Pretrial publicity's limited effect on the right to a fair trial

Trials of Boston Marathon bombing and Colorado movie shooting suspects likely to bring up debate again
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AP Photo by Steven Senne

Defense attorneys for Robel Phillipos, who is charged with lying to authortities investigating the Boston Marathon bombings face journalists in front of federal court in Boston.

When criminal cases gets media attention, trial courts may curtail the amount of pretrial publicity by imposing gag orders, restricting media reporting or closing courtrooms entirely.

The tension between pretrial publicity and conducting fair trial tests the abilities of trial courts. Defendants have important constitutional rights, but open courts are also an integral part of the American justice system.

The upcoming proceedings in the cases of alleged movie shooter James Holmes and suspected Boston marathon bomber Dzhokhar Tsarnaev are likely to attract a similar debate over the nature of pretrial publicity.

The Colorado theater shooting galvanized national attention, and the manhunt for Tsarnaev was broadcast live, with contributions from private citizens on social media. The attention it garnered as a public spectacle within Boston was unprecedented.

Trial courts have a broad array of tools at their disposal to ensure that all interests are served in cases like these, and different courts handle the issues differently.

Large jury pools rarely become completely partial because of media coverage, and the effects of publicity have very little impact on juries in practice, according to empirical studies and court opinions. Trial courts’ imposition of secrecy can be an overreaching solution in these instances.

AP Photo by RJ Sangosti (The Denver Post)

Colorado theater shooting suspect James Holmes and defense attorney Tamara Brady appear in district court in Centennial, Colo. for his arraignment.

The Constitution’s Sixth Amendment gives criminal defendants the right to a trial by an impartial jury. The Constitution also provides that those trials be held in the state where the crimes were committed.

The Supreme Court has ruled that proceedings may be transferred to a different location, at a defendant’s request, if local prejudices would prevent a fair trial.

Courts may transfer cases at their discretion, and high-profile cases have been split on granting a defendant’s transfer request. The trial of Oklahoma City bomber Timothy McVeigh was moved to Denver, but transfer requests were denied in the prosecutions of the 1993 World Trade Center bombings and the prosecution of John Walker Lindh, known as the American Taliban.

In the trial of former Enron president Jeffrey Skilling, the Supreme Court framed the question fundamentally: “When does the publicity attending conduct charged as criminal dim prospects that the trier can judge a case, as due process requires, impartially, unswayed by outside influence?”

The Supreme Court has overturned convictions in cases where media coverage overran the courtroom and disrupted the case, but those extreme cases are rarely applicable to ordinary coverage.

Juror exposure to news accounts of a crime, the Supreme Court has held, does not by itself deprive a defendant of due process rights. In the Skilling case, the Court said, “Prominence does not necessarily produce prejudice, and juror impartiality, we have reiterated, does not require ignorance.”

This built on earlier precedent where the court said, “pretrial publicity—even pervasive, adverse publicity—does not inevitably lead to an unfair trial.”

Secrecy in courts

Despite the clear holdings from the Supreme Court that pretrial publicity rarely merits secrecy, trial courts attempt to limit access and reporting on pretrial matters. Trial judges are concerned that such publicity affects defendants’ right to a fair trial.

From a top-level view, the way courts deal with these concerns can vary greatly, said Jon Bruschke, a communications professor at California State University, Fullerton, who has studied pretrial publicity and co-wrote a 2005 book on the subject.

Bruschke called the courts’ approach to pretrial publicity “totally incoherent,” adding that “different circuits rule different ways and it’s very rare to see a venue changed or a jury sequestered. Courts want to avoid costs.”

This cost-avoiding can lead courts to limit the perceived effect of pretrial publicity in other ways, including outright bans on media reporting and gag orders.

The Colorado case of James Holmes touched on many of these concerns. Holmes is accused of killing 12 people and injuring 58 more after he allegedly opened fire on a crowded theater in July 2012.

When the case proceeded, Judge William Sylvester in Arapahoe County District Court ordered that no cameras or audio recordings were allowed, in a preliminary hearing during which charges were formally filed against Holmes.

Sylvester issued a sweeping gag order to limit pretrial publicity, and further prohibited the University of Colorado from disclosing any information about Holmes under Colorado open records law. The order directed toward the university was kept secret for three days before being made public.

All documents in the case were initially sealed as well, but bits and pieces of information have been unsealed over time, in response to motions for unsealing by media organizations. Sylvester eventually removed the university from the gag order, but the rest remained in force.

In February, attorneys for the city of Aurora asked Sylvester to lift or modify the balance of the gag order, arguing it was not needed anymore because details of the case had emerged in a preliminary hearing.

Sylvester denied the request, keeping limits on what police, city officials, and lawyers could say about the case. The city has accordingly denied interview requests from the media and has been unable to present to other law enforcement agencies lessons learned from its response to the shootings.

“Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved,” Sylvester’s order said.

The Holmes case is still in its pretrial phase.

Other cases

Other cases in the past year that have attracted widespread public attention demonstrate the varying approaches courts take to dealing with pretrial publicity.

A protective order drew national attention in October in a Maine case where Alexis Wright was accused of running a prostitution operation out of a Zumba studio.

The order would have limited disclosure of discovery materials and restricted the attorneys’ ability to speak to the media.

The court later released the list of men charged with hiring a prostitute, but a gag order was placed on attorneys discussing the case pending the conclusion of jury selection.

Wright eventually pleaded guilty and some clients have pleaded guilty and paid fines, while investigation of other clients continues.

An Atlanta judge reacted sternly in denying prosecutors’ efforts to broaden a gag order in an Atlanta Public Schools cheating case.

There, 35 public school employees were indicted in April in connection to a widespread campaign of falsifying student test results. The defendants were prevented from speaking publicly about the case, as a condition of district attorney Paul Howard lowering their bail bond amounts.

The Atlanta Journal-Constitution and WSB Channel 2 Action News then asked the court to lift the gag orders, calling them “inherently coercive.”

“A defendant should not have to choose between their First Amendment rights or jail,” Tom Clyde, an attorney for the news organizations, said in an April e-mail to the Reporters Committee.

The gag orders were entered without a hearing or presentation of evidence about the effects of pretrial publicity in the case.

As the case proceeded, Howard’s office sought to expand the gag order to cover defense attorneys, but Fulton County Superior Court Judge Jerry Baxter rebuked the effort.

“Do ya’ll believe in the concept of presumption of innocence?” Baxter said to the district attorney in court, according to a news report from The Fulton County Daily Report. “These folks have been vilified and tried in the court of public opinion and your office has pretty much led the charge.”

Baxter lifted the gag order, and also objected to how the district attorney’s office tied a lower bond to the defendants’ public silence. “So they can either post several million dollars or agree not to talk about the case,” Baxter said. “I’m striking that ... Ya’ll don’t want to make me mad, do you?”

Pretrial proceedings are ongoing.

A judge also denied a proposed gag order in the racially charged case of George Zimmerman, who faced second-degree murder charges in the February 2012 shooting death of Trayvon Martin.

Prosecutors first attempted to seal court records and close hearings in October 2012, which were denied by (Fla.) Circuit Judge Debra S. Nelson.

Prosecutors then sought a gag order, their second after an April 2012 effort was denied. They claimed the case had “an inordinate amount of media coverage” and it would be “difficult to find jurors who have not been influenced by media accounts of the case.”

A coalition of more than a dozen media organizations opposed the order, and Nelson agreed with the media in denying the proposed gag order. The prosecutors had not shown any prejudicial effect of media coverage, Nelson’s order said.

Jury selection in the Zimmerman trial is scheduled to begin June 10.

A Louisiana federal court in April denied two ex-cops’ attempt to change the venue in their retrial on charges stemming from a post-Katrina deadly shooting. Despite the extensive media coverage, the judge held that thorough jury selection procedures would be adequate to identidy and remove prejudice.

The minimal effects of publicity

Requests to limit pretrial publicity, whether coming from a prosecutor or defendant, often argue that the broad scope of pretrial coverage means that potential jurors will draw their own conclusions about the defendant based on media coverage, not evidence vetted by and arguments made in a procedurally oriented court of law.

Although studies using mock trials have found otherwise, in practice, prior coverage of a case does not have much effect on juries, Bruschke said. This was the major focus of his book, Free Press Versus Fair Trials, co-authored by William E. Loges, a communications professor at Oregon State University.

“It’s not like [juries] hear a bunch of negative publicity about a defendant and that colors it,” Bruschke said.

In the Zimmerman case, Judge Nelson in particular was unpersuaded by the prejudicial publicity argument, finding no evidence or indication of “an overriding pattern of prejudicial commentary that will overcome reasonable efforts to select a fair and impartial jury.”

Nelson also pointed to other alternatives, such as moving the trial, having more intensive jury selection, and giving specific instructions to jurors, once chosen, to avoid public commentary on the case.

Entrusting the jury to make a decision based on the evidence, not on publicity, is at the heart of high-profile criminal cases.

Giving a jury the first look at the evidence is beneficial, Bruschke said, and there are obvious cases in which publicizing certain information could affect a case and sway a jury outside a courtroom. In most cases, though, “there doesn’t seem to be very much reason to be afraid of this,” he said.

“I would err on the side of releasing information” when publicity is contrasted with secrecy, Bruschke said.

Bruschke also downplays the risks associated with public exposure for a defendant accused of particularly heinous crimes. Data show that conviction rates are very high once a defendant is charged with a crime.

Many defendants have fewer resources at their disposal and cannot as frequently conduct independent investigations, but a highly publicized case could benefit a defendant, he said. With increased publicity, a potentially overworked public defender could devote more time and resources toward mounting a better defense.

“If the world is watching, anything helps the defendant.”

Impartiality persists

Jurors can come from pools that cover entire cities or metropolitan areas. To suggest that pretrial publicity entirely prevents an impartial jury from being convened literally suggests that 12 eligible people in an entire jury pool cannot be found impartial.

Researchers and the Supreme Court have concluded that big jury pools largely skirt the problem of jury bias due to publicity. Even with the explosive expansion of social media, especially on platforms like Twitter and Reddit, this is unlikely to change.

The cases with the most saturated coverage are rare. Bruschke estimates that eight or nine cases a year are a “national media splash,” and for all others, “it’s not going to be hard to find 12 people who haven’t paid attention to it.”

The proliferation of social media won’t change that, he said, pointing to media coverage in his Southern California home area. There are fewer media stories about crime than there were rapes and murders reported, and it is very rare for run-of-the-mill crimes to get media coverage. “I don’t think social media changes that much,” Bruschke said.

Bruschke cited the case of Nick Adenhart, a pitcher for the Los Angeles Angels of Anaheim, who was killed in 2009 when a drunken driver, Andrew Thomas Gallo, crashed into the car in which Adenhart was a passenger.

The case attracted significant local media coverage, including fan- and team-generated memorials for Adenhart. Despite the local attention, it was “no problem to find 12 people” qualified to serve on a jury in Gallo’s murder trial, according to Bruschke.

The Supreme Court used similar analysis in Skilling’s case, observing that more than 4.5 million jury-eligible people lived in the Houston area at the time of Skilling’s trial. “Given this large, diverse pool of potential jurors, the suggestion that 12 impartial individuals could not be empaneled is hard to sustain,” the court said.

Ironically, this was further supported by Skilling’s own survey, which found that approximately two in three potential jurors in the entire Houston area had either never heard of Skilling or had no opinion of him.

This surveyed impartiality in the Skilling case came despite the former executive’s protestations that “the community passion aroused by Enron’s collapse and the vitriolic media treatment” directed at him tainted the jury pool.

The court applied the same logic in cases in Las Vegas and the District of Columbia, where it held that a jury pool in the hundreds of thousands or millions nearly eliminated the chance of jury prejudice.

The way forward

Thanks to the pervasiveness of the Internet, certain criminal cases attract an intimate level of coverage never before seen in the American legal landscape. Courts must vigilantly account for the new challenges that this attention causes, keeping in mind the constitutional rights of all criminal defendants.

Secrecy, however, has shown to be a questionable remedy at best. Publicity seemingly has little compromising effect on a defendant’s right to a fair trial, and jury pools tend to maintain their impartiality even in the face of conclusory, incendiary coverage of defendants.

Trial courts have broad power to regulate and control the proceedings before them, and a whole host of diligent measures are available to them to preserve important constitutional rights while still conducting proceedings transparently.