Trial judges have discretion over whether to grant changes of venue and rely on the Supreme Court’s decisions in Estes v. Texas and Sheppard v. Maxwell to decide questions about prejudicial media publicity. Discuss the guidance of these two Supreme Court rulings and reach your own decision about the judge’s proper course of action.

Question

What will be an ideal response?

Answer 1

Answers should include the following points: (1) The Supreme Court has not provided a clear standard of review and has left it to the discretion of the judge, suggesting broadly (Sheppard v. Maxwell) that the judge must ensure the decorum of the court as essential to due process. No recent Supreme Court decisions address this question or provide guidance on how courts should deal with new media technologies and the lesser disruption and greater ubiquity. (2) Consequently, this question asks students to consider how to reconcile the fair trial/fair press question central to this chapter. The defendant deserves a fair trial free from prejudice. But the Court backed away from its early assumption that intense media coverage automatically produces juror prejudice, and has said that an unbiased juror need not be ignorant of the case
or the facts (Estes v. Texas). The Court, however, has also said that massive and pervasive publicity (such as here?) that permeates the locale can be presumed to prejudice jurors (Sheppard v. Maxwell). (3) In Sheppard v. Maxwell, the Supreme Court listed change of venue alongside voir dire as remedies to prejudice. Close scrutiny and challenges under voir dire are standard practice, yet change of venue is rarely used for pragmatic reasons not due to the potential for it to advantage justice. (4) In Sheppard v. Maxwell, the Supreme Court encouraged judges to use its list of “remedies” to avoid prejudice, and its language suggests that perhaps a “substantial likelihood to endanger a fair trial” or “likelihood to unfairly prejudice the defendant” standard might apply. (5) The First Circuit applied the much tougher “irreparable harm” standard. But at least theoretically a trial harm may always be repaired through a retrial. Therefore, no amount of publicity would ever reach the “irreparable harm” threshold, and a change of venue would never be warranted. However, since the Supreme Court suggested change of venue as a means to address prejudice, courts must be able to use it in some cases, so the First Circuit appears to be wrong in its test ... and perhaps in its outcome.