by Mark R. Scherer. Lubbock, Texas: Texas Tech University Press, 2008. 256pp. $40.00. ISBN: 9780896726260.

Reviewed by Michael Paris, Political Science Department, College of Staten Island (CUNY). Email: michaelpari [at] gmail.com.


In RIGHTS IN THE BALANCE, Mark Scherer tells the story of a landmark Supreme Court case, and he tells it well. NEBRASKA PRESS ASSOCIATION v. STUART, which reached the Court in 1976, involved the age-old conflict between freedom of the press and a defendant’s right to a fair trial before an impartial jury. The Court’s unanimous holding eliminated one weapon in the trial judge’s arsenal for dealing with the problem of pre-trial publicity: the blunderbuss gag order directed to the press barring the publication of certain categories of information prior to jury selection.

Many readers of these electronic pages will be familiar with the outline of the story from Fred Friendly’s famous account of “a crime and its aftershock” (reprinted in Friendly and Elliott 1984, pp.145-158). In his painstakingly researched and competently written volume, Scherer fills in all the details. We meet and follow the relevant actors – the disturbed perpetrator of a gruesome, “In-Cold-Blood” style massacre and his six victims, the law enforcement officials, prosecutors, defense attorneys, and trial judges who had to respond quickly to the horrific crime under great duress, the journalists who converged on the remote prairie village where the crime took place, determined to dig out the facts, the media executives (and their lawyers) who mobilized legal appeals to challenge what they saw as blatantly unconstitutional censorship, and the appellate justices, both state and federal, to whom it fell to rule on the conflict between a free press and a fair trial.

The story begins in 1975 in Sutherland, Nebraska (population 840). Charles Erwin Simants, then twenty-nine years old, lived in the basement of his sister’s house. On an October night, he entered his neighbor’s home with his brother-in-law’s .22 caliber rifle in hand, determined, apparently, to sexually assault ten-year old Florence Kellie, who was momentarily alone. When the girl resisted his attack, Simants shot and killed her. Simants then proceeded to slaughter five other Kellie family members, one-by-one, as they returned home. He also sexually assaulted at least two of his female victims, both before and after their deaths.

After the killings, Simants went back to his sister’s house, placed the weapon where he had found it, confessed the crime to his thirteen year-old nephew (“I just killed the Kellies”), telephoned his parents and confessed the crime to them as well, and left a hand-written note (“I am sorry to all. It is the best way out. Do not crie.”). Simants’ father was the first to arrive at the Kellie home, and it was he who notified the authorities. After Simants was apprehended at the [*855] crime scene the next morning, he gave the police a detailed confession.

Over the next few days, print and broadcast media accounts contained many statements by Simants’ family members and law enforcement officials linking Simants to the killings, including information about his admissions of guilt.

Scherer shows us that the lawyers and trial judges immediately began to worry about the problem of impaneling an impartial jury. They did so, clearly, in the difficult context of a wildly sensational crime in a small, rural community. But they also did so in a particular legal context. That context, Scherer notes, extended backwards to Chief Justice Marshall’s exposition on publicity and juror impartiality during the treason trial of Aaron Burr. However, it took on a particular coloration during the television age. The 1960s witnessed the bench and bar’s growing concern about adverse (and sometimes false and prejudicial) pre-trial publicity and the right to a fair trial. In several high profile cases, including IRVIN v. DOWD (1961) and SHEPPARD v. MAXWELL (1966), the U.S. Supreme Court reversed convictions obtained in the tainted atmosphere of media feeding frenzies. In SHEPPARD in particular, the Court berated the trial judge for failing to control sensational press attention and to otherwise orchestrate a fair trial. In response, legal and media elites across the country collaborated on voluntary codes about disclosures and pre-trial publicity. Nebraska’s version (the Nebraska “press-bar guidelines”) emerged in 1970. Among other things, the press-bar guidelines specified that a defendant’s confessions or admissions of guilt were not appropriate for reporting (see also Abramson 1994, Chapter 2).

Nebraska criminal procedure provided for a preliminary hearing in one court before one judge and for trial in another court before another judge. When prosecutors and defense attorneys joined in a motion to ban press reporting of the preliminary hearing, the hearing judge responded favorably. The one-day hearing was open to the public (Nebraska statutes precluded a closed hearing), but when it ended all persons present were given a copy of what purported to be a judicial order not to “reveal for public dissemination” any of the testimony or evidence they had witnessed (p.48). The hearing judge also incorporated the voluntary press-bar guidelines into his order.

To be sure, the hearing judge (Ronald Ruff, age 34) had a big problem. At the time, Nebraska law provided for a change of venue only to an adjacent county – no doubt a remnant of the days when jury justice was local justice – and such a change would make no difference here. And then there was SHEPPARD v. MAXWELL, which, on Ruff’s reading, seriously questioned the possibility of a fair trial. Still, as Scherer shows us, the gag order made little sense, for the cat was already out of the bag.

Over the next several months, Ruff’s gag order would be modified on three separate occasions: Once by the trial judge (Hugh Stuart, the named respondent in the U.S. Supreme Court), who basically re-wrote the same order using more precise language; once by Justice Harry Blackmun, who, in his [*856] capacity as the presiding judge for the 8th Circuit, entertained the media’s application for an emergency stay; and, finally, by the Nebraska Supreme Court, but only after full briefing and oral arguments. Both Blackmun and the state high court ruled that the trial judge had erred in incorporating the press-bar guidelines into his order. However, the state high court’s December 1975 opinion left in place a ban on the publication of “confessions made by Simants to law enforcement officials,” confessions or “admissions against interest” to any other third party, and “other information strongly implicative of the accused as the perpetrator of the slayings” (p.89).

Remarkably, through it all, journalists and media companies obeyed the gag orders, even as they vigorously and creatively pursued their state and federal appeals. As Friendly put it, and as Scherer reiterates, these particular media elites “did not believe in civil disobedience.” The Nebraska Press Association and its Washington allies (including well-connected Supreme Court advocates E. Barrett Prettyman and Floyd Abrams) were of course dissatisfied with the outcome in the Nebraska courts. For them, the remaining gag order was a prior restraint completely unsupported by facts and arguments brought out in court. Moreover, and centrally, the gag order violated “the principle that the press has an unrestricted right to publish information gleaned from a public hearing in open court or material contained in public documents” (p.89, emphasis in Scherer’s text).

The U.S. Supreme Court denied the media organizations’ application for a stay, but granted cert. Thus, the gag order remained in effect until the start of Simants’ trial in January 1976. By the time the Court handed down its decision in June, Simants, whose only defense was, plausibly enough, insanity, had been convicted and sentenced to die in the electric chair. In 1978, at the eleventh hour, the Nebraska Supreme Court ended up reversing Simants’ conviction and ordering a new trial. It turned out that the local sheriff, a key witness in the case, had visited with jurors at length while they were sequestered at the Howard Johnson’s Motel.

In three chapters (Chapters 5-7), Scherer follows the gag order appeal through the Supreme Court’s process, from the granting of cert., to briefing and oral arguments, to what is known about the Court’s decision-making in the case, and, finally, to readings of the justices’ various opinions. The case was not a close one. All nine justices agreed that the gag order was unconstitutional. However, the Court fractured on the question of how broadly or narrowly to cast the reasoning. No one opinion commanded the Court. Chief Justice Burger’s plurality opinion, joined by Justices Rehnquist and Blackmun, hewed most closely to the particular facts. Burger left open the possibility that the presumption against prior restraints could be overcome on a proper showing. Justice Brennan’s concurring opinion, joined by Justices Marshall and Stewart, advocated an absolute ban on pretrial gag orders directed to the press. Justices White, Powell, and Stevens each authored separate concurring opinions that expressed sympathy for Brennan’s view, but in the end pulled up just short of “never.” [*857]

Early in the book, Scherer tells us that his narrative will be guided not only by a conventional focus on the legal process, but also by “the human stories” that infuse it and give it life (p.7). Scherer, a lawyer turned historian, certainly keeps his eyes trained on the case and the people involved in it. Some readers will no doubt feel that they are getting more detail than they want or need. To take just one of many possible examples: Does it really matter that the trial judge who will have to rule on a motion for a gag order over a weekend will also have to attend to his daughter’s wedding? Scherer’s account also includes many mildly annoying digressions that consist of textbook-like treatments of things like the Court’s cert. process and biographical sketches of all of the justices. Still, on the whole, I think this is a very good book that clearly succeeds on its own terms. The thick narrative allows us to situate ourselves with various actors and thereby to gain a richer understanding of an important case. The book also does a very good job of incorporating the content and quality of media reporting in the case (the press reporting on the story of itself being muzzled).

Given that the motive for the gag order was the desire to impanel an impartial jury, I would have liked to have heard more about the jury selection processes in Simants’ criminal trials. Scherer mentions jury selection – for example, in the first trial, the judge seated four jurors who admitted that they had already heard much about Simants, but who insisted they could keep an open mind – but he does not go into much detail. Given his diligence elsewhere, it is likely that the historical record was a bit sketchy on this front.

I very much enjoyed reading “the human stories” and their attendant ironies. We find a young, ambitious DA who is so worried about pre-trial publicity that he seeks a gag order, and yet at a preliminary hearing he puts on a full day of testimony (with 9 witnesses), when probably twenty minutes of testimony would have sufficed. We witness a trial judge flouting elementary notions of jurisdiction and judicial authority by allowing media organizations to “intervene” in a criminal case. We see judges and justices holding fast to a gag order even after the dreaded disclosures are common knowledge in the community. We see state appellate judges who, miffed at the news organizations for running to the federal courts, take their own sweet time to decide the case before them. Human stories indeed.

As should be clear by now, Scherer is quite content to leave it to the reader to consider the possible broader themes and implications of his account. One theme that kept me moving through the details was the clash of local law (and norms and folkways) with alternative formal-legal norms emanating from “higher,” more distant places. As should be clear by now, the law enforcement officers, lawyers, judges, and jurors in this isolated rural setting certainly had customary ways of thinking and acting within local legal institutions.

The most telling example of this clash between what was old and local and what was new and national was the outmoded change of venue statute and its relationship to changing notions of jury justice and juror impartiality. In 1978, probably as a direct consequence of Simants’ case, the Nebraska state [*858] legislature amended the change of venue statute to allow trials to be moved to any county in the state. The new statute may have been a matter of life and death for Charles Erwin Simants. His second trial, which was largely a replay of his first, was moved to Lincoln, Nebraska. The jury found Simants not guilty by reason of insanity. Simants was then committed to the maximum security unit at the Lincoln Regional Center, where he remains to this day (p.182).

Abramson, Jeffrey. 1994. WE THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY. New York, NY: Basic Books. [Reissued, Harvard University Press, 2000].

Friendly, Fred W., and Martha J.H. Elliott. 1984. THE CONSTITUTION: THAT DELICATE BALANCE. New York, NY: Random House.

BURR v. UNITED STATES, 25 Fed. Cas. 49 (1807).

IRVIN v. DOWD, 361 U.S. 717 (1961).


SHEPPARD v. MAXWELL, 384 U.S. 333 (1966).

© Copyright 2008 by the author, Michael Paris.