Change the Motion, Not the Venue: A Critical Look at the Change of Venue Motion

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I. INTRODUCTION

For a three week period in October and November of 2002, residents of the Washington, D.C. metropolitan area were paralyzed with fear, performing routine tasks--such as pumping gasoline or walking to work--only with significant caution. John Allen Muhammad and Lee Boyd Malvo, at the end of a sniper-shooting rampage unlike any in recent memory, killed ten people, wounded three others, and terrorized the entire metropolitan region. As the trial date neared, it became clear that the nature of these crimes had caused virtually all potential jurors to worry that they could have been victims of the shootings. (1)

On Christmas Eve 2002 in Modesto, California, a beautiful, expectant mother named Laci Peterson suddenly vanished. Her body and unborn child were discovered in April 2003 when they washed up on the San Francisco Bay shore. Laci's husband, Scott Peterson, became the principal suspect in the apparent murder. As the trial date neared, it became clear that many potential jurors had experienced profound emotional grief over the gruesome conclusion to the search for Laci. Thousands in the Modesto community had voluntarily searched parks and posted missing signs for a woman that many saw as an extended family member. (2) Leading up to trial, both cases elicited strong emotional responses in their respective communities. Both cases garnered immense pretrial publicity. Predictably, both cases commenced with defendants moving for a change of venue. (3)

The D.C. Sniper and Scott Peterson cases brought renewed attention to this powerful, yet understudied procedural device. The impact of venue on criminal verdicts first received widespread public attention in Powell v. Superior Court. (4) In Powell, a Ventura County, California jury acquitted four white police officers of criminal charges stemming from their videotaped roadside beating of an unarmed African-American motorist named Rodney King. (5) Commentators widely suggested that the trial judge's decision to move the trial from an urban and diverse venue in Los Angeles to a suburban and homogenous venue in Ventura County had an effect on the verdict. (6) The 45 deaths and $550 million in property damage that ensued as the city of Los Angles rioted in reaction to the Powell verdict underscored the need to better administer the change of venue motion. (7)

The public mistrust that resulted from Powell prompted a number of judicial and legislative reform proposals that called for consideration of the racial composition of venues during the choice of a new venue. (8) Judges and legislators alike, however, have yet to address the initial and more critical question of precisely how a judge should make a determination to change venue. In large part, this is due to the fact that no consensus exists regarding the meaning of an impartial jury, causing judges to pursue varied normative goals when determining the impartiality of jurors and, thus, when determining the need for a change of venue. This Note posits that a clearer articulation of the standard by which judges decide to change venue will ensure the motion's effectiveness and its legitimacy in the justice system.

Part II of this Note explores the historical and constitutional underpinnings of an impartial jury, which the Supreme Court has held must be composed of a fair cross section of the community. Part HI discusses the effect of pretrial publicity on juror decision-making in the modern media age by presenting a range of social science research and then describes appellate courts' less than adequate approach to policing such effects. Part IV introduces the highly discretionary change of venue motion process in the context of other remedial devices that courts have used to combat pretrial publicity. Part V emphasizes the need to assign relative weights to the various factors that judges consider in a change of venue decision. This section points out that inconsistent interpretations of prejudicial pretrial publicity have resulted in irreconcilable change of venue decisions. …