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Zimmerman Jury Selection and Pre-Trial Publicity

imagesOrlando, Florida, home of DisneyWorld, Sea World, Universal Studios and “trials of the century” hosts another notorious case in the national spotlight, Florida v. George Zimmerman. For the next 4 weeks or so Nancy Grace and the denizens of HLN, accompanied by a cadre of local legal eagles will be hosting the play by play in Zimmerman’s murder trial. Nightly, there will be discourses on self-defense and the concept of “stand your ground.”

Presently, the lawyers and judge are vetting potential jurors. The process has been bifurcated by the court. The initial screening focuses on the impact of the extensive pre-trial publicity in the case. The goal is to weed out from the larger universe of potential jurors those who have formed intractable opinions based on the news coverage to date. The remainder will move on to further questioning by the Court and counsel at a later date.images2

Since the inception of CourtTV, and thanks, initially to O.J. Simpson, Johnny Cochran and Judge Ito, criminal trials have moved from the pages of print news to become riveting TV. For those whose lives interfere with their ability to watch the day long courtroom coverage there are the nightly recaps. Like NBC’s coverage of the Olympics on all its related stations, Turner Broadcasting will devote much of its airtime on CNN, HLN and TruTV. Fortunately, the trial judge has ruled that the eventual jury will be sequestered to protect, in part, against news coverage impacting the process.

imagesvdBack to the selection of the jury, however. Pre-trial publicity is a reality that we have to deal with in sensational cases. Courts are charged with balancing a defendant’s right to a fair trial, guaranteed by the Due Process Clause of the Fourteenth Amendment, and the right to free press stemming from the First Amendment. Also in the mix is the Sixth Amendment right to a public trial.

The 1954 murder conviction of Dr. Samuel Sheppard was eventually overturned by the Supreme Court because of the circus-like atmosphere created by the massive publicity described as a “conviction obtained in a trial atmosphere that [was] utterly corrupted by press coverage” The Supreme Court has declined to adopt a presumption of prejudice from publicity except in the most extreme cases. “Jurors . . . need not enter the box with empty heads in order to determine the facts impartially. “It is sufficient if the juror[s] can lay aside [their] impression[s] or opinion[s] and render a verdict based on the evidence presented in court.”

One remedy to deal with pre-trial publicity is a change of venue. Cases that have attracted provincial media coverage can be moved to another locale where the publicity has not been as pervasive. In sensational cases this is less likely to be sufficient. The purpose of voir dire is to provide the parties with an opportunity to weigh whether to accept or challenge a potential juror. images3

The fact that someone has heard or read about the case is not sufficient cause to exclude a juror. Given the media thirst for criminal cases one would have to live in isolation to have not learned something about this case. The standard is not whether the juror has been exposed to publicity, but whether that person, as a result, has formed an opinion about the guilt or innocence of the accused to the extent that they would not be fair and impartial.

Trial judges are vested with considerable discretion in ruling on challenges based on a juror’s prior knowledge of a case. As the Court indicated in the 2010 appeal of Enron defendant, Jeffrey Skilling: “The United States Supreme Court’s decisions cannot be made to stand for the proposition that juror exposure to news accounts of a crime alone presumptively deprives a defendant of due process. Prominence does not necessarily produce prejudice, and juror impartiality does not require ignorance. Jurors are not required to be totally ignorant of the facts and issues involved; 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. A presumption of prejudice attends only the extreme case.”

Rich Meehan