September 22, 2003
by Christopher Dunn — Capital prosecutions often arise out of horrific crimes that spawn media coverage that saturates a community with inflammatory and oftentimes inaccurate information about the accused. While the media and public have important constitutional rights to disseminate and receive information about crimes, the accused have an equally important right to be tried by juries that have not been tainted by prejudicial, pretrial publicity. Moreover, the impartiality of juries -- in fact and in appearance -- is a lynchpin to the legitimacy of our criminal-justice system. The New York Court of Appeals today hears arguments in a case that will force it to consider the extent to which capital defendants in New York really do have the right to a trial free of adverse publicity. That issue is presented in People v. Cahill, just the second case in which the court has faced an appeal of a death sentence under New York’s new death-penalty statute. Surprisingly, given the concentration of major media in New York, the Court of Appeals has rarely addressed the difficult constitutional issues raised by adverse pretrial publicity, and even decisions from the Supreme Court of the United States are sparse. Today’s case therefore provides the court with an important opportunity to set clear guidelines for lower courts that are facing change-of-venue motions in light of substantial, pretrial publicity, whether in capital cases or otherwise. And in developing these guidelines, the Court should consider the extensive professional studies and standards that address the impact of pretrial publicity on fair trials. The Crime and the Publicity As usually is true in capital cases, the crime in which James Cahill was involved was heinous. Early in the morning of April 21, 1998 Mr. Cahill, in the midst of a bitter separation from his wife Jill, attacked her with a baseball bat in their home in the Syracuse area while their two young children were in the house. Though she managed to survive the assault, Mrs. Cahill was left hospitalized for months with serious head injuries. Mr. Cahill then showed up at the hospital on October 28 and poisoned her with cyanide, a second attack that killed her. Intense publicity commenced immediately after the initial April 1998 assault on Jill Cahill and continued virtually unabated for over a year and until the eve of jury selection in July 1999. The pervasiveness of that publicity -- which totaled approximately 93 newspaper stories and 289 television broadcasts in the year between the initial assault and the commencement of trial -- and its damaging impact on the jury pool was evidenced by the fact that 86% of potential jurors revealed in voir dire that they knew of the case as a result of the publicity and 52% admitted that they had gone so far as to express an opinion (never mind form one) about the guilt of Mr. Cahill. Notwithstanding this, the lower courts denied two motions by Mr. Cahill to change the location of his trial, and that trial then took place in August 1999 in the same community that had been deluged with press accounts about the defendant, his wife, and their two young children. Mr. Cahill was convicted and, following a penalty proceeding, was sentenced to death on August 20, 1999 -- the same day the Appellate Division issued a summary order rejecting his second request for a change of venue. Mr. Cahill’s appeal -- which is mandatory and proceeds directly to the Court of Appeals -- brings into play three discrete sources of law. First there is section 230.20 of the Criminal Procedure Law, which generally governs change-of-venue motions and which provides in relevant part that venue should be changed upon a showing “demonstrating reasonable cause to believe that a fair and impartial trial cannot be had” in the original county. Second, in the specific context of capital prosecutions, section 27 of the death-penalty statute requires the Court of Appeals to determine whether any death sentence “was imposed under the influence of passion, prejudice, or any other arbitrary or legally impermissible factor,” a mandate that may well encompass prejudicial, pretrial publicity. Finally, all prejudicial-publicity, change-of-venue motions are subject to the mandate of the Sixth Amendment of the United States Constitution that “[i]n all criminal prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial jury.” In resolving how these three provisions interact, the Court of Appeals will be writing on a relatively clean slate, given the few times it and the Supreme Court have visited these issues. The Absence of Case Law In New York The sole capital case in which the Court of Appeals has even discussed change of venue in light of adverse, pretrial publicity is People v. Culhane, a 1973 death-penalty case in which the Court ruled on the propriety of certain jurors being seated given their exposure to adverse, pretrial publicity. According to the Court’s opinion, the crime and the subsequent legal proceedings “received considerable exposure in the local media.” When the original trial resulted in a hung jury, a second trial took place approximately two years after the crime, during which time it was undisputed that the case “was frequently discussed on the local radio stations and was the subject of over 50 articles in the local newspaper.” As a result of this coverage, the record revealed that 81% of potential jurors questioned had “some knowledge of the case” and “several of them had formed opinions as to the [defendant’s] guilt.” On the basis of voir dire that revealed that jurors had been seated even though they had been tainted by this adverse pretrial publicity, the court vacated the conviction and death sentence. Though the ruling in Culhane concerned the issue of juror qualification rather than change of venue, the Court concluded its decision with a discussion of venue that bears directly on the appeal in Cahill. Specifically, the Court observed,
It should be noted that as with so many other cases, the problem encountered with jury selection is inextricably linked to the problem of venue. The media saturation in and of itself is somewhat prejudicial since: “The prejudice to the defendant is almost certain to be as great when that evidence reaches the jury through news accounts as when it is a part of the prosecution’s evidence.” No matter how desirable it may be, it is unrealistic to expect and require jurors to be totally ignorant prior to trial of the facts and issues in certain cases. Nevertheless, given the very localized and incessant nature of the prejudicial publicity surrounding this case, it probably would have been advisable and fairly easy to avoid this problem by transferring the case to a nearby venue in the first instance.
The one case in which the Court of Appeals has ruled on venue in light of adverse, pretrial publicity and squarely addressed the substantive merit of the claim is its 1969 decision in People v. DiPiazza. There the Court affirmed denial of a venue-change motion in a noncapital case in which “less than 25% [of potential jurors] expressed an opinion as to the guilt or innocence of the defendant,” and, according to the Court, the “pretrial newspaper accounts were surprisingly objective.” Taken together, Culhane and DiPiazza mark two points of reference, but they do not establish clear doctrinal standards governing these disputes nor do they specify the extent to which the Court has been construing section 230.20 of the Criminal Procedure Law as opposed to federal constitutional guarantees. Moreover, the Court has never expressly taken into account the unique concerns that capital cases raise, including the extent to which the “passion, prejudice” provision of section 27 of the death-penalty statute bears on the matter of venue. Sparse Supreme Court Law The Supreme Court has addressed the specific question of the circumstances in which a change of venue must be granted in the face of adverse, pretrial publicity in only five cases, and those cases provide minimal guidance. Its seminal case is Irvin v. Dowd, a 1961 decision in which the Court vacated the death sentence imposed on a defendant tried in the aftermath of extensive pretrial publicity. In Irvin the Court noted that the advent of mass media made it likely that many jurors would possess some information about a case from the media and that such knowledge alone would not warrant a change of venue. Rather, according to the Court, “the test is whether the nature and strength of the opinion formed are such as in law necessarily . . . raise the presumption of partiality.” Given this standard, the Court readily concluded that it was error to deny the defendant a change of venue, given what the Court described as a “barrage of newspaper headlines, articles, cartoons, and pictures [that] was unleashed against [the defendant] during the six or seven months preceding his trial,” given that voir dire revealed that 90% of potential jurors polled entertained an opinion about the defendant’s guilt, and given that eight of twelve jurors actually selected for trial thought the defendant was guilty. In its most notorious change-of-venue case, Supreme Court’s in 1966 ruled that the conviction in the sensational trial of Samuel Sheppard for the murder of his wife was unconstitutional because the judge had failed to take any measures -- including granting the defendant’s motion to change venue -- to counter the massive pretrial publicity that preceded the trial. In vacating Sheppard’s conviction, the Court held that it was unnecessary for the defendant to make a showing of actual prejudice and instead ruled that it was sufficient to assume that prejudice would follow from the “totality of the circumstances” of the publicity in that case. And that publicity, as described by the Court, unquestionably was extraordinarily prejudicial in its substance and dissemination and in the media’s presence in the courtroom. Since the 1960's, the Court has revisited the issue of adverse, pretrial publicity and venue just twice, and in both cases held that no change of venue was required. In 1975 the Court held that a change of venue was not necessary in a case in which the adverse publicity had appeared almost entirely in a period that ended seven months before jury selection and was “largely factual in nature.” Nine years later, the Court rejected an adverse-publicity, change-of-venue claim in a case in which most of the adverse publicity had occurred nearly four years before the trial in question and where the publicity in the year and a half prior to the trial averaged less than one article a month in each of the two local papers and “many of these were extremely brief announcements of the trial dates and scheduling such as are common in rural newspapers.” Sources of Guidance Decisions from the Supreme Court and the Court of Appeals thus provide little in the way of meaningful guidance for approaching the complicated issue of balancing the free speech rights of the press and public with concern over the rise in media coverage of crimes and trials, the impediments this creates to fair trials, and the threat such coverage poses to the integrity of the criminal-justice system. For more than forty years, however, the legal community has been grappling with this vexing problem, and as a part of this effort New York State has adopted disciplinary rules concerning pretrial statements by lawyers, which are based on rules originally promulgated by the American Bar Association. In addition the Judicial Conference of the United States, the National District Attorneys Association, and the United States District Court for the Southern District and for Eastern District have endorsed or adopted similar restrictions in an effort to protect defendants from the impact of prejudicial publicity. These professional standards -- and the considerable studies on which they are based -- can be of enormous assistance to the Court of Appeals in deciding the case before it today because, unlike the case law, they identify specific types of publicity that are recognized as being particularly prejudicial and empirically evaluate the effectiveness of remedies traditionally employed to counter prejudicial, pretrial publicity. The lessons to be drawn from these standards and studies are straightforward:
  1. adverse, pretrial publicity has a real impact on jurors;
  2. particularly prejudicial is publicity about a defendant’s character or reputation, about plea negotiations, about statements or confessions by the accused, about test results or a defendant’s refusal to take a test, about evidence to be introduced at trial, and about opinions of guilt or innocence;
  3. the closer the publicity is to trial, the more prejudicial it is; and
  4. remedies such as voir dire and judicial instructions do little to negate the impact of pretrial publicity.
These considerations take on even greater weight in the Cahill case because the defendant has been sentenced to death. As the Court of Appeals noted in People v. Harris last summer when it vacated the first death sentence imposed under the new statute, “[D]eath is different,” which means the Court has a “unique set of appellate responsibilities” to assure that any death sentence is the result of a fully fair and impartial trial. The case before the court today thus offers it an important opportunity to develop clear and strong protections for assuring that death sentences are free from the taint of the adverse publicity that so often attends sensational crimes.