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Sheppard v. Maxwell (1966)63 arose out of a notorious murder case. Marilyn Sheppard, the pregnant wife of Dr. Sam Sheppard, was beaten to death on July 4, 1954, in her home in suburban Cleveland. Dr. Sam claimed a bushy-haired stranger had done the foul deed; but the police never bought his story. They suspected Dr. Sheppard himself, who had been carrying on a love affair with a woman named Susan Hayes. The case had what it takes to match Thaw, Hall-Mills, Leopold and Loeb, and the other great lip-smacking scandal cases of the century. Representatives of the news media jammed the courtroom. Nobody except a cloistered nun could have escaped hearing about the case; certainly no juror or potential juror. The trial was not televised; but the Supreme Court found, nonetheless, that “bedlam reigned at the courthouse”; newsmen “took over practically the entire courtroom, hounding most of the participants.” The news media “inflamed and prejudiced the public.” One Ohio judge referred to the “atmosphere of a ‘Roman holiday.’” On top of everything else, the jury was not sequestered. The Court felt that under these circumstances, Sheppard had not received a fair trial. Sheppard’s conviction was vacated.ds

The issue in these two cases was whether television and the feeding frenzy of reporters can make a trial inherently unfair; the Supreme Court clearly answered yes. The legal issues are complex and remain highly controverted. The root question, in a sense, is an old one. The press—television news most especially—has vastly increased the sensation-power of these cases. Moreover, as we have seen, the theory of jury function too has changed; while the media now reach into every home, legal theory has refined the concept of a virginal jury to its highest point. These two social facts, quite obviously, can collide; and in cases like Sam Sheppard’s, they did. In 1981, in Chandler v. Florida,65 the Supreme Court put a fence around Estes and similar cases: The “risk of juror prejudice in some cases does not justify an absolute ban on news coverage of trials,” including coverage by the “broadcast” media.66 Thus television won a place, even though a bit grudgingly, in the courtroom; and there it remains, feeding on celebrity trials (and trials it makes into celebrity trials), to this day.

The Insanity Defense

In the twentieth century, the insanity defense underwent important changes. Throughout the first half of the century, psychiatrists and jurists kept up a drumbeat of criticism against the standard “tests,” especially the McNaghten rules. These rules, it was said, were narrow and unscientific; they ignored the progress of psychiatric medicine. In New York, where the McNaghten rules were embalmed in statute, the court of appeals, in 1928, affirmed the conviction of Moran, a cop-killer, even though he was a “psychopathic inferior,” a “man of low and unstable mentality, and, in all probability, a sufferer from epilepsy.” After all, he “knew the nature and quality of the act, and knew that the act was wrong”; that was all that the law of New York required.67

The insanity defense is and has been controversial. The noise of the arguments would lead one to think that the defense was an everyday affair, that shocking numbers of dangerous psychopaths were let loose on the street, or put in hospitals, instead of jails (where they presumably belonged). In fact, the defense was rarely used, and was rarely successful. In Illinois, in the years 1924 through 1927, there were forty findings of insanity among 14,690 defendants accused of murder, assault with intent to murder, rape, assault with intent to rape, and other crimes. In three additional cases, the defendant was insane at the time of the crime, sane at the time of trial. In only four of these forty-three cases did the prosecution oppose the verdict of insanity; presumably the other thirty-nine defendants were so obviously crazy that the prosecution saw no point in arguing.68

In some states, courts (as they often do) simply nibbled away at the rules,