Ex Parte The STATE RECORD CO., INC., Appellant, v. In Re STATE of South Carolina vs. B.J. Quattlebaum, Respondent
No. 24831
Supreme Court of South Carolina
Decided Aug. 31, 1998
Rehearing Denied Sept. 25, 1998
504 S.E.2d 592
Heard Oct. 22, 1997.
Joseph M. McCulloch, Jr., Columbia, A. Camden Lewis of Lewis, Babcock & Hawkins, Columbia; Katharine E. Evatt and Donald V. Myers, Lexington, for respondent.
WALLER, Justice:
This is an appeal of a temporary restraining order prohibiting the media from disseminating the contents of a videotape containing a privileged communication between the defendant herein, B.J. Quattlebaum, and his attorney. The State-Record Co., Inc. (The State/Newspaper) appeals. We affirm.
FACTS
Quattlebaum was indicted for murder, armed robbery, assault and battery with intent to kill and possession of a
After a hearing on August 19, 1997,3 the circuit court continued its order in effect until such time as a jury was empaneled and sequestered in Quattlebaum‘s case.4 The circuit court‘s order specifically notes that it does not “prohibit the reporting of the invasion of the attorney client privilege;” nor does it “restrain or prohibit [publication of] the identity of the individuals involved or the nature of the charges in the case.” It simply prohibits the “dissemination of the contents of the communication or the characterization of its contents.”
ISSUES
- Did the circuit court have subject matter jurisdiction to issue the temporary restraining order?
Did the circuit court have personal jurisdiction over Newspaper? - Did the court err in imposing a prior restraint?
1. SUBJECT MATTER JURISDICTION
Initially, The State contends the court of general sessions is without subject matter jurisdiction to issue an injunction.5 We disagree.
The general rule that a court in a criminal case will not issue an injunction is subject to the exception that a court, once having obtained jurisdiction of a cause of action, has inherent power to do all things reasonably necessary to the administration of justice in the case before it. 42 Am.Jur.2d Injunctions § 11 (1969). The United States Supreme Court has recently recognized the inherent authority of a court to protect its proceedings. See Degen v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996) (courts invested with judicial power have inherent authority to protect their proceedings in course of discharging their traditional responsibilities). We find it patent that a court of general sessions has subject matter jurisdiction to issue an injunction, if necessary, to protect its proceedings.
2. PERSONAL JURISDICTION
The State next argues the circuit court was without personal jurisdiction to bind it. We disagree.
Under Rule 65(d) of the
3. PRIOR RESTRAINT7
The State next contends the circuit court erred in issuing a prior restraint as Quattlebaum failed to meet his burden of justifying its necessity. We disagree. Under the extremely limited factual circumstances of this case, we find the circuit court properly enjoined dissemination of the privileged communication between Quattlebaum and his attorney.
This Court is faced with a profound dilemma: whether to uphold a prior restraint upon the media‘s First Amendment8 right of free speech, a task which carries with it an extremely heavy burden upon the party seeking to limit the speech9; or whether to invalidate the prior restraint placing in jeopardy the fundamental right of a defendant to a fair trial pursuant to the Sixth Amendment.10 We are faced with the added quandary that the information sought to be disseminated by the media is a privileged communication between a criminal defendant and his attorney.11
United States v. Noriega, has involved violation of the attorney client privilege. There have been a series of opinions in Noriega. The first was issued by the United States District Court for the Southern District of Florida. United States v. Noriega, 752 F.Supp. 1032 (S.D.Fla.1990) (Noriega 1). In Noriega 1, the district court temporarily enjoined Cable News Network (CNN) from broadcasting tape recordings of privileged telephone conversations between Manuel Noriega and his defense team, until such time as the tape recordings could be reviewed by a federal magistrate to ascertain whether the defendant‘s right to a fair trial would be jeopardized by publication of the contents. The Eleventh Circuit affirmed the grant of the temporary injunction on the ground that CNN‘s failure to produce the tape recording had prevented the district court from balancing the defendant‘s right to a fair trial with CNN‘s First Amendment rights. United States v. Noriega, 917 F.2d 1543 (11th Cir.1990) (Noriega 2). The United States Supreme Court denied certiorari. Cable News Network, Inc. v. Noriega, 498 U.S. 976, 111 S.Ct. 451, 112 L.Ed.2d 432 (1990). Thereafter, the district court held Noriega had not met his burden of demonstrating the necessity of a permanent injunction, in part because a portion of the privileged attorney-client conversation had already been broadcast by CNN (such that it was moot), and that the remaining portion of the privileged conversation was simply not so prejudicial as to warrant a prior restraint. United States v. Noriega, 752 F.Supp. 1045 (S.D.Fla.1990) (Noriega 3). The court in Noriega 3 also found Noriega‘s claim that his Sixth Amendment right to effective assistance of counsel was jeopardized insufficient to justify the continued prior restraint, since alternative measures were available through which to prevent prosecutorial tainting. Id.
The authors of the Bill of Rights did not undertake to assign priorities as between the First Amendment and Sixth Amendment rights, ranking one as superior to the other. In this case, petitioners would have us declare the right of an accused subordinate to their right to publish in all circumstances.... [I]t is not for us to rewrite the Constitution by undertaking what they declined to do. It is unnecessary, after nearly two centuries, to establish a priority applicable in all circumstances.
Notwithstanding its reluctance to assign priorities between the competing interests, the Court has recognized that the right of a defendant to a fair trial is “the most fundamental of all freedoms—[which] must be maintained at all costs.” Estes v. State of Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543, 549 (1965). More recently, the Court noted that “No right ranks higher than the right of an accused to a fair trial.” Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 508, 104 S.Ct. 819, 823, 78 L.Ed.2d 629, 637 (1984).
The Nebraska Press Court recognized a trial court‘s duty to protect the defendant‘s constitutional right to a fair trial from the impact of pretrial publicity:
Due process requires that the accused receive a trial by an impartial jury free from outside influences.... [T]he trial courts must take strong measures to ensure that the balance is never weighed against the accused . . . where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should [take such measures as continuance, change of venue, sequestration, or a new trial].... But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences.
427 U.S. at 552-53, 96 S.Ct. at 2800, 49 L.Ed.2d at 694 (emphasis supplied) (citing Sheppard v. Maxwell, 384 U.S.
Citing Learned Hand,13 Nebraska Press established a three-prong balancing test to determine whether a prior restraint is justified:
- The nature and extent of pretrial publicity;
- Whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and
- How effectively a restraining order would operate to prevent the threatened danger.
427 U.S. at 562-68, 96 S.Ct. at 2804-07, 49 L.Ed.2d at 699-703. Nebraska Press specifically noted that “[t]he precise terms of the restraining order are also important.” Id. at 562, 96 S.Ct. at 2804, 49 L.Ed.2d at 699.
We find the remedial measures employed by the trial court here were necessary to guarantee Quattlebaum‘s right to a fair trial.14 Moreover, the restraint imposed by the trial court was as narrowly tailored, both in scope and duration, as was possible under the circumstances.
Here, as to the first element, although Quattlebaum‘s case was not extremely “sensational,” it was a death penalty case which received media attention throughout the state due, in large part, to the videotape in question. We find sufficient evidence in the record from which to conclude the pretrial publicity in this case had the potential to impair the Quattlebaum‘s right to a fair trial. Accord Nebraska Press, 427 U.S. at 562-63, 96 S.Ct. at 2804, 49 L.Ed.2d at 700 (notwithstanding impact of publicity is “of necessity speculative,” dealing as a court must with factors unknown and unknowable, court could reasonably conclude, based on common human experience, that publicity might impair defendant‘s right to a fair trial).
The most troubling element of Nebraska Press is the second prong, whether “other measures would be likely to mitigate the effects of unrestrained pretrial publicity.” The problem with application of this factor is that it is simply untenable to suggest that other measures would not, in any case, be “likely to mitigate” the effects of pretrial publicity. It could always be argued that other measures would, to some degree, “mitigate” the effects of pretrial publicity.16 “Mitigate” is defined as “to make less severe, alleviate....” NEW WEBSTER‘S DICTIONARY AND THESAURUS 640 (1993). Although alternate measures might “make less severe” the effects of pretrial publicity, they could not, in this case, ensure Quattlebaum‘s right to a fair trial. Were we to premise our analysis solely upon whether other measures would be “likely to mitigate” the effects of pretrial publicity, then we can conceive
However difficult it may be, we need not rule out the possibility of showing the kind of threat to fair trial rights that would possess the requisite degree of certainty to justify restraint. This Court has frequently denied that First Amendment rights are absolute and has consistently rejected the proposition that a prior restraint can never be employed.
427 U.S. at 570, 96 S.Ct. at 2808, 49 L.Ed.2d at 704.
Rather, as we view the Nebraska Press test, it must be viewed in its entirety, with a view toward ensuring a defendant‘s fundamental right to a fair trial, and not merely with an eye toward “mitigating the effects” of pretrial publicity. As noted previously, the Nebraska Press Court specifically noted that such invasion of free speech as is necessary to avoid the danger is permissible. See supra note 13.18 We find the
Our decision to affirm the circuit court‘s issuance of a temporary restraining order is bolstered by the uncertainty of the precise standard necessary to justify a prior restraint in
As noted in Footnote 11, the Noriega cases involved the recording of Manuel Noriega‘s privileged telephone calls with his attorneys while in prison in Florida. The United States District Court for the Southern District of Florida temporarily restrained CNN, which had gained possession of the tapes, from broadcasting the recordings until it could determine whether broadcasting the tapes would prejudice Noriega‘s trial. United States v. Noriega, 752 F.Supp. 1032 (S.D.Fla.1990) (Noriega 1). Clearly, this does not comport with the Nebraska Press three-prong test as that test requires a showing of prejudice in the first instance before a prior restraint is ever justified. Nonetheless, the Eleventh Circuit upheld the restraining order. United States v. Noriega, 917 F.2d 1543 (11th Cir.1990) (Noriega 2).21 In doing so, the Eleventh Circuit noted that “the determination of whether the telephonic communications between Noriega and his defense counsel are privileged, while not necessarily dispositive of whether such communication should be publicly broadcast, would be relevant to the District Court‘s assessment of potential harm to Noriega‘s right to a fair trial.” Id. at 1551. The Supreme Court denied certiorari, over the dissent of Justices Marshall and O‘Connor. 498 U.S. 976, 111 S.Ct. 451, 112 L.Ed.2d 432 (1990).
CONCLUSION
It is difficult to conceive of a situation in which the rights of a defendant to a fair trial were more at jeopardy than the instant case.23 If Quattlebaum‘s Sixth Amendment rights were insufficient to justify imposition of the prior restraint in this case, we can think of no situation in which a prior restraint would ever be justified or in which alternative measures would not be found sufficient to mitigate any threatened
AFFIRMED.
FINNEY, C.J., MOORE and BURNETT, JJ., concur.
TOAL, J., concurring and dissenting in separate opinion.
TOAL, Justice:
I concur as to the majority‘s discussion of subject matter jurisdiction and personal jurisdiction, but dissent as to the validity of the prior restraint.
At the outset, it is essential to understand that all prior restraints are not equal. It is also important to understand what the present prior restraint is, and what it is not. The prior restraint here is a judicial restraint on the disclosure by the press of an attorney‘s private consultation with his client. By restraining publication, the trial court has attempted to protect and preserve the integrity of a criminal trial and the constitutional values which inhere therein. What this prior restraint is not is an executive, legislative, or judicial prior restraint of the expression of an opinion. It is also not a permanent restraint on the publication of the attorney-client conference.
The First Amendment to the United States Constitution provides, “Congress shall make no law . . . abridging the freedom of speech, or of the press....”
A fair trial is guaranteed to litigants in both civil and criminal disputes. Does it make a difference whether the judicial prior restraint is simply a device to prevent premature publicity of matters at issue in a civil or criminal trial as opposed the prior restraint at issue in the instant capital murder case where the court also seeks to safeguard such constitutional values such as the protection against self-incrimination, the right to an attorney of the defendant‘s choosing, and the right to a speedy trial?
In high-profile criminal cases, trial judges frequently encounter a media frenzy which they must deal with in a matter of hours. In this case, the police taped defendant‘s very first conversation with his lawyer, just after he was arrested for murder. The prosecution retained this tape for over a year unbeknownst to defendant or his lawyer. The tape was leaked to the largest television station in the area from which defendant‘s jury would be selected. The possibility of a tainted jury venire was very real. The trial judge proposed to solve this dilemma by restraining the media from publishing the attorney-client conversation until the jury had been empaneled. The television station involved here was responsible enough to voluntarily restrain publication of the surreptitiously taped attorney-client conference until a hearing could be held.
The Nebraska Press test requires the trial court to make detailed findings on all available alternatives. This may be unrealistic in the real world of high-profile criminal trials. Additionally, it forces the trial judge to make choices between other constitutional values. It may always be possible to posit other “possible” alternatives to judicial prior restraints. If a trial judge has to eliminate all other alternatives (a crystal ball exercise since none of the “alternatives” will have been put into play), then in reality there exists an absolute prohibition against any prior restraint. Are the protections of the Fifth and Sixth Amendments thus sacrificed to the demands of the modern day media for instant public dissemination of any information to which it falls privy no matter the impact on the fairness of the trial? In the final analysis, Nebraska Press, for all its language to the contrary, may have effectively established the constitutional doctrine that the First Amendment trumps the Fifth, Sixth, and Fourteenth Amendments.
As noted above, I agree with the majority that the Nebraska Press test should be revisited by the Supreme Court. A standard must be formulated that adequately addresses the pressures and complex constitutional concerns that accompany a high-profile murder case. That said, I find myself compelled to dissent under the current state of the law. Further, the majority‘s proposed standard falls short of the kind of sophisticated test required in this situation. Although more flexibility in issuing a prior restraint may be deserving in a case such as this, it should not result in a “rubber stamped” restraint whenever there is any potential prejudice to the defendant. An examination of less restrictive alternatives must remain part of the analysis.
As discussed by the majority, in this century the United States Supreme Court has consistently interpreted the First Amendment as mandating a “heavy presumption” against the constitutional validity of prior restraints. Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Carroll v. President and Com‘rs of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). This presumption is largely the result of Justice Oliver Wendell Holmes‘s famous declaration in Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907): “[T]he main purpose of [the First Amendment] is to prevent all such previous restraints upon publications as had
In Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), the United States Supreme Court addressed this very issue. The defendant was charged with murdering six members of a family in the small town of Sutherland, Nebraska, a town of about 850 people. Due to the notoriety of the case, the trial court issued an order prohibiting the press from publishing specific aspects of the trial. The Nebraska Supreme Court upheld the restraint with some modifications. The United States Supreme Court reversed, finding the prior restraint invalid under its three-prong test.
In this case, the majority questions the second prong of the Nebraska Press test. The majority states that under this prong no situation can be conceived of in which a prior restraint would be justified because alternative measures would almost always be likely to mitigate the effects of pretrial publicity. The majority asserts that such a standard is untenable as it would be impossible for a court to ensure a defendant‘s Sixth Amendment right to a fair trial. I share the majority‘s concern and agree that the second prong of the Nebraska Press test should not be read in isolation. The test itself does not require invalidation of a prior restraint solely because other measures might mitigate the effects of the pretrial publicity. It is a balancing test. A court must consider the degree to which other measures will mitigate the adverse effects of the pretrial news coverage in light of the nature and extent of that publicity. See Nebraska Press, 427 U.S. at 569, 96 S.Ct. at 2807, 49 L.Ed.2d at 703 (“We cannot say on this record that alternatives to a prior restraint on petitioners would not have sufficiently mitigated the adverse effects of pretrial publicity so as to make prior restraint
In this case, there is little doubt that other measures might mitigate the effects of the pretrial publicity. The pertinent question under Nebraska Press is whether such alternatives would sufficiently mitigate those effects. Under the current state of the law, I am compelled to answer yes to this question.
The Supreme Court‘s first prior restraint decision was Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, which involved a legislative restraint on publication. By invalidating the restraint, the Court in Near echoed Holmes‘s earlier proclamation in Patterson that the primary objective of the First Amendment was to avoid prior restraints. Quoting James Madison, the Court stated, “This security of the freedom of the press requires that it should be exempt not only from previous restraint by the Executive, as in Great Britain, but from legislative restraint also.” Near, 283 U.S. at 714, 51 S.Ct. at 630, 75 L.Ed. at 1366. The Court further observed, “The preliminary freedom [of the press] extends as well to the false as the true.” Id.
It was not until 1968 that the Supreme Court added to its First Amendment jurisprudence a presumption against judicial prior restraints. See Carroll v. President and Com‘rs of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325. The Court‘s invalidation of judicial prior restraints came without an explanation of why the First Amendment was applicable to such orders. Id. (simply concluding that there is a “heavy presumption” against prior restraints under the First Amendment). In New York Times Company v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), the government sought to enjoin the New York Times and the Washington Post from publishing a classified study of the
The majority emphasizes that the Supreme Court in Nebraska Press declined to assign priorities between the First and Sixth Amendments. As such, the majority seeks to take advantage of this apparent indecision by suggesting the primacy of the Sixth Amendment. The majority notes that “a number of lower courts have held that a defendant‘s Sixth Amendment right to a fair trial is superior to the right of free speech and that, where the two rights collide, the latter must give way to the former.” However, none of the cases cited by the majority involved prior restraints.4 In fact, these cases explicitly distinguished prior restraints from other restrictions on freedom of expression and acknowledged the virtual per se invalidity of the former.
Like the court in Foxman, the Second Circuit in Application of Dow Jones & Company 842 F.2d 603 (2d Cir.1988), cert. denied, 488 U.S. 946, 109 S.Ct. 377, 102 L.Ed.2d 365 (1988), addressed the constitutionality of a lower court order restricting extrajudicial statements by trial participants. In distinguishing prior restraints from the restriction before it, the court stated,
[T]here is a substantial difference between a restraining order directed against the press—a form of censorship which the First Amendment sought to abolish from these shores—and the order here directed solely against trial participants and challenged only by the press. The distinction is critical.
The most offensive aspect of a prior restraint is the censorship involved by forbidding the dissemination of information already known to the press and therefore public. A prior restraint deprives the public of specific news because it prevents publication. Although the restraining order in this case limits the flow of information readily available to the news agencies—and for that reason might have an effect similar to that of a prior restraint—the fact that the order is not directed at the news agencies and that they therefore cannot be haled into court for violating its terms deflates what would otherwise be a serious concern regarding judi-
cial censorship of the press. For this reason the order is considerably less intrusive of First Amendment rights than one directly aimed at the press.
Application of Dow Jones & Company, 842 F.2d at 608.
These cases demonstrate that while it may be permissible for a court to restrict some First Amendment freedoms in order to protect a defendant‘s right to a fair trial, it is almost never acceptable for a court to impose a prior restraint.6 At most, the two interests share equal prominence in the Constitution.
The Supreme Court in Nebraska Press sought to reconcile these interests without creating an arbitrary hierarchy. First, the Court recognized that “[a] prior restraint, . . . by definition, has an immediate and irreversible sanction.” Nebraska Press, 427 U.S. at 559, 96 S.Ct. at 2803, 49 L.Ed.2d at 697-98. Conversely, pretrial publicity does not inflict an immediate injury but only poses “a risk that [the publicity will] have some adverse impact on the attitudes of those who might be called as jurors.” Id. at 569, 96 S.Ct. at 2807, 49 L.Ed.2d at 703 (emphasis added). In other words, any injury to the defendant is measured by probability; whereas, the prior restraint is a present transgression of a core constitutional right. By employing the remedial measures suggested in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966),7 the prior restraint is immediately rectified and any future risk of not having a fair trial is cured. This is exactly what the second prong of the Nebraska Press test attempts to achieve. See U.S. v. Noriega, 752 F.Supp. 1045, 1054 (S.D.Fla.1990) (“If nothing else, Nebraska Press stands for the
As discussed above, any injury to Quattlebaum is measured solely by probability. All the while, the constitutional infirmity of the prior restraint persists. Therefore, to justify such an immediate and profound infringement of the First Amendment, Nebraska Press requires a finding that, absent the prior restraint, the defendant will be denied a fair trial. The record here simply does not support such a conclusion. The trial court‘s consideration of alternative measures was, at best, cursory. The trial court failed to make specific findings regarding the degree to which other measures would mitigate the effects of the pretrial publicity.8 Such findings are basic to the balancing required by Nebraska Press. If the trial court had explored each of the alternatives, it would have had to conclude that the prior restraint was not necessary.9
Finally, the majority asserts that its decision to affirm the restraining order is “bolstered by the uncertainty of the precise standard necessary to justify a prior restraint in cases in which the defendant claims, not only that pretrial publicity threatens his right to a fair trial, but also that his attorney-client privilege has been violated, thereby jeopardizing his right to effective assistance of counsel.” Again, I join the majority‘s frustration in not having a more suitable test with which to address the unique and profound constitutional concerns presented in this case. Nevertheless, under current case law, I remain compelled to conclude that the prior restraint here must be struck down.
In United States v. Noriega, 752 F.Supp. 1032 (S.D.Fla.1990) (Noriega 1), the federal district court faced the question of whether to restrain the publication of privileged conversations between Noriega and his defense team. The court imposed a temporary restraining order until it could review
In Noriega III, the district court summarized the inquiry mandated by the Eleventh Circuit in Noriega II:
[T]he fact that conversations may or may not fall within the protections of the [attorney-client] privilege has no bearing on whether Noriega‘s right to an impartial jury will be clearly and irreparably harmed by publication.... Guaranteeing Noriega‘s right to counsel involves an equally serious but much narrower inquiry. There, the court is concerned only with the extent to which the publication of legitimately privileged communications would prejudice Noriega‘s defense were those protected conversations to fall into the hands of the prosecution.
Id., 752 F.Supp. at 1051-52 (emphasis added). Thus, the significance of the attorney-client privilege is limited to a determination of whether the prosecution would be prohibited from obtaining the communications; and if so, whether the communications would have prejudiced the defendant‘s case if actually viewed by the prosecution. Even if a defendant could establish prejudice as a result of the prosecution gaining access to the conversations, a court would be required to explore less intrusive alternatives in order to avoid the prior restraint. Id. at 1054. (“Even if Noriega were able to meet his burden of establishing demonstrable prejudice upon the
Freedom of the press from prior restraints is the quintessential right under the First Amendment. However, the presumption against prior restraints must not eviscerate those rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments. A more sophisticated test is required in order to effectively address the complex constitutional concerns that may arise in any given criminal trial. The prerogative to change the prior restraint standards is the province of the United States Supreme Court. The majority makes a thoughtful and practical challenge to the current Nebraska Press test. I join the majority‘s plea for a change, but until the Supreme Court revises the current test, it binds us.
For the foregoing reasons, I respectfully dissent.
Notes
In Press-Enterprise, the Court dealt with the right of the public to attend voir dire proceedings in a criminal case. The case did not deal with a prior restraint. The Court invalidated the trial court‘s order to close the proceedings and vindicated the public‘s right to attend the proceedings. The Court found that the trial judge had failed to consider alternatives to closure and did not make findings sufficiently specific for review by an appellate court.
Stabile, Free Press-Fair Trial: Can They Be Reconciled in a Highly Publicized Criminal Case?, 79 Geo.L.J. 337, 343-45 (1990). See also Isaacson, Fair Trial and Free Press: An Opportunity for Coexistence, 29 Stan.L.R. 561 (1990) (recognizing inadequacy of alternative measures set forth in Nebraska Press and Sheppard v. Maxwell); Davis, 904 F.Supp. at 568-69.Postponement may encroach on the accused‘s right of a speedy trial and may actually increase publicity in a case of great public interest; change of venue involves delay presenting the problems associated with postponement, local communities have an interest in local adjudication, and a highly publicized criminal case likely will cause prejudicial information to be disseminated nationally, rendering change of venue ineffective; voir dire cannot remove individuals who have read previous newspaper accounts and a larger jury pool may result in a greater number of people who have been exposed to prejudicial publicity or to a delay in voir dire with an enhanced opportunity for improper publicity to occur; jury sequestration is not only a drastic measure, requiring the jurors to compensate for the publicized actions of trial participants, but also lengthy jury sequestration can cause the bias of resentment, the desire to end deliberation, and cannot remove prejudice from publicity prior to impanelment and jury instructions may be ineffective regardless of pretrial publicity because the great detail present in jury instructions in a highly publicized criminal trial may not highlight precisely the issues the jurors are being instructed not to consider.