The Fairness Factor

Before the current trial of John Mitchell and Maurice Stans got under way, their lawyers worried about how their clients would be treated by a jury made up of a bunch of New Yorkers who had almost certainly been influenced by newspaper and television reports of perjury and influence peddling. So the defense requested that the trial be removed to Meridian, Miss. "There are fewer network shows, fewer newspapers there." But the Mitchell-Stans lawyers surely knew that the wall-to-wall publicity surrounding Watergate has reached into Meridian. Thus their faintly facetious gesture seemed really to be raising a deeper and more disturbing question: Can any of the Watergate defendants get a fair trial anywhere in the U.S.?

In heavily Democratic Washington, D.C., where most future Watergate trials are likely to take place, former Presidential Appointments Secretary Dwight Chapin, who stands accused of perjury, has already blazed what will doubtless become a familiar path. In support of a requested change of venue, Chapin's lawyer put a black psychiatrist on the stand to testify that the city's 71% black population has "widespread feelings of hostility and rage" toward the Nixon Administration. Judge Gerhard Gesell dismissed Chapin's petition as "an affront to the jury system." Another criminal expert, Stanford Law Professor John Kaplan, takes a somewhat different stance. The Watergate defendants might very well not "get as fair a trial as if they were black and Democratic. But so what? A fair trial means as fair a trial as we can give them within reason."

Barn Door. Kaplan's flexible definition is a reminder of the difficulties of denning fairness. One all too common line of thinking holds that a "fair" jury promises a fifty-fifty chance of acquittal. In fact, fair jurors are expected to begin impartially, regardless of previous impressions, then follow the evidence to whatever conclusion it demands. But once judge, prosecution and defense have accepted a panel to do that job, an immediate question arises--particularly in notorious cases. Can the jurors' impartiality be sustained in the face of a barrage of publicity? A judge can reduce the danger by imposing a gag on out-of-court comments by all trial participants, and he can sometimes delay the trial until a superheated atmosphere cools. But with Watergate, it is likely that the various juries will have to be sequestered in hotels under the constant eye of bailiffs who censor every outside contact.

The Mitchell-Stans jurors have already been sequestered. But "in this instance it's like locking the barn door after the horse walked out whistling Yankee-Doodle," says Donald Albanito, a dean at Illinois' Bradley University, who was sequestered in the 1967 trial of Murderer Richard Speck. Moreover, Albanito wonders "whether being immersed every day in questions of alleged political intrigues may not so depress the jurors that they would be willing to believe anything evil about everyone involved. I think people get a better view of the world sitting at home than they do locked up with eleven strangers they can quickly learn to dislike."

Still there is little doubt that continuing news stories about Watergate developments could have an impact on the trials. A recent Columbia University study, for instance, found that a mock panel of jurors exposed to prejudicial news stories was far more likely to convict than were jurors who had read only carefully neutral articles. Social Psychologist Alice Padawer-Singer, a co-director of the study, concluded that thorough questioning of potential jurors is critical to obtaining an impartial trial. The process not only eliminates most prejudiced candidates, she reports, but "sensitizes chosen jurors to all aspects of the case." That is, the panel members become impressed with the need to clear their minds of any previous notions they may have had about the defendants.

Jury selection has, in fact, become a well-developed legal art. The U.S. has been through a dozen years of sensational trials--Angela Davis, the Chicago Seven, Charles Manson, Jack Ruby --and jury fairness was almost never seriously challenged. The same should be true for Watergate. Columbia Constitutional Law Professor Benno Schmidt Jr. carefully states the widely shared view of experts: "It's entirely possible to get a trial which is both fair in the sense that the average person thinks of as fair, and also fair in the legal sense of satisfying due-process standards." Adds the University of Chicago's Harry Kalven, an expert on juries: "To demand more purity than that is wholly unappealing. At that point, you're not asking for a fair trial, but no trial at all." Which is just what some Watergate defendants seem to be asking for, believes Berkeley Criminal Law Professor Sanford Kadish, and "that makes me mad."

Indeed, it is even possible that the Watergate defendants may get a fairer trial than do most others. As PadawerSinger put it: "When the trials take place, the jurors are going to feel the eyes of the nation upon them and will therefore go out of their way to perform in a responsible way. They'll know that they are being watched, scrutinized, and they'll be very careful to try to avoid prejudice, one way or the other."

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