Balancing Press Coverage and the Need for an Impartial Jury

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Robin Barton

On Dec. 24, 2002, Laci Peterson disappeared from her home in Modesto, California. She was 27, and eight months’ pregnant with her first child. Her husband Scott immediately became the focus of the subsequent investigation.

In April 2003, the remains of a woman and fetus were found in San Francisco Bay. DNA tests later confirmed that the remains were Laci and her unborn son. The police arrested Scott and charged him with their murder.

On Nov. 12, 2004, a jury convicted Scott of first-degree murder for Laci’s death and second-degree murder for the death of the fetus. The court sentenced him to death by lethal injection in March 2005.

Scott’s lawyer, Cliff Gardner, filed an appeal on July 5, 2012. The 400-page-plus brief raises several issues, including the impact the extensive media coverage of the case had on Scott’s ability to get a fair trial.

The brief begins by noting, “The Peterson trial generated an extraordinary amount of publicity. The trial judge noted that he had never seen anything like this case, and the prosecution itself conceded that this case generated more publicity than even the O.J. Simpson case.

The jury voir dire showed that virtually every person called as a potential juror had been exposed to publicity about the case—publicity that was very prejudicial to Scott. So the defense asked for a change of venue to a different county.

The court granted this motion, and the trial was moved to San Mateo County. However, the defense argued that pre-trial publicity had substantially tainted the jury pool there, too. But a request for a second change of venue was denied.

The appeal argues that this denial forced Scott “to pick a jury in a community that had plainly been saturated with negative publicity about the case.”

More than 96 percent of the entire jury venire admitted being exposed to this publicity, including every member of the jury eventually selected, says the brief.

The defense has a point. There was a ton of media coverage of the Peterson case. After all, the case was ripe for it.

It had all the elements of a compelling story. The disappearance of a beautiful, pregnant wife on Christmas Eve. Her attractive husband as chief suspect. The discovery that Scott was having an affair with a massage therapist named Amber Frey.

It’s no wonder that the press couldn’t get enough of the case and that most of the publicity was unfavorable to Scott

Scott’s appeals claim of media taint is hardly unique. But it’s getting more and more unlikely to be successful. And in many ways the claim begs the question:if Scott couldn’t get a fair trial in San Mateo County, where could he get one?

In fact, that’s what the trial court said when it denied the second change of venue motion.

The court noted the “pervasive and widespread” publicity, concluding that “there’s no showing that this case would receive any less publicity in another venue” and therefore switching venue would “do no good.”

The defense argues that Scott could have received a fair trial in Los Angeles County. The appeals brief notes that a survey indicated that this county had the lowest prejudgment rate in the state, the lowest percentage of people who refused to set aside their views that Scott was guilty and deserved to die, and the second highest percentage of people who were willing to set aside their prejudgments of the case.

But interestingly, the brief does not indicate what percentage of people in Los Angeles County had simply been exposed to publicity about the case—the key criticism made of holding the trial in San Mateo County.

I believe this omission reflects the likely reality that just as high a percentage of Los Angeles County residents had been exposed to the same publicity as the residents of San Mateo County.

Of course, pre-trial publicity can cut both ways. Defendants may use the press themselves to try to influence potential jurors.

In a case of art imitating life, a recent novel on many must-read lists illustrates the value of this very tactic.

In Gone Girl by Gillian Flynn, a husband is suspected in the disappearance of his pregnant wife. Faced with an onslaught of negative press coverage, he hires a high-profile attorney.

The attorney advises the husband to give an interview to a respected journalist on a network program, telling him, “The media has saturated the legal environment. With the Internet, Facebook, YouTube, there’s no such thing as an unbiased jury anymore. No clean slate. Eighty, ninety percent of a case is decided before you get in the courtroom. So why not use it—control the story.”

Given the sheer quantity of today’s media coverage, the speed of publication, and the easy access to the coverage on devices such as smart phones, the only way to prevent publicity from impacting criminal trials may be to ban it completely.

That is never going to happen, and would be inappropriate anyway.

Finding jurors who haven’t been exposed to any press coverage about a case may simply be unrealistic. Thus, the standards for an impartial jury may need to evolve,

Instead of focusing on getting people who know nothing about a case, switch to filling the jury with those who are willing and able to set aside what they’ve heard in the press and make a decision based solely on the evidence presented at trial.

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes readers’ comments.

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