the United States. This court is called upon to draw an accommmodation between these two "preferred" amendments which will preserve the right to a fair trial without abridging freedom of the press. The issue is laid before us in case No. 40471, by the relators, television, newspaper, and other media organizations and personnel, who seek through an original action a writ of mandamus which will compel the respondent District Court Judge for Lincoln County to vacate a restrictive order relating to the publication of pretrial publicity in State v. Simants, case No. 40445.

On October 18, 1975, six members of a family were found dead of gunshot wounds in their home at Sutherland, Nebraska. On October 19, 1975, Erwin Simants was charged with six counts of murder in the first degree, arraigned, and counsel was appointed for him. A preliminary hearing was set for October 22, 1975. On October 21, 1975, the prosecuting attorney filed a motion for a restrictive order with the county court, requesting the court to restrict publication of testimony to be presented at the preliminary hearing. A hearing on the motion was held that same evening. Attorneys representing the State, Simants, and the media were present. Attorney for the defendant advised the court that Simants consented to the State's motion to restrict publication of testimony from the preliminary hearing and further made an oral motion requesting that the restrictive order be broadened to close the preliminary hearing to the public and press. After arguments by counsel, the court found the State's motion should be sustained.

On October 22, 1975, prior to the preliminary hearing, the county court entered a restrictive order. The order precluded all parties involved in the preliminary hearing as well as the "news media" from releasing "for public dissemination in any form or manner whatsoever any testimony given or evidence adduced during the preliminary hearing." The order also contained additional restrictive provisions apart from the preliminary hearing. Finally, the court denied Simants' motion requesting a closed hearing.

On October 22, 1975, the preliminary hearing was held on an amended complaint which charged six counts of murder in the first degree and further alleged that the murders were committed in the perpetration of or attempt to perpetrate one or more sexual assaults. After testimony from several witnesses and the introduction of other evidence, Simants was bound over to District Court to stand trial.

On October 23, 1975, attorneys representing the persons who are now the relators in the mandamus action, case No. 40471, filed an application requesting the right to be heard on a challenge to the constitutionality of the restrictive order entered by the county court. The District Court granted petitioners' motion to intervene. On that same day, October 23, 1975, Simants filed a motion for a continuation of the county court's restrictive order with respect to pretrial publicity. On October 27, 1975, the District Court acted on defendant's motion. It terminated the county court's order and imposed its own restrictions on dissemination of pretrial publicity emanating from the case. The District Court adopted, with some clarifications, the standards set out in The Nebraska Bar-Press Guidelines for Disclosing and Reporting of Information Relating to Imminent or Pending Criminal Litigation. These standards, together with the accompanying clarifications, precluded the media from reporting on most of the testimony and some other evidence presented at the preliminary hearing.

Relators sought relief in this court from the October 27, 1975, restrictive order imposed by the District Court via two procedural routes. On October 31, 1975, relators instituted a section 25-1912, R. R. S. 1943, appeal from the District Court order and at the same time petitioned this court for leave to file an original action in the nature of a writ of mandamus requesting this court to vacate the October 27, 1975, restrictive order.

While relators' appeal and request to docket an original action in this court were pending, they petitioned Mr. Justice Blackmun of the United States Supreme Court, asking him as Circuit Justice to stay the October 27, 1975, District Court order under Title 28 U. S. C., sections 2101(f) and 1257(3). Thereafter, this court on November 10, 1975, issued a per curiam memorandum in which we noted that relators were seeking concurrent relief from both the United States Supreme Court and this court and we therefore declined to take action on the petition for a writ of mandamus so long as we were in the position of exercising parallel jurisdiction with the Supreme Court of the United States. We continued action on the matter until the United States Supreme Court made known whether it would accept jurisdiction in the matter.

On November 13, 1975, Mr. Justice Blackmun, in his capacity as Circuit Justice, issued a chambers opinion in which he noted his desire to refrain from issuing or denying a stay on the restrictive order until this court had an opportunity to act on the same.

On November 18, 1975, this court set November 25, 1975, as the date on which we would hear relators' arguments on their request for an original action as well as on the substantive questions surrounding the constitutionality of the restrictive order. Relators thereafter filed a reapplication for a stay with Mr. Justice Blackmun.

On November 20, 1975, Mr. Justice Blackmun handed down a chambers opinion in which he granted relators a partial stay on the October 27, 1975, order.

On November 24, 1975, the Lincoln County attorney and defendant's attorney filed petitions in intervention with this court requesting to be heard at the November 25, 1975, hearing. The petitions were granted and a full hearing was held before this court on that date.

On November 25, 1975, this court, despite the intervening order of Mr. Justice Blackmun, heard oral arguments in both cases before us insofar as they pertain to the request for a stay of the restrictive order of the District Court. After Mr. Justice Blackmun issued his order the media, not being satisfied therewith, invoked the jurisdiction of the Supreme Court of the United States and asked it to vacate the portion of the trial court's restrictive order not vacated by Mr. Justice Blackmun. If we were to be entirely consistent we ought now to again refrain from acting because we are now in the position of exercising concurrent jurisdiction with the United States Supreme Court for which there is no precedent. Nonetheless, despite the regrettable possibility of collision, there are important questions of procedure and standing which need definition by us and which relate only to state procedures. In addition, the trial courts of this state are in need of some guidance from us in the matter at issue and which may not be otherwise forthcoming. Additionally, as Mr. Justice Blackmun appropriately notes, the question of the jurisdiction of the Supreme Court of the United States in this matter is "not without difficulty" because there has been no order, final or otherwise, by this court. That "difficulty" ought to be removed. So we proceed to determine the matter before us on the merits insofar as the request for the stay of the District Court order is concerned.

The first question we must decide is that of our own jurisdiction in case No. 40471, the original action of mandamus. We have jurisdiction in an original action of mandamus if the order of Judge Stuart of October 27, 1975, is in whole or in some significant part wholly void. State ex rel. Reynolds v. Graves, 66 Neb. 17, 92 N. W. 144. We conclude, for reasons hereinafter stated, that the order is in part void and so affirm or grant permission to the relators to file the original action.

The next question before us is whether the relators had standing to intervene in State v. Simants, case No. 40445. No third party has any right to intervene in a criminal prosecution. The matter at issue in such cases is the guilt or innocence of the accused. In legal contemplation no third party "has or can claim an interest in the matter in litigation, in the success of either of the parties to action, or against both." This is the standard applicable to the right to intervene. § 25-328, R. R. S. 1943. See State v. Berry, 192 Neb. 826, 224 N.W.2d 767. Accordingly, the appeal in case No. 40445 is dismissed.

The restrictive order of Judge Stuart of October 27, 1975, insofar as we need to set it forth is in summary as follows: It applies only to pretrial publicity and terminates when the jury is impaneled to try the case of State v. Simants. It applies only to the relators. It incorporates generally as a standard for reporting certain voluntary Nebraska Bar-Press Guidelines for Disclosing and Reporting of Information Relating to Imminent or Pending Criminal Litigation. It prohibits the publication of the fact, if any, or the contents of confessions or admissions against interest or statements made by the accused to law enforcement officials. It prohibits the publication of the fact, if any, or the contents of statements against interest made to certain named individuals. It prohibits the publication of the nature of the probable testimony of certain named witnesses, and certain aspects of the testimony of another named witness. It prohibits the publication of the identity of a person or persons allegedly sexually assaulted. It prohibits the publication of the exact nature of the limiting order and prohibits reference to the contents of two specific paragraphs of the order.

We now proceed to our resolution and accommodation of the two conflicting constitutional rights and introduce that resolution with quotation from "Statement on Matters of Joint Concern to the Bench, the Bar, Law Enforcement Officers, and the News Media" contained in the ABA Standards Relating to Fair Trial and Free Press, p. 16: "(a) General. Freedom of speech and of the press are fundamental liberties guaranteed by the United States Constitution. They must be zealously preserved, but at the same time must be exercised with an awareness of the potential impact of public statements on other fundamental rights, including the right of a person accused of crime, and of his accusers, to a fair trial by an impartial jury.

"(b) The need to inform the public. It is important both to the community and to the criminal process that the public be informed of the commission of crime, that corruption and misconduct, including the improper failure to arraign or to prosecute, be exposed whenever they are found, and that those accused of crime be apprehended. If, however, public statements and reporting with respect to these matters assume the truth of what may be only a belief or a suspicion, they may destroy the reputation of one who is innocent and may seriously endanger the right to a fair trial in the event that formal charges are filed.

"(c) From the time of arrest or the filing of charges to the beginning of trial. A man who has been arrested, for whom an arrest warrant has been issued, or against whom a criminal complaint, information, or indictment has been filed, has only been charged with the commission of crime. He is entitled under the Constitution to a fair and impartial trial, in which he is presumed innocent until proved guilty by competent evidence. Thus during the period prior to trial, public statements originating from officials, attorneys, or the news media that assume the guilt of the person charged, that include inaccurate or inadmissible information, or that serve to inflame the community, may undermine the judicial process by making unobtainable a jury satisfying the requisite standard of impartiality. Alleged facts may be untrue, confessions obtained or evidence seized may be inadmissible in evidence, prior criminal records will be inadmissible except under limited circumstances and for restricted purposes, and witnesses may substantially modify their stories under oath or after confrontation by the accused or cross-examination. The right to a fair trial may thus be substantially endangered by public statements or by reporting prior to trial going beyond a factual description of the person arrested and of the crime charged and a factual statement of the arrest and surrounding circumstances. The danger is especially acute when public statements or reporting extend to such matters as confessions or admissions, prior history, or the performing of tests or refusal to submit to a test; opinions about guilt or innocence; interviews of prospective witnesses; interviews of the defendant before he has had an opportunity to consult with counsel; and speculation as to the plea to be entered or the evidence or testimony to be introduced at the trial. The release and publication of photographs when identification is a matter in dispute may cause particular difficulty, as may reiteration of any earlier detailed reports as the time of trial approaches."

The constitutional guarantees of freedom of speech and of the press and of the right of trial by an impartial jury are, in our judgment, the same under both the Constitutions of this state and of the United States and there is no need to differentiate between the two Constitutions in this Discussion.

"The First Amendment freedoms are not ends in themselves, but only means to the end of a free society. . . . The First Amendment freedoms are vital, but their exercise must be compatible with the preservation of other essential rights. Application of the First Amendment can no more be governed by absolute rules than can that of other constitutional provisions." Schwartz on Constitutional Law, § 135, p. 251. The rights which are guaranteed by the First Amendment to the United States Constitution and the right to trial by an impartial jury guaranteed by the Sixth Amendment are both "preferred" rights. Schwartz, op cit, § 111, p. 193. The Constitution makes no hierarchy of rights. Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949), Mr. Justice Jackson Dissenting at p. 180.

The Supreme Court of the United States has not yet had occasion to speak definitively where a clash between these two preferred rights was sought to be accommodated by a prior restraint on freedom of the press. There are, however, some statements in various opinions which lead to the Conclusion that under some circumstances prior restraint may be appropriate. In Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), where the claimed right of a newsman not to be compelled to testify before a grand jury was denied, Mr. Justice White, in the majority opinion said: "The prevailing view is that the press is not free to publish with impunity everything and anything it desires to publish. . . . Despite the fact that news gathering may be hampered, the press is regularly excluded from grand jury proceedings, our own conferences, the meetings of other official bodies gathered in executive session, and the meetings of private organizations. Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded, and they may be prohibited from attending or publishing information about trials if such restrictions are necessary to assure a defendant a fair trial before an impartial tribunal. In Sheppard v. Maxwell, 384 U.S. 333 (1966), for example, the Court reversed a state court conviction where the trial court failed to adopt 'stricter rules governing the use of the courtroom by newsmen as Sheppard's counsel requested,' neglected to insulate witnesses from the press, and made no 'effort to control the release of leads, information, and gossip to the press by police officers, witnesses, and the counsel for both sides.' Id. at 358, 359. 'he trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters.' Id., at 361." The statement immediately preceding the citation of Sheppard v. Maxwell is, however, dicta as no issue of prior restraint was actually involved in the Sheppard case. There are also implications in other opinions that prior restraints may be imposed and it is also clear that the Supreme Court of the United States has never said, in the context with which we are here concerned, that such restraints may never be imposed when necessary to assure trial by an impartial jury. See Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751, Mr. Justice Frankfurter, Concurring, at p. 729. In Pennekamp v. Florida, 328 U.S. 331, 66 S. Ct. 1029, 90 L. Ed. 1295, Mr. Justice Reed said: "Free Discussion of the problems of society is a cardinal principle of Americanism -- a principle which all are zealous to preserve. Discussion that follows the termination of a case may be inadequate to emphasize the danger to public welfare of supposedly wrongful judicial conduct. It does not follow that public comment of every character upon pending trials or legal proceedings may be as free as a similar comment after complete disposal of the litigation. Between the extremes there are areas of Discussion which an understanding writer will appraise in the light of the effect on himself and on the public of creating a clear and present danger to the fair and orderly judicial administration. Courts must have the power to protect the interests of prisoners and litigants before them from unseemly efforts to pervert judicial action. In the borderline instances where it is difficult to say upon which side the alleged offense falls, we think ...

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