Motion to Change Venue
Defendants’ September 2005 Motion to Transfer Venue
Summary by Kirsten Madsen
“We do not expect to try the case to jurors who are ignorant; indeed, an informed citizenry is essential to all aspects of governance including jury service. What we do expect is twelve people who can intellectually realize the importance of not prejudging the case—not only from the prospective [sic] of the prosecution, but equally if not more importantly from the point of view of the accused.” Order, Jan. 11, 2006, Docket No. 272.
In September 2005, nearly four years before this trial began, defendant W.R. Grace made a motion to transfer the venue of the case, and the individual defendants (Alan R. Stringer (now deceased), Henry A. Eschenbach, Jack W. Wolter, William J. McCaig, Robert J. Bettacchi, O. Mario Favorito, and Robert C. Walsh) also moved the court to transfer venue of this criminal prosecution. The Government issued a “Consolidated Response” to these two motions and the Court largely treated the separate motions as a single request in its Order. This summary will also address the two motions as a single request except where otherwise noted.
The U.S. Supreme Court has recognized that pretrial publicity can undermine a defendant’s Sixth Amendment right to trial by an impartial jury and the Federal Rules of Criminal Procedure provide the mechanism to request such a change. See e.g. Rideau v. Louisiana, 373 U.S. 723 (1963); e.g. Groppi v. Wisconsin, 400 U.S. 505 (1971); Fed. R. Crim. Pro. 21(a).
I. Defendants’ Motion
In simple terms, the Defendants argue that the extensive pretrial publicity has prejudiced the jury pool so extensively that in order to receive a fair trial, the trial should be held outside Montana. The motion is buttressed by a “significant sample of local media coverage, as well as several books and documentary films based on the events in Libby,” a telephone survey and expert analysis of media coverage. To succeed in this request the Defendants’ must show it would be impossible to seat an impartial jury.
Defendants’ make three arguments in support of their motion to change venue arguing first, that the “vast majority” of coverage is biased against the Defendants and goes “well beyond unadorned facts of the case to present the Defendants as knowing and intentional killers.” Second, the six years of coverage has inundated Montana with stories about this case and, finally, that coverage has caused public outcry against Defendants by raising local concerns and that bias is quantifiable. These three things—sensational coverage, six years of saturation, and a measurable attitude against Defendants—show it will be impossible for the Defendants to receive a fair trial “anywhere in Montana.”
The “significant sample” included over 1,900 newspaper articles and other written accounts from 1999 to 2005. Inflammatory and critical excerpts of that sample are laid out in Grace’s Motion. Defendants’ expert, Dr. Edward J. Bronson, said the coverage created a “story model” for the reader to process information through. The model “invariably portrayed [Grace] as the villain” in a story of good versus evil. Concerned about guilt by association, individual defendants fear conduct of Grace will be imputed to them. Another expert, Dr. Daniel J. Denis, analyzed the survey of potential jury members conducted by Dr. Donald Vinson, and found that those who saw or heard coverage 57% believed Grace was guilty and 55% believed the individual defendants were guilty, compared with a belief of guilt for 27% and 28% respectively among those who had not been exposed to the coverage. See Defendant W.R. Grace’s Motion, Sept. 9, 2005, Docket No. 192, Exhibit X.
II. Government’s Response
The Government opposes the motion arguing the Defendants’ did not show the prejudice is “so prevalent as to warrant a change of venue.” It argues that the media coverage is out-dated and “is not inflammatory but rather factual in nature.” It relies on the Ninth Circuit Court of Appeals repeated assertion that Defendants’ burden of proof is an extremely heavy one and is rarely achieved. Attacking the legal support proffered by Defendants’ the Government carefully distinguishes the cited authorities. The Government explains that “presumed prejudice” is exceedingly rare, that any analogy to the trial following the Okalahoma City bombings is unpersuasive because of the unique and harsh circumstances of that case, and that the remainder of Defendants’ authority involve violent crimes not present here.
The Government next dissects the media coverage, pointing out that 91.2% of the articles were published before the grand jury indictment in 2005, 67.5% were written in 2000 and 2001 and less than 3% written after the indictment refer to the criminal case. See Government’s Consolidated Response, Oct. 14, 2005, Docket No. 216. The Government argues reliance on this dated coverage is misplaced and Defendants themselves pull out only the most inflammatory portions of a limited number of articles.
The voir dire process, the Government urges, is the “proper means of assessing the extent of realized juror bias …” The Government provides several examples where impartial juries were seated in cases of “substantial public interest”—the prosecution of a murdered federal judge, the My Lai massacre case, the Watergate trial, and the Oliver North Iran-Contra scandal—and appeals courts upheld the denial of a motion to change venue.
III. Court’s Order
In its 54-page opinion the Court sets out the detailed legal structure and analyzes the arguments. Denying the motion, the Court said it was “convince[d …] that we are up to the task and that the citizens here will not decide the case based on news accounts.” In an early footnote, the Court discusses the conviction rate of the United States Attorney for Montana. “[I]n recent years the government has only been able to convict on all counts charged in 50 percent of the cases it tries.” Leaving the interpretation of those numbers open, the Court says “one certainty that stems from [the numbers] is that Montana jurors take their obligation seriously and they do believe in the presumption of innocence.”
Turning to its analysis after making 40 factual findings, the Court explains that because the motion comes before the start of jury selection, “the Defendants must demonstrate presumed prejudice. In the absence of proved presumed prejudice, the case must be tried in Missoula unless actual prejudice exists when a Missoula jury is impaneled.” The Court used the three factor analysis addressed in Daniels v. Woodford, 428 F.3d 1181 (9th Cir. 2005 quoting Ainsworth v. Calderon, 138 F.3d 787 (9th Cir. 1998)).
1. The Quantity and Timing of Pretrial Publicity.
2. The Nature of the Publicity (Factual v. Prejudicial).
3. Admissibility of Content of Media Accounts.
1. The Quantity and Timing of Pretrial Publicity.
As to the first factor, the Court found that the passage of time can mitigate the effects of media coverage. In this case, the pattern of publicity both with regard to print media and television coverage is not a barrage of recent publicity (occurring rather in 2000 and 2001) and does not show a wave of public passion. The Court said Dr. Bronson’s suggestion that the coverage would intensify as trial draws near “is wrong.” There is only a low level of sustained interest and many of the events “that triggered the isolated spikes in coverage have direct relation to this case.” See also Appendix C. The Court also notes that “[p]ublic interest in the case was not of sufficient intensity to fill the courtroom for the hearing on the motion to transfer venue,” and that lawyers outnumbered media and observers. Faulting the “sloppy and rushed” procedure used by Dr. Bronson, the Court said the methodology was incompatible with the presumed prejudice test, “which requires a barrage of publicity ‘immediately prior to trial.’” The story model assumes that readers will indefinitely retain the information, this suggestion was also rejected by the Court, saying instead that “case law directs courts to make the opposite assumption.” The Court concludes this factor weights against granting the motion.
2. The Nature of the Publicity (Factual v. Prejudicial).
To the second factor, the Court points out that factual news coverage tends to support denial of a motion to change venue. It is important to note, the Court began its analysis by carefully defining the five terms of art it would use to characterize news articles as factual, primarily factual, prejudicial, primarily prejudicial, and non-prejudicial. Reviewing coverage from the past year and a half, the Court finds “that the coverage of this case is predominately factual in nature.” The Court went publication by publication in the Missoula area discussing the coverage it printed and concluded that of the 55 total stories reviewed 50 were “primarily factual in nature.” Three of the five features and eight of ten editorials were “primarily factual in nature”. Seven of the ten letters to the editor were “primarily prejudicial” and 63 of the 79 total articles “are primarily factual in nature.” The Court conducted this same review of the television news coverage and found of the 42 stories in 2005, 29 were “primarily factual in nature.” This factor, the Court concludes, weighs against changing venue.
3. Admissibility of Content of Media Accounts.
Turning to the final factor of admissibility, the Court anticipates the many motions to be filed and decided in the coming months, and said “those rulings, along with other factors, will dictate the scope of admissible material in this case.” It found that one focal point of the media coverage, an audit, is irrelevant to the case and would not be admissible. The factor, the Court concludes, does not weigh either in favor or against denying the motion.
The Court focused the final pages of the Order on five “Other Considerations.” First, the effectiveness of voir dire in exposing bias; second, other available means of ensuring the selection of a fair jury; third, the risk of inconvenience should it prove impossible to seat a fair jury; fourth, the community’s interest in holding the trial in the state and district where the alleged offense occurred; and fifth, the age of defendants.
“I am not satisfied that so great a prejudice exists against the defendants that they cannot obtain a fair trial here. The events in Libby have been covered extensively in the local news media over the past six years. But it is not necessary that jurors be totally ignorant of the facts and issues involved in the case. What is required is a panel of impartial, indifferent jurors. I believe such a panel can be obtained in this district.” (Citations omitted.)
Readers can also view:
Defendant W.R. Grace’s Motion to Change Venue
Motion to Change Venue of Individual Defendants
Government’s Consolidated Response
Defendants’ Reply, Part 1
Defendants’ Reply, Part 2
Order, Part 1
Order, Part 2
Order, Part 3
Order, Appendix A: Summary of Print Media in Missoula Division Since June 2004
Order, Appendix B: Summary of 2005 Broadcast Media in Missoula Division
Order, Appendix C: Timeline of Print Media Coverage in Missoula Division from June 2004 to November 2005