Pretrial Publicity, Presumed Prejudice, and Change of Venue in Alaska: Public Opinion Surveys as a Tool to Measure the Impact of Prejudicial Pretrial Publicity

• Publication year: 2005

§ 22 Alaska L. Rev. 255. PRETRIAL PUBLICITY, PRESUMED PREJUDICE, AND CHANGE OF VENUE IN ALASKA: PUBLIC OPINION SURVEYS AS A TOOL TO MEASURE THE IMPACT OF PREJUDICIAL PRETRIAL PUBLICITY

Alaska Law Review
Volume 22
Cited: 22 Alaska L. Rev. 255

Pretrial Publicity, Presumed Prejudice, and Change of Venue in Alaska: Public Opinion Surveys as a Tool to Measure the Impact of Prejudicial Pretrial Publicity

RICH CURTNER, MELISSA KASSIER ^{[*] [**]}

I. INTRODUCTION

II. THE EVOLUTION OF PRESUMED PREJUDICE IN AMERICAN CRIMINAL JURISPRUDENCE

A. Act One: The Curtain Opens on the Media Circus

B. Act Two: Enter Presumed Prejudice

C. Act Three: Confusion Returns

III. THE WOEFUL INEFFECTIVENESS OF TRADITIONAL METHODS OF MITIGATING AGAINST JUROR PREJUDICE

IV. PRESUMED PREJUDICE IN ALASKA

A. The Application of Presumed Prejudice to High-Profile Cases by the Alaska Supreme Court

B. The Application of Presumed Prejudice to High-Profile Cases by the Alaska Court of Appeals

V. THE PUBLIC OPINION SURVEY AS AN INSTRUMENT TO MEASURE THE IMPACT OF PRETRIAL PUBLICITY

A. United States v. Cheely (Cheely II)

B. United States v. Maad

C. Why Public Opinion Surveys Work

D. The Cost: Wishful Thinking?

VI. CONCLUSION

FOOTNOTES

With a view toward the characteristics that make Alaska unique for change of venue analysis, this Article reviews how the criminal justice system in general, and Alaska in particular, has addressed the impact of prejudicial pretrial publicity on the right of a criminal defendant to a fair trial by an impartial jury. It provides an overview of the development of the concept of "presumed prejudice," as opposed to "actual prejudice" demonstrated in jury voir dire, and then explores why voir dire is never an appropriate tool for presumed prejudice review. This overview is followed by a critical look at the application of the principle of presumed prejudice in change of venue litigation in Alaska state courts.

[*pg 256]

Next, the Article examines two Alaska federal criminal cases in which a public opinion survey supported a motion for change of venue. The Article argues that a valid public opinion survey is an invaluable measure of the real impact of prejudicial pretrial publicity on a potential jury pool and should be utilized in high-profile cases when juror prejudice is likely. However, recognizing that this tool may not always be a viable option, the Article suggests an alternative method for exposing possible juror prejudice, and concludes that, at a minimum, trial courts, especially those in Alaska, should carefully and independently weigh the concept of presumed prejudice when considering the proper venue for sensationalized criminal cases.

I. INTRODUCTION

In October 19, 1990, Raymond Cheely was driving on the Glenn Highway in Anchorage, Alaska with two friends, Doug Gustafson and George Kerr. Gustafson was holding an HK-91 semi-automatic assault rifle in the front seat. ^[1] After an incident with another car on the highway, Gustafson fired a shot at the other vehicle, killing a passenger. ^[2] This incident marked Anchorage's first "drive-by" shooting and sparked a great deal of publicity. ^[3]

Cheely filed a motion for a change of venue outside of Anchorage. ^[4] In support of his motion, he submitted more than twenty-four newspaper articles that addressed the shooting, the arrests of the defendants, and the trial and conviction of co-defendant Gustafson. ^[5] The coverage described Cheely as a lead troublemaker ^[6] and group leader, ^[7] and both men were labeled "gun nuts." ^[8] Several articles stated that Cheely maneuvered the car so that Gustafson could get a clear shot, that police suspected Cheely hid the murder weapon, and that both men had threatened others not to testify against them. ^[9] The articles also discussed a burglary and theft that the two men were suspected of committing. ^[10] De[*pg 257] spite this intense media coverage, the court ruled that a change of venue was not required. ^[11] Cheely was convicted of second-degree murder and sentenced to sixty years imprisonment. ^[12]

The struggle to protect criminal defendants charged with sensational crimes from exposure to "the media circus" can be traced in American jurisprudence back to the trial of Aaron Burr in 1807. ^[13] The former Vice President had been charged with treason for planning the seizure of New Orleans and the invasion of Mexico in defiance of President Jefferson. ^[14] The charge of treason against Colonel Burr was the focus of the media and saturated Virginia newspapers, which informed the jurors in great detail of events and proceedings leading up to the trial. ^[15] The Virginia press described a purported grand plan of insurrection, where Burr would invade Mexico, detach the southwest from the United States, and form an empire stretching from the Mississippi Valley to Mexico City. ^[16]

Supreme Court Chief Justice John Marshall, who presided over Burr's trial, had to confront the effect of pretrial publicity on the prospective jurors. ^[17] The concern was and is that pretrial publicity will impair the Sixth Amendment guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." ^[18] In his opinion, Chief Justice Marshall recognized the importance of an impartial jury:

The great value of the trial by jury certainly consists in its fairness and impartiality. Those who most prize the institution, prize it because it furnishes a tribunal which may be expected to be uninfluenced by an undue bias of the mind . . . . Why do personal prejudices constitute a just cause of challenge? Solely because the individual who is under their influence is presumed to have a bias on his mind which will prevent an impartial decision [*pg 258] of the case, according to the testimony. He may declare that notwithstanding these prejudices he is determined to listen to the evidence, and be governed by it; but the law will not trust him. Is there less reason to suspect him who has prejudged the case, and has deliberately formed and delivered an opinion upon it? Such a person may believe that he will be regulated by testimony, but the law suspects him, and certainly not without reason. ^[19]

While Chief Justice Marshall was clearly concerned about protecting the defendant's express rights under the United States Constitution, he also recognized that both procedural and substantive justice can be compromised by an underlying, immutable fact of human nature: the opinions of others can inform and direct the decisions of jurors, often in subtle ways impossible to detect in a public courtroom. ^[20] Acknowledgment of this fact is an inherent component of the court's duty to ensure overall justice. ^[21] Otherwise, regardless of how fair the actual procedure and the subsequent results appear, the integrity of a jury verdict, and thus the judicial system, will always be questioned in an environment polluted by suspicions of bias. ^[22] Consequently, Chief Justice Marshall also realized that the trial court has a duty to independently assess, and possibly presume, partiality, even in spite of a juror's denial of bias. ^[23] The Chief Justice began a rigorous voir dire of prospective jurors on August 3, 1807. ^[24] Forty-eight prospective jurors were examined the first day, and forty-four were excused after admitting to being influenced by the newspapers. ^[25] After two weeks of voir dire, the panel of prospective jurors was exhausted, and a second venire was summoned. ^[26]

Chief Justice Marshall did not disqualify jurors for having information and opinions on the case, so long as the prepossession was a "light impression" that "may leave the mind open to a fair consideration." ^[27] This rule was applied both to views on the full case and views on an essential element of the charge. ^[28] Furthermore, regardless of what a juror claimed, it was up to the court to [*pg 259] determine the degree of the juror's foregone conclusion of the defendant's guilt. ^[29]

Unfortunately, Chief Justice Marshall's efforts to confront the bias of jurors did not distinguish between presumed and actual prejudice. ^[30] The only tool available to him to ferret out the impartiality of jurors was his own tenacious voir dire. ^[31] However, the sole use of voir dire is antithetical to the presumption-of-prejudice analysis. If pretrial publicity has so permeated a community such that prospective jurors cannot accurately assess the depth to which editorial journalism ^[32] has infiltrated their minds, voir dire of a jury panel from that community can be a futile exercise. Therefore, unless prejudice is presumed, the judge will be making a decision based upon information from untrustworthy sources and, as a result, the integrity of the process will be compromised. ^[33]

Nevertheless, in 1878, the Supreme Court entirely removed the concept of presumed prejudice from the inquiry into juror impartiality. In Reynolds v. United States, ^[34] the Supreme Court established that a finding of juror bias must be based on actual evidence that a juror had clearly formed a biased opinion. ^[35]

Eighty-eight years later, facing the "pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors," the Supreme Court in Sheppard v. Maxwell ^[36] accepted and...