Opinion
No. 1:04-cr-186.
March 8, 2005
MEMORANDUM AND ORDER
Defendant Darrin T. Webb moves for a change of venue pursuant to FED. R. CRIM. P. 21(a) on the ground of prejudicial pretrial publicity. [Court File Nos. 36]. Defendant contends it is impossible to obtain a fair and impartial trial in Chattanooga, Tennessee. Citing Ritchie v. Rogers, 313 F.3d 948 (6th Cir. 2002), the defendant argues that the media coverage is so pervasive that the Court should presume there is prejudice against him in the Chattanooga area.
After reviewing the record, including the exhibits submitted by the defendant, the Court concludes that the motion for change of venue is DENIED at this time.
FED. R. CRIM. P. 21(a) provides that upon a defendant's motion, the Court must transfer the criminal proceeding to another district "if the court is satisfied that so great a prejudice against the defendant exists in the transferring court that the defendant cannot obtain a fair and impartial trial there."
The courts distinguish between cases involving presumed prejudice — cases where the setting of the trial is inherently prejudicial — and those involving actual prejudice. Dobbert v. Florida, 432 U.S. 282, 303 (1977); Murphy v. Florida, 421 U.S. 794, (1975); Bell v. Hurley, 2004 WL 446224, **5-6 (6th Cir. March 10, 2004); Ritchie, 313 F.3d at 951-55; Nevers v. Killinger, 169 F.3d 352, 362-64 (6th Cir. 1999). In a few especially egregious cases, the Supreme Court overturned state court convictions obtained in a trial atmosphere utterly corrupted by media coverage and publicity. Sheppard v. Maxwell, 384 U.S. 333 (1966) (inherently prejudicial publicity saturated the community and a "carnival atmosphere" reigned at trial); Estes v. Texas, 381 U.S. 532 (1965); Rideau v. Louisiana, 373 U.S. 723 (1963); see also Williams v. Bagley, 380 F.3d 932, 945 (6th Cir. 2004), petition for writ of certiorari filed Feb. 18, 2005 (No. 04-88101); Ritchie, 313 F.3d at 952; Nevers, 169 F.3d at 362-63.
Pretrial publicity may be so extraordinarily pervasive and provocative in some criminal cases that prejudice is presumed, i.e. prospective jurors should be presumptively held unable to put aside preconceived notions about the case, and thus voir dire of the prospective jurors is insufficient and a change of venue is necessary. Presumed prejudice occurs in those cases where adverse pretrial publicity creates "such a presumption of prejudice in a community that the jurors' claims that they can be impartial should not be believed." Patton v. Yount, 467 U.S. 1025, 1031 (1984). The Sixth Circuit cautions that cases involving presumed prejudice are the rare exception rather than the rule. Bell, 2004 WL 446224, at *5; United States v. Gough, 173 F.3d 857 (Table, text at 1999 WL 183474, *5 (6th Cir. March 15, 1999)); DeLisle v. Rivers, 161 F.3d 370, 382-86 (6th Cir. 1998) (en banc); United States v. Chambers, 944 F.2d 1253, 1262 (Cir. 1991); Aldridge v. Marshall, 765 F.2d 63, 68 (6th Cir. 1985).
While there has been substantial publicity and media coverage about this case and Darrin Webb in the Chattanooga area, the instant case does not rise to the level of an exceptional presumed prejudice case. Defendant has not demonstrated that excessive, pervasive adverse publicity and media coverage have greatly excited or inflammed public passions against him to the extraordinary point that prejudice must be presumed. Cf. Patton, 467 U.S. at 1032-33; Bell, 2004 WL 446224, at **5-6; Kelly, 25 F.3d at 369. At this juncture, the Court finds that the pretrial publicity concerning defendant Webb does not make it impossible for him to obtain a fair and impartial trial in Chattanooga, Tennessee. Defendant has not met his burden of showing that the pretrial publicity is so inherently prejudicial that prejudice must be presumed.
The instant case falls into the second category of ordinary criminal cases where the defendants are required to make a showing of actual prejudice before the Court will order a change in venue. The correct standard to be applied for deciding the defendant's motion for change of venue on the ground of pretrial publicity does not depend on the amount or quantity of media coverage. Instead, it depends on whether the jurors can lay aside any preconceived opinions or impressions they may have formed and render an impartial verdict based solely upon the evidence presented at trial. Patton, 467 U.S. at 1035; Murphy, 421 U.S. at 800; Irvin v. Dowd, 366 U.S. 717, 723 (1961); Bell, 2004 WL 446224, at *6; Williams, 380 F.3d at 944; Ritchie, 313 F.3d at 962; Gough, 1999 WL 183474, at *4; Kelly v. Withrow, 25 F.3d 363, 368 (6th Cir. 1994); Chambers, 944 F.2d at 1262; United States v. Blanton, 719 F.2d 815, 830 (6th Cir. 1983). "[I]t is sufficient if a juror who has formed an impression as to guilt or innocence on the basis of pretrial publicity can lay that impression aside and render a verdict based solely on the evidence heard in court." Kelly, 25 F.3d at 368.
The right to trial by jury provided in the Sixth Amendment to the United States Constitution guarantees to the criminally accused a fair trial by a panel of impartial, unbiased jurors. Murphy, 421 U.S. at 799; Irvin, 366 U.S. at 722; Williams, 380 F.3d at 943-44; Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001); DeLisle, 161 F.3d at 382. Qualified jurors are not required to be totally ignorant of the facts and issues involved in the case. Murphy, 421 U.S. at 799-800; Irvin, 366 U.S. at 722-23; Bell, 2004 WL 446224, at *6; Williams, 380 F.3d at 944; Ritchie, 313 F.3d at 962; Gough, 1999 WL 183474, at *4; United States v. Bruce, 1996 WL 640468 (6th Cir. 1996); Kelly, 25 F.3d at 368; Blanton, 719 F.2d at 832.
In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.Irvin, 366 U.S. at 722-23 (citations omitted) (quoted in Murphy, 421 U.S. at 800, and Kelly, 25 F.3d at 368); see also Williams, 380 F.3d at 944.
There is no per se rule that a juror's mere exposure to media reports about a criminal case merits that juror's exclusion from the jury panel. Williams, 380 F.3d at 945; McQueen v. Scroggy, 99 F.3d 1302, 1319 (6th Cir. 1996); see also DeLisle, 161 F.3d at 382 ("[M]ere prior knowledge of the existence of the case, or familiarity with the issues involved, or even some preexisting opinions as to the merits, does not in and of itself raise a presumption of jury taint."). To merit disqualification of a juror, the media reports and pretrial publicity "must engender a predisposition or bias that cannot be put aside. . . ." McQueen, 99 F.3d at 1319; see also Williams, 380 F.3d at 945. Generally, a criminal defendant's Sixth Amendment right to an impartial jury is secured if the jurors attest under oath during voir dire that they can set aside any information they have obtained and render an impartial verdict based on the evidence presented at trial. Irvin, 366 U.S. at 722-23; Williams, 380 F.3d at 945; DeLisle, 161 F.3d at 382.
The appropriate time for the Court to consider a change of venue motion and determine whether defendant has actually been prejudiced by pretrial publicity and media coverage is during voir dire at trial. Through proper questioning of the jury panel, the Court can determine the extent of the prospective jurors' exposure to the publicity and what effect, if any, that it may have on their ability to render a fair and impartial verdict. Patton, 467 U.S. at 1033-35; Bell, 2004 WL 446224, at *6; Gough, 1999 WL 183474, at *4; Kelly, 25 F.3d at 368-69; Deel v. Jago, 967 F.2d 1079, 1086-87 (6th Cir. 1992); Chambers, 944 F.2d at 1262; Kordenbrock v. Scroggy, 919 F.2d 1091, 1102 (6th Cir. 1990); Blanton, 719 F.2d at 830-32; United States v. Johnson, 584 F.2d 148, 154 (6th Cir. 1978).
Accordingly, the defendant's motion for change of venue [Court File No. 36] is DENIED at this time.
SO ORDERED.