1 314 U.S. 252, 271 (1941).
2 See id.
3 See Laurie Nicole Robinson, Note, Professional Athletes—Held to a Higher Standard and Above the Law: A Comment on High-Profile Criminal Defendants and the Need for States to Establish High-Profile Courts, 73 Ind. L.J. 1313, 1313 (1998).
4 Id.
5 See id.
6 See id.
7 See Peter E. Kane, Murder, Courts, and the Press: Issues in Free Press/Fair Trial 63 (1986); Robinson, supra note 3, at 1313 (stating high-profile cases include the Amy Fisher case, the Lorena Bobbit case, and the Tonya Harding case).
8 See Kane, supra note 7, at 63. The Manson Family murders and the Rodney King beating are classic examples of cases that are high profile due to the bizarre or disturbing nature of the facts surrounding the case.
9 Robinson, supra note 3, at 1313; see Kane, supra note 7, at 63. Examples of this type of case include the following celebrity defendants: Sam Sheppard (he was a prominent local doctor); Mike Tyson; Robert Downey, Jr.; Jayson Williams; Sean “P. Diddy” Combs; and Snoop Dogg. Some cases, such as the O.J. Simpson case, have both heinous or sordid fact patterns and a well-known defendant. Thus, the lines between the three types of high-profile criminal cases are not always distinct. See Kane, supra note 7, at 63.
10 Kane, supra note 7, at 63.
11 See Robinson, supra note 3, at 1327. For example, the United States Supreme Court was both shocked and outraged by the inherent unfairness of Sam Sheppard’s murder trial caused by extensive media coverage surrounding the case. See Sheppard v. Maxwell, 384 U.S. 333, 355 (1966). The “media circus” surrounding the trial ultimately resulted in Dr. Sheppard’s first-degree murder conviction. See id.
12 See Robinson, supra note 3, at 1330 (“[I]t is important to remember that, at least for [O.J.] Simpson, the pretrial publicity ultimately inured to his benefit, as the jury acquitted him on both murder counts.”). Another such criminal defendant that seems to have benefited not only from the intense media coverage surrounding his case but also from his celebrity status is Sean “P. Diddy” Combs. See Marcus Errico, Puffy Not Guilty!, E! Online News (Mar. 16, 2001), at http://www.eonline.com/News/Items/0,1,7973,00.html. In 2001, a jury found Bad Boy records mogul Sean Combs not guilty of four counts of criminal gun possession and one count of bribing a witness despite a plethora of seemingly incriminating evidence presented against him over the course of a seven-week trial. Id.
13 See Robinson, supra note 3, at 1325. This Note acknowledges that pretrial publicity can also benefit a high-profile criminal defendant during a trial. See id. Nevertheless, this Note focuses only on how pretrial media coverage negatively impacts a defendant’s right to a fair trial. See infra notes 29–43 and accompanying text. Moreover, this Note recognizes that anonymity could help the prosecution in cases where the defendant could use his celebrity status to get special treatment from the jury. See Robinson, supra note 3, at 1325.
14 See Charles H. Whitebread & Darrell W. Contreras, Free Press v. Fair Trial: Protecting the Criminal Defendant’s Rights in a Highly Publicized Trial by Applying the Sheppard-Mu’Min Remedy, 69 S. Cal. L. Rev. 1587, 1588 (1996).
15 Robinson, supra note 3, at 1334.
16 Id.
17 Report of the Judicial Conference Committee on the Operation of the Jury System on the “Free Press—Fair Trial” Issue, 45 F.R.D. 391, 413 (1968), revised by 87 F.R.D. 519 (1980).
18 See infra notes 301–368 and accompanying text.
19 Fed. R. Civ. P. 10(a).
20 Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981); see Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 684–85 (11th Cir. 2001); S. Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712–13 (5th Cir. 1979).
21 See infra notes 301–368 and accompanying text.
22 See infra notes 29–122 and accompanying text.
23 See infra notes 123–180 and accompanying text.
24 See infra notes 123–180 and accompanying text.
25 See infra notes 181–210 and accompanying text.
26 See infra notes 211–278 and accompanying text.
27 See infra notes 279–300 and accompanying text.
28 See infra notes 301–368 and accompanying text.
29 See Robert S. Stephen, Prejudicial Publicity Surrounding a Criminal Trial: What a Trial Court Can Do To Ensure a Fair Trial in the Face of a “Media Circus,” 26 Suffolk U. L. Rev. 1063, 1063 (1992); Whitebread & Contreras, supra note 14, at 1588. The First Amendment of the United States Constitution states: “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” U.S. Const. amend. I. The Sixth Amendment provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.
U.S. Const. amend. VI.
30 See Whitebread & Contreras, supra note 14, at 1588.
31 Matthew D. Bunker, Justice and the Media: Reconciling Fair Trials and a Free Press 41 (1997).
32 United States v. Burr, 25 F. Cas. 49, 50 (Va. Cir. Ct. 1807) (No. 14,692).
33 Bunker, supra note 31, at 41.
34 Id. (“The presence of jurors precluded secret trials, secured the citizenry from venal judges, purchased testimony, or threatening officials, and protected them from other abuses by governments unconcerned with the liberties of its people.”); see David J. Bodenhamer, Fair Trial: Rights of the Accused in American History 32 (1992).
35 Bunker, supra note 31, at 41.
36 Id.
37 Id.
38 See id.
39 Burr, 25 F. Cas. at 50.
40 See Robinson, supra note 3, at 1334.
41 Id. at 1313.
42 Id.
43 See id. at 1334.
44 See Stephen, supra note 29, at 1084. In the federal corruption case against Providence Mayor Vincent A. Cianci Jr., United States District Court Judge Ernest C. Torres issued a gag order prohibiting the defendants, their lawyers, prosecutors, witnesses, potential witnesses, law-enforcement officials involved in the investigation, and court personnel from releasing information outside that in the public record. Tracy Breton, Operation Plunder Dome: Judge Acts to Silence All Talk in Case, Providence J.-Bull., May 16, 2001, at 1A. The judge put the gag order into effect until the final verdicts were entered; people caught violating the order would be held in contempt of court. Id. Judge Torres said that the purpose of the gag order was “to protect the rights of both the defendants and the United States to a fair trial before an impartial jury by prohibiting the kinds of extrajudicial statements and disclosures that, if widely disseminated, would be likely to threaten those rights and the integrity of the trial process.” Id. He further stated that: “The need for this order arises from the intensive media coverage of this case. . . . There have been a number of widely publicized disclosures and statements by individuals involved in this case which, if allowed to continue, would create a substantial risk of prejudicing the parties’ right to a fair trial.” Id.
45 See id.
46 See 384 U.S. 333, 361 (1966).
47 See id. at 338–39; Stephen, supra note 29, at 1071.
48 See Sheppard, 384 U.S. at 339.
49 See id. When Sheppard’s counsel tried to participate in this questioning, which was broadcast live, he was forcibly ejected by the coroner, who received cheers from the crowd. Id. at 340.
50 See Sheppard, 384 U.S. at 341.
51 See id. at 345. When jurors viewed the murder scene, they were accompanied by hundreds of reporter, onlookers, and a helicopter from which reporters took pictures. Stephen, supra note 29, at 1072–73. During sequestered deliberations, photographers took pictures of jurors for a local newspaper. Id. at 1073. Sheppard was subsequently convicted of second-degree murder. Id.
52 See Sheppard, 384 U.S. at 335.
53 See id. at 361–62.
54 See id. at 361.
55 See Stephen, supra note 29, at 1083.
56 See id.
57 Whitebread & Contreras, supra note 14, at 1590.
58 See 427 U.S. 539, 562 (1976).
59 Id.
60 See id. at 565.
61 Kane, supra note 7, at 33.
62 Id.
63 Id.
64 Id.
65 Id.
66 Kane, supra note 7, at 34.
67 Id.
68 Id.
69 See 427 U.S. at 613.
70 Id. at 562–63.
71 See id. at 565.
72 Id. at 569.
73 Id.
74 See Neb. Press, 427 U.S. at 569.
75 Whitebread & Contreras, supra note 14, at 1594.
76 See id.
77 See id.
78 See 449 U.S. 560, 566–83 (1981); Whitebread & Contreras, supra note 14, at 1595.
79 Chandler, 449 U.S. at 575.
80 See Whitebread & Contreras, supra note 14, at 1595.
81 See id.
82 See Stephen, supra note 29, at 1087.
83 Id.
84 See Whitebread & Contreras, supra note 14, at 1600.
85 Id.
86 Kane, supra note 7, at 65.
87 See 500 U.S. 415, 419–21, 431–32 (1991). Mu’Min involved a prisoner who murdered a storeowner during a prison furlough program. Id. The case received extensive prejudicial pretrial publicity. Id. Prior to the trial, the press reported the defendant’s juvenile record, parole rejections, and defendant’s suspected involvement in a prison beating. Id. The press often referred to defendant as a “convicted murderer,” “lustful,” and “not a model prisoner.” Id. The defendant was convicted of murder. Id. He appealed his conviction, alleging that his right to an impartial jury had been violated because eight of the twelve jurors admitted to having read or heard reports about the case prior to the trial. Id.
88 See id. at 430–31.
89 See id.
90 See id.
91 See id.
92 See Mu’Min, 500 U.S. at 430–31.
93 See Stephen, supra note 29, at 1090. In 1955, in Bianchi v. United States, the United States Court of Appeals for the Eighth Circuit affirmed defendant’s conviction where trial court carefully instructed the jury to remain impartial during their deliberations. See 219 F.2d 182, 191, 196 (8th Cir. 1955).
94 Stephen, supra note 29, at 1090.
95 See 497 P.2d 1121, 1133 (Cal. 1972), overruled by Hawkins v. Superior Court, 586 P.2d 916 (Cal. 1978), superceded by statute as stated in Nollins v. Superior Court, 74 Cal. Rptr. 697 (Cal. Ct. App. 1990); J. Edward Gerald, News of Crime: Courts and Press in Conflict 80 (1988).
96 See Sirhan, 497 P.2d at 1133 n.7.
97 See id. at 1133.
98 See Gerald, supra note 95, at 81; Stephen, supra note 29, at 1090.
99 See Stephen, supra note 29, at 1090.
100 See Whitebread & Contreras, supra note 14, at 1604.
101 Id.
102 See Sheppard, 384 U.S. at 361–62; Whitebread & Contreras, supra note 14, at 1604.
103 See Sheppard, 384 U.S. at 363; Whitebread & Contreras, supra note 14, at 1604. For example, in 1979, in Khaalis v. United States, the District of Columbia Court of Appeals commended the trial court for minimizing the effect of publicity by immediately sequestering the jury. 408 A.2d 313, 335 (D.C. 1979).
104 See 132 Cal. Rptr. 265, 319 (Cal. Ct. App. 1976); Kane, supra note 7, at 29.
105 See Manson, 132 Cal. Rptr. at 319; Kane, supra note 7, at 29.
106 Kane, supra note 7, at 29. Kane states that one example of the media publicity that continued during the Manson trial includes the prospective prosecution witness Virginia Graham. Id. Her testimony was particularly damaging to the defense. Id. All the lawyers were given a transcript of Graham’s intended testimony and were instructed by the judge not to reveal the contents of it to the media. Id. The full story of the testimony promptly appeared in the Los Angeles Herald-Examiner, which received the transcript from a member of the defense team. Id. Had the jury not been sequestered, it would have had the opportunity to read the testimony before it was offered in court. See id. at 29–30.
107 See Whitebread & Contreras, supra note 14, at 1604. The jury in the Manson murder trial was sequestered for a little over eight months with a total cost of $768,838. Id. The Manson trial began in June 1970 and ended in January 1971. Id. The O.J. Simpson jurors were sequestered for 266 days for a total cost of $2,985,052. Id. at 1612.
108 See id.
109 384 U.S. at 363; Douglas S. Campbell, Free Press v. Fair Trial: Supreme Court Decisions Since 1807, at 132 (1994).
110 See Whitebread & Contreras, supra note 14, at 1618–19.
111 Gerald, supra note 95, at 77.
112 See Stephen, supra note 29, at 1085–86.
113 Whitebread & Contreras, supra note 14, at 1604.
114 See 366 U.S. 717, 728–29 (1961).
115 See id. at 720.
116 See id.
117 See id. at 719–20.
118 See id. at 725.
119 See Irvin, 366 U.S. at 725.
120 See id. at 727.
121 See id. at 728.
122 See id. at 727–28.
123 See supra notes 44–122 and accompanying text.
124 See infra notes 126–180 and accompanying text.
125 See infra notes 279–300 and accompanying text.
126 Robinson, supra note 3, at 1339. Robinson drafted this note while a student at Indiana University School of Law—Bloomington. Upon graduation, Robinson became an associate in the New York office of Epstein, Becker & Green.
127 Id.
128 Id.
129 See id. The foundation of the high-profile court rests on the use of “specially trained high-profile judges.” Id.
130 See id. at 1340.
131 See Robinson, supra note 3, at 1340–41.
132 Id. at 1341.
133 Id.
134 See id.
135 Id.
136 Robinson, supra note 3, at 1342.
137 Id. Robinson demonstrates this proposal with the following example: “[I]f a certain singer elects to have her case heard by a high-profile judge and the defendant is the judge’s favorite musician, the state would be responsible for concluding that the judge has the potential for bias in that case.” Id.
138 Id.
139 Id. at 1343.
140 Id.
141 Robinson, supra note 3, at 1343.
142 Id.
143 Id.
144 Id. at 1344.
145 See id. at 1344–45.
146 Robinson, supra note 3, at 1344.
147 Id.
148 See Duncan v. Louisiana, 391 U.S. 145, 159 (1968).
149 See Robinson, supra note 3, at 1347.
150 See id. at 1327–28. Robinson explains that high-profile criminal defendants are often held to a higher standard in the criminal justice system because their celebrity status can often subject them to aggressive prosecution. Id. Also, when the high-profile defendant is a professional athlete, fame, fortune, and celebrity status impose a heavy burden on athletes to conform to the public’s image of “flawless human beings.” Id. at 1328. Because athletes, in addition to other sorts of celebrities, are considered to be role models for youths, they are sometimes held to a higher standard. Id. at 1327–28.
151 Id. at 1348.
152 See id.
153 See id. at 1349.
154 Whitebread & Contreras, supra note 14, at 1620. In Sheppard v. Maxwell, the United States Supreme Court held that Sheppard was denied his right to a fair trial because of the trial judge’s failure to protect him from prejudicial pretrial publicity. Charles H. Whitebread, Selecting Juries in High Profile Criminal Cases, 2 Green Bag 2d 191, 197 (1999); see 384 U.S. 333, 361–63 (1966). The Court said that the trial judge could have mitigated pretrial publicity by prohibiting:
extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters, such as the refusal of Sheppard to submit to interrogation or take any lie detector tests; any statement made by Sheppard to officials; the identity of prospective witnesses or their probable testimony; any belief in guilt or innocence; or like statements concerning the merits of the case.
Sheppard, 384 U.S. at 361; see Whitebread, supra, at 197. As noted by Whitebread, in Mu’Min v. Virginia, the United States Supreme Court “addressed whether a defendant has a constitutional right to ask content questions during voir dire.” Whitebread, supra, at 198; see 500 U.S. 415, 424–26 (1991). According to Whitebread, the Court held that:
the Sixth Amendment does not require a judge in a well-publicized case to inquire about the amount and content of the media reports that each potential juror may have observed. Rather, it is sufficient that the trial judge ask potential jurors whether they have formed an opinion because of the reports from outside sources. Unless the adverse publicity and media justify a presumption of prejudice, the juror’s declaration of impartiality may be believed.
Whitebread, supra, at 198; see Mu’Min, 500 U.S. at 424–26.
155 Whitebread & Contreras, supra note 14, at 1620.
156 See id.
157 See id.
158 See id.
159 See id.
160 Whitebread & Contreras, supra note 14, at 1621.
161 Sheppard, 384 U.S. at 362; see Whitebread & Contreras, supra note 14, at 1621.
162 Whitebread & Contreras, supra note 14, 1622.
163 See id.
164 See id.
165 See id.
166 Id.
167 See Whitebread & Contreras, supra note 14, at 1622–23.
168 Id. at 1623.
169 Id.
170 Id.
171 Id.
172 Whitebread & Contreras, supra note 14, at 1623.
173 Id.
174 Id.
175 See id. at 1624.
176 Id.
177 See Whitebread & Contreras, supra note 14, at 1624. In 1994, the United States Supreme Court upheld a court-ordered buffer zone prohibiting protestors from picketing, patrolling, congregating, approaching, or demonstrating within 300 feet of a women’s health center. See Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 759, 776 (1994).
178 Whitebread & Contreras, supra note 14, at 1624. According to Whitebread and Contreras, California is an example of a state that has a statute prohibiting people from attempting to influence a juror’s decision. Id. at n.219.
179 Id. at 1624.
180 Id.
181 See Robinson, supra note 3, at 1339; Whitebread & Contreras, supra note 14, at 1588–89.
182 See supra notes 126–180 and accompanying text.
183 See supra notes 126–180 and accompanying text.
184 See infra notes 301–368 and accompanying text.
185 See, e.g., Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 684–85 (11th Cir. 2001); Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981); S. Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712–13 (5th Cir. 1979).
186 Fed. R. Civ. P. 10(a); see Aware, 253 F.3d at 684.
187 Fed. R. Civ. P. 10(a).
188 Doe v. Frank, 951 F.2d 320, 322 (11th Cir. 1992).
189 Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 575–76 (1980); Stegall, 653 F.2d at 185.
190 Stegall, 653 F.2d at 185.
191 See Aware, 253 F.3d at 684–85.
192 See, e.g., Aware, 253 F.3d at 680–85 (attempting to proceed anonymously in lawsuit where woman alleged injury during course of abortion); Stegall, 653 F.2d at 181–82, 186.
193 Aware, 253 F.3d at 685.
194 See, e.g., James v. Jacobson, 6 F.3d 233, 240–41 (4th Cir. 1993) (holding that identification of parties by their real names in case where plaintiff’s children would be affected should yield in deference to sufficiently pressing needs for party anonymity); Stegall, 653 F.2d at 186 (allowing anonymity in suit filed on behalf of minors which involved plaintiff’s objection to school prayer); see generally Doe v. McConn, 489 F. Supp. 76 (S.D. Tex. 1980) (allowing plaintiff to proceed anonymously to protect his transsexuality due to social stigma involved in that area); Doe v. Gillman, 347 F. Supp. 482 (N.D. Iowa 1972) (allowing anonymity in suit challenging state welfare regulations conditioning AFDC assistance on recipients’ cooperation with prosecutions of spouses for nonsupport); Doe v. Shapiro, 302 F. Supp. 761 (D. Conn. 1969), appeal dismissed on other grounds, 396 U.S. 488 (1970) (allowing anonymity in suit challenging state welfare regulations conditioning assistance payments to illegitimate children on recipient-mother’s disclosure of father’s identity).
195 Aware, 253 F.3d at 684.
196 653 F.2d at 185.
197 Id. at 181–82.
198 Id. at 182.
199 Id. at 185.
200 Id.
201 See Aware, 253 F.3d at 685; Frank, 951 F.2d at 323.
202 Frank, 951 F.2d at 323 (quoting Stegall, 653 F.2d at 186).
203 Id.; see Stegall, 653 F.2d at 185–86.
204 See Frank, 951 F.2d at 323; Stegall, 653 F.2d at 185–86.
205 Stegall, 653 F.2d at 185.
206 Id. at 186. The Fifth Circuit allowed parties to proceed anonymously because the plaintiffs were children, the plaintiffs made a showing of threatened harm, the plaintiffs pointed to potential serious social ostracization based upon militant religious attitudes, and the case involved the fundamental privateness of religious beliefs. Id.
207 Victoria v. Larpenter, No. 00-T41960, 2001 U.S. Dist. LEXIS 5072, at *5–6 (E.D. La. Apr. 17, 2001).
208 Frank, 951 F.2d at 324; Victoria, 2001 U.S. Dist. LEXIS 5072, at *6.
209 Stegall, 653 F.2d at 184.
210 See Frank, 951 F.2d at 323; Stegall, 653 F.2d at 185–86; S. Methodist, 599 F.2d at 712–13.
211 Gag orders have been issued in several high-profile cases in recent years, including O.J. Simpson’s civil trial, the Timothy McVeigh case, the Paula Jones sexual harassment case against President Clinton, and a class-action lawsuit against tobacco companies in Florida. Breton, supra note 44 at 1A. Despite these gag orders, almost everyone in the country knew about those cases because the press was still able to report everything they learned about the defendants before the respective trials began. See id.
212 See Whitebread & Contreras, supra note 14, at 1607.
213 See Stephen, supra note 29, at 1084–85.
214 See id.
215 See Whitebread & Contreras, supra note 14, at 1607–08.
216 See Stephen, supra note 29, at 1084.
217 See In re Application of Dow Jones & Co. v. Simon, 842 F.2d 603, 608 (2nd Cir. 1988). To date, only the Second, Fourth, Ninth, and Tenth Circuits have upheld gag orders as constitutional. Whitebread & Contreras, supra note 14, at 1609. Those that have upheld gag orders on the trial participants have applied the less restrictive “reasonable likelihood” standard that requires only that the court evaluate whether it is “reasonably likely that the pretrial publicity will prejudice a fair trial.” Dow Jones, 842 F.2d at 610; see Whitebread & Contreras, supra note 14, at 1609 n.141.
218 Campbell, supra note 109, at 131; see Sheppard v. Maxwell, 384 U.S. 333, 360, 361 (1966).
219 Stephen, supra note 29, at 1084.
220 Campbell, supra note 109, at 131.
221 Breton, supra note 44, at 1A. In the federal corruption case involving Mayor Cianci mentioned above, the gag order issued prohibited everyone with a connection to the case from talking about:
the character, credibility, reputation, alleged prior bad acts or criminal record of a party or witness;’ the possibility of a guilty plea or any statement given by a defendant; the existence or results . . . of a lie-detector test given to a defendant; the identity, anticipated testimony or credibility of any prospective witnesses; any information given to the grand jury; and the contents of any documents filed under seal or sealed by the court or information about chambers conferences.
Id.
222 See Whitebread & Contreras, supra note 14, at 1610–11.
223 Id. at 1610.
224 Id. at 1611.
225 Id.
226 See id.
227 See Whitebread & Contreras, supra note 14, at 1611.
228 Stephen, supra note 29, at 1070 n.49; see also Newton N. Minow & Fred H. Cate, Who Is an Impartial Juror in an Age of Mass Media?, 40 Am. U. L. Rev. 631, 649–54 (1991).
229 See Robinson, supra note 3, at 1338. Justice Reardon commented that a reading of the fair trial cases does not provide “an adequate description of the endless days spent on voir dire at great private and public expense prior to the commencement of trial where everyone in attendance . . . is wrung dry in interrogations based on possible juror prejudice emanating from dangerous publicity.” Paul C. Reardon, The Fair Trial-Free Press Controversy—Where We Have Been and Where We Should Be Going, 4 San Diego L. Rev. 255, 264 (1967).
230 Whitebread & Contreras, supra note 14, at 1610.
231 Robinson, supra note 3, at 1335. “Dale W. Broeder, a staff member of the University of Chicago Jury Project, casts some doubts on the efficacy of voir dire. He conducted interviews with 223 jurors and most of the lawyers involved in 23 consecutive trials before a federal district court in the Midwest.” Walter Wilcox, The Jury Trial, in Free Press and Fair Trial: Some Dimensions of the Problem 77, 88 (Chilton R. Bush ed., 1970). From these interviews, Broeder set out the following points as evident: “(1) Voir dire is grossly ineffective as a screening mechanism . . . ; (3) Jurors often, either consciously or unconsciously, lie on voir dire; [and] (4) Voir dire is utilized much more effectively as a forum for indoctrination than as a means of sifting out potentially unfavorable jurors.” Id. Walter Wilcox states that these results are persuasive and that perhaps it is “naive to assume that [voir dire] serves to cleanse the mind of the facts or that it can eliminate prejudiced jurors.” Id.
232 Bunker, supra note 31, at 42. In Irvin v. Dowd, despite extensive voir dire, the force of the continued adverse pretrial publicity about the defendant prejudiced almost every potential juror in the county where the trial was going to be held. 366 U.S. 717, 726 (1961). Of the jurors finally impaneled, eight of the twelve had already formed an opinion that the defendant was guilty. Id. at 727. From this statistic Justice Clark concluded:
With such an opinion permeating their minds, it would be difficult to say that each could exclude this preconception of guilt from his deliberations. The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man. . . . [W]e can only say that in the light of the circumstances here the finding of impartiality does not meet constitutional standards.
Id. at 727–28. Clark continued, “No doubt each juror was sincere when he said that he would be fair and impartial,” but he notes, “[w]here so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight.” Id. at 728. The Irvin Court suggested that prolonged and extensive pretrial publicity may constitute evidence that the judgment of the jury panel has been so adversely impacted to the point that the credibility of all potential jurors’ truthful assertions of impartiality is undermined. Campbell, supra note 109, at 100.
233 See Bunker, supra note 31, at 42.
234 Robinson, supra note 3, at 1336.
235 See id. at 1336 n.169. Robinson points out that in the 1997 Bill Cosby extortion trial, in which Autumn Jackson was the defendant, the judge read to the jury ninety minutes’ worth of jury instructions. Id. The judge basically told the jury that it makes no difference whether the defendant was television icon Bill Cosby’s daughter. Id. Robinson contends that the jurors in the Cosby case could not possibly disregard the defendant’s father’s celebrity status or the pretrial publicity surrounding the case just because the judge told them to do so in the jury instructions. Id.
236 Fred S. Siebert, Trial Judges’ Opinions on Prejudicial Publicity, in Free Press and Fair Trial: Some Dimensions of the Problem 1, 12 (Chilton R. Bush ed., 1970).
237 Id.
238 Id.
239 Id.
240 See Robinson, supra note 3, at 1338.
241 See id.
242 See id. at 1336.
243 See id.
244 See Whitebread & Contreras, supra note 14, at 1612.
245 Gerald, supra note 95, at 80.
246 Kane, supra note 7, at 65.
247 Gerald, supra note 95, at 81.
248 Id.
249 Id.
250 See id.; Robinson, supra note 3, at 1338. At the close of a high-profile case, taxpayers can expect to pay thousands, or even millions of dollars. Robinson points out that Mike Tyson’s rape trial cost Indiana taxpayers approximately $100,000, and O.J. Simpson’s criminal trial cost California taxpayers about $9 million. Robinson, supra note 3, at 1338.
251 Whitebread & Contreras, supra note 14, at 1612. Indeed, in Sheppard, Justice Clark thought that ordering the jurors to avoid all contact with news media reports would have been a less drastic step than sequestration. Kane, supra note 7, at 21.
252 See Whitebread & Contreras, supra note 14, at 1613.
253 See id.
254 Gerald, supra note 95, at 81.
255 See Whitebread & Contreras, supra note 14, at 1615.
256 See id. at 1618. In a survey of approximately 400 judges, 12.2 percent found postponement to be “highly effective,” 30.4 percent found it to be “moderately effective,” and 9.3 percent found it to be “ineffective.” Siebert, supra note 236, at 13.
257 See Whitebread & Contreras, supra note 14, at 1618. Whitebread and Contreras also point out that psychologists are skeptical that time erodes the harmful effects of pretrial publicity. Id.
258 See id.
259 Id. Whitebread and Contreras state that the O.J. Simpson case demonstrates that a delay in proceedings in a case with national attention will not decrease the interest in the case. Id. In October of 1995, the Simpson case was the top news story, receiving about twenty-six hours of coverage on the evening news. Id. at 1619.
260 Id. at 1618.
261 Id. at 1619. Whitebread and Contreras argue that in jurisdictions such as Los Angeles, where most high-profile cases arguably take place, any additional backlog to an already crowded court system could prove disastrous. Id.
262 See Bunker, supra note 31, at 63.
263 Report of the Judicial Conference Committee, supra note 17, at 412; see Bunker, supra note 31, at 62.
264 Report of the Judicial Conference Committee, supra note 17, at 413; see Bunker, supra note 31, at 63.
265 Eric E. Younger, The “Sheppard” Mandate Today: A Trial Judge’s Perspective, 56 Neb. L. Rev. 1, 9 (1977).
266 Whitebread & Contreras, supra note 14, at 1606.
267 Id.
268 Id.
269 Id. at 1615.
270 Id. Even if other localities are available for a venue change, lawyers usually do not want a venue change. Gabrielle Crist, Opal News May Make Jury Selection Difficult, Fort Worth Star-Telegram, Mar. 11, 2000, at 1. Fort Worth Star-Telegram Staff Writer Gabrielle Crist writes, “There are three words that most attorneys hate: change of venue.” Id. In a Texas criminal case where the defendant was accused of the abduction of a six-year-old girl near her home, the media coverage surrounding the case was rather extensive. Id. There, one of the prosecutors in the case said that he did not want to ask for a venue change because he wanted the trial to take place where the girl was kidnapped. Id. Only if it became too obvious that too many of the potential jurors already formed an opinion about the guilt of the accused would the prosecution even consider a venue change. Id.
271 Siebert, supra note 236, at 10; Whitebread & Contreras, supra note 14, at 1615. In a survey of approximately 400 judges, only 12.2 percent found a change of venue to be a highly effective remedy. Siebert, supra note 236, at 10. From this data, a number of judges concluded that a change of venue was not a complete answer to the situation in which a defendant has been given a high degree of publicity. Id. Siebert also asserts that the fact that most mass media communications today tend to saturate an entire state most likely influenced the judges’ opinions about venue changes. Id.
272 See Whitebread & Contreras, supra note 14, at 1615. Whitebread and Contreras point out that in the Rodney King trial, the trial judge changed the venue to Simi Valley, some thirty miles away from Los Angeles, where the beating occurred. Id. In that case, media attention was nationwide, so the likelihood of impaneling an impartial jury under those circumstances in any jurisdiction in the country was doubtful. Id. In addition, a venue change to a place only thirty miles away cost the county over $200,000. Id.
273 Kane, supra note 7, at 4. Peter Kane states that a good example of this is the John Hinckley, Jr. trial for shooting Ronald Reagan. Id. An assassination attempt on the President of the United States is a notorious act that is sure to receive the widest publicity. Id. Because the shooting was caught on videotape, those scenes were shown over and over again in slow motion in virtually every television outlet in the country. Id. Kane asserts that it would be impossible to select twelve impartial jurors who had not seen the attack on television. Id.
274 See id.; Whitebread & Contreras, supra note 14, at 1615.
275 See Whitebread & Contreras, supra note 14, at 1617.
276 See id.
277 Gerald, supra note 95, at 76.
278 Id. For example, the trial of Joseph Remiro for the murder of the Oakland superintendent of schools cost Contra Costa County, the location to which the trial was moved, about $500,000. Id. In fact, at least seventeen states restrict venue changes in part because of the expense to the host county. Id. at 77.
279 See supra notes 211–278 and accompanying text.
280 See infra notes 281–300 and accompanying text.
281 See Robinson, supra note 3, at 1339, 1340.
282 See id.
283 See id. at 1340, 1342–43.
284 See id. at 1344, 1345.
285 See id. at 1348.
286 See Robinson, supra note 3, at 1340.
287 See id.
288 See id. at 1339.
289 See id.
290 Whitebread & Contreras, supra note 14, at 1626.
291 Id. at 1620.
292 See id. at 1621.
293 See id. at 1589.
294 See id. at 1625–26.
295 Whitebread & Contreras, supra note 14, at 1625–26.
296 See supra notes 211–215 and accompanying text.
297 See supra notes 230–233 and accompanying text.
298 See Irvin v. Dowd, 366 U.S. 717, 727–28 (1961).
299 Id.
300 Id. at 729–30 (Frankfurter, J., concurring).
301 See Whitebread & Contreras, supra note 14, at 1625–26.
302 See id.
303 See Bunker, supra note 31, at 144.
304 See infra notes 305–368 and accompanying text. Anonymity has been suggested in criminal rape cases. David Calvert-Smith, Director of Pubic Prosecutions in Great Britain, backed a reform of the rape trial process to give defendants anonymity. Steve Atkinson, Chief Backs Rape Case Anonymity, The Mirror, Jan. 12, 2001, at 2. Smith contends that the names of those accused of rape and child abuse should be kept secret until a case against them has been proved. Id. According to Atkinson, “Keeping names secret would protect high profile targets such as singer Mick Hucknall and former Southampton football club manager David Jones.” Id.
305 See, e.g., Neb. Press Ass’n v. Stuart, 427 U.S. 539, 587–88 (1976) (approving implicitly request for prior restraint in preliminary hearing). If appropriate measures are taken later than this point, the pretrial publicity may be so great that no remedy would make a difference in the fairness of the trial. For example, in the O.J. Simpson case, up until three weeks before the trial, a gag order still had not been issued. Judge Ito’s plan to impose a gag order at that time was revealed by the media. See Paul Thaler, The Spectacle: Media and the Making of the O.J. Simpson Story 87–88 (1997). Although Ito did impose a gag order shortly thereafter, the amount of pretrial publicity was already so great that the order could not undo the damage that had been done in prejudicing potential jurors. See id.
306 See Sheppard v. Maxwell, 384 U.S. 333, 361–63 (1966). The Court stated, “[i]f publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered.” Id. at 363. In holding that the trial court did not adequately protect the defendant’s right to a fair trial, the Supreme Court remanded the case to the District Court with instructions to release Sheppard from custody unless the State prosecuted him again within a reasonable time. Id.
307 See Bunker, supra note 31, at 144.
308 See Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981).
309 See id.
310 See id. Obviously in high-profile cases that are high-profile due to the notoriety of the crime itself and not necessarily because of the celebrity status of the defendant, the media could determine the name of the defendant based on the facts of the case, the victim, the location, and possible suspects. Thus, benefits of anonymity during the pretrial stage in heinous crimes, in which the press probably does not even care about the name of the defendant, are speculative at best. Anonymity is therefore at its most effective when a case is high profile because of the celebrity status of the defendant rather than the heinous nature of the crime. Some celebrities fall into two or more categories, such as O.J. Simpson, because of the heinousness of the crime and because the defendant is well known. The lines between the categories are not always clear, and defendants will have to decide for themselves if anonymity would work in their particular circumstances.
311 If the court had permitted the suspect in Mu’Min to remain anonymous, the detailed reporting of suspect’s background which showed that suspect was fully capable of committing murder would have been avoided. The reports about suspect’s background included details of the suspect’s juvenile record, prior murder of a cab driver, history of prison problems and parole denials, habit of going on numerous criminal forays before murdering the victim, and fellow inmates’ description of the suspect as a “lustful” individual who did “strange stuff.” Mu’Min v. Virginia, 500 U.S. 415, 436–37 (1991) (Marshall, J., dissenting). Moreover, had the press in Sheppard not known the defendant’s identity, headlines that were printed such as “Why Isn’t Sam Shepard in Jail?” would have been impossible to run. See Sheppard, 384 U.S. at 341. In the Manson murder case the Los Angeles Times ran a large-type banner headline that said, “MANSON GUILTY NIXON DECLARES.” Kane, supra note 7, at 30. Potential jurors who read about the President declaring the accused guilty as charged would most likely have a difficult time forgetting it once the defendant’s identity as “Manson” was announced. See id.
312 See generally Mu’Min, 500 U.S. at 443–48 (Marshall, J., dissenting).
313 See generally Whitebread & Contreras, supra note 14, at 1588–89.
314 In the federal corruption case involving Mayor Cianci, United States District Court Judge Ernest C. Torres said that people caught violating the issued gag order could be held in contempt of court. Breton, supra note 44, at 1A. Just as contempt is used as a remedy if someone violates a gag order before the trial begins, it can also be used to punish a violator of an anonymity order. See id.
315 See infra notes 316–320 and accompanying text.
316 In the murder trial of Diane Zamora, a formal Naval Academy midshipman accused of abducting and murdering a girl with whom her boyfriend had had an affair, attorneys worried that publicity would keep them from finding an impartial jury. Crist, supra note 270, at 1. There, “many of the potential jurors had seen media reports about the case, but they did not remember the specifics of the case.” Id. The assistant district attorney in the Zamora case stated, “I think they [the potential jurors] hear it, but they don’t file it away.” Id.
Some cases are so notorious that the facts alone, not the defendant’s identity, is what prejudices the jury. In those cases, allowing a defendant to proceed anonymously would not help to deflect any negative information about the case reported by the media prior to or during the trial. The recent case about the mother who drowned her five children is a good example—even if Andrea Yates’ identity was concealed throughout the trial, the facts alone would be enough to trigger a juror’s memory about information he or she had heard before or during the trial. See, e.g., CNN, Officer Says Yates Led Him to Her Dead Children (Mar. 11, 2002), at http://www.cnn.com/2002.LAW/02/28/yates.trial/index.html. Thus, in the Yates trial, anonymity would not be an effective remedy for pretrial publicity. See id.
317 See Ann Burnett, Jury Decision-Making Processes in the O.J Simpson Criminal and Civil Trials, in The O.J. Simpson Trials: Rhetoric, Media, and the Law 122, 131 (Janice Schuetz & Lin S. Lilley eds., 1999). Burnett states that “in the criminal trial some indication exists that Simpson’s celebrity status was difficult for some jurors to get past.” Id. In fact, in a post interview, one juror asked, “How could a man with everything commit murder?” Id.
318 See Ann M. Gill, Race and Money Matter: Justice on Trial, in The O.J. Simpson Trials: Rhetoric, Media, and the Law 139, 140 (Janice Schuetz & Lin S. Lilley eds., 1999). In the context of the O.J. trial, Gill states “[T]he defendant’s celebrity status had a major influence on the criminal trial. The trial started later than any other activity in the Los Angeles courthouse because, as Judge Lance Ito noted, ‘When O.J. Simpson comes into the building, everything stops.’” Id. In instances such as the O.J. case, if “everything stops” when a celebrity walks into the courtroom, it is difficult to see how a juror could make a decision based on the evidence presented in the case rather than on the information reported by the media prior to the trial. See id.
319 When a criminal defendant receives notice of the date of the trial and nonetheless fails to appear, it is not sufficient, as a matter of law, for the trial to go on without the defendant’s presence. Warren Freedman, The Constitutional Right to a Speedy and Fair Criminal Trial 14 (1989); see People v. Parker, 440 N.E.2d 1313, 1317 (N.Y. 1982). Because the constitutional right of a defendant to be present at his own trial is fundamental, the validity of a waiver of that right hinges on a showing that the defendant was informed of the nature of the right to be present at trial as well as the consequences of failing to appear at trial, including the fact that the trial will be held without his presence. Id.
320 Some studies indicate that one person’s perception of another is “heavily conditioned by his attitudinal set (prejudices).” Wilcox, supra note 231, at 74, 89. Upon confrontation with a defendant, the defendant’s appearance, sex, age, race, and other factors (possibly recognizing the defendant as a celebrity) have been shown to have a major effect on the jury’s existing hostility or sympathy towards the defendant. Id. The effect of face-to-face confrontation can modify the impression of the defendant acquired from pretrial publicity—this effect is mainly in the affective component of attitude (“Could this [celebrity] possible commit such a crime?”). Id. at 90.
321 See, e.g., Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 684–85 (11th Cir. 2001); Stegall, 653 F.2d at 185; S. Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712–13 (5th Cir. 1979).
322 Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992) (quoting Stegall, 653 F.2d at 186).
323 See U.S. Const. amend. VI.
324 See Bunker, supra note 31, at 144.
325 See, e.g., Stegall, 653 F.2d at 185; Victoria v. Larpenter, No. 00-T41960, 2001 U.S. Dist. LEXIS 5072, at *4–6 (E.D. La. Apr. 17, 2001).
326 Stegall, 653 F.2d at 185.
327 See id.
328 See id.
329 See id.
330 See Aware, 253 F.3d at 685; Frank, 951 F.2d at 323.
331 See Frank, 951 F.2d at 323; Stegall, 653 F.2d at 185–86.
332 Stegall, 653 F.2d at 186; see Frank, 951 F.2d at 323.
333 See Aware, 253 F.3d at 685; Frank, 951 F.2d at 323; S. Methodist, 599 F.2d at 712–13.
334 See, e.g., Mu’Min, 500 U.S. at 435–37 (Marshall, J., dissenting); Sheppard, 384 U.S. at 340–41.
335 See, e.g., Mu’Min, 500 U.S. at 435–37 (Marshall, J., dissenting); Sheppard, 384 U.S. at 340–41.
336 See Kane, supra note 7, at 63. The trial of Charles Manson attracted public attention due to the bizarre and gruesome nature of the crimes. Id. Similarly, the multiple murders in addition to the sexual assault on a minor child in the Kellie case attracted large amounts of public interest. Id. at 64. In Sheppard, during an inquest held by the coroner in the school gymnasium, the hostility toward the defendant was so great that “when Sheppard’s chief counsel attempted to place some documents in the record, he was forcibly ejected from the room by the Coroner who received cheers, hugs, and kisses from ladies in the audience.” 384 U.S. at 340.
337 See Gerald, supra note 95, at 66–67. Gerald points out that, in Irvin v. Dowd, the defendant:
was accused of six murders and several robberies so violent that the media, the police, and the populace joined in indignation. Although the community did not resort to the use of the traditional rope and tree, the spirit of lynching existed. Other communities experience similar hostility upon occasion and courts are tested when they insist on providing due process in the pretrial stage.
Id.
338 See Robinson, supra note 3, at 1328.
339 Id. at 1327–28; see Burnett, supra note 317, at 130–31.
340 See Aware, 253 F.3d at 685; Frank, 951 F.2d at 323; S. Methodist, 599 F.2d at 712–13.
341 See U.S. Const. amend VI.
342 See Neb. Press, 427 U.S. at 562.
343 See id. (noting prior restraint issued in trial court).
344 Id.
345 See id. at 561.
346 See id. at 562.
347 See id.; Stegall, 653 F.2d at 186.
348 427 U.S. at 562–63.
349 See, e.g., Mu’Min, 500 U.S. at 418–19; Sheppard, 384 U.S. at 341.
350 Neb. Press, 427 U.S. at 571 (Powell, J., concurring).
351 See supra notes 211–278 and accompanying text.
352 See 427 U.S. at 569.
353 Id.
354 See supra notes 301–313 and accompanying text.
355 See supra notes 301–313 and accompanying text.
356 See Neb. Press, 427 U.S. at 562.
357 See id.
358 See id.
359 See Stegall, 653 F.2d at 185. Although the press can attend the trial, with my solution, the defendant’s identity will not be revealed to anyone in the courtroom. The high-profile defendant will be referred to as John or Jane Doe, depending on the defendant’s gender. Unless the defendant is so famous that he is recognized by his appearance alone, this would prevent the press from learning of the defendant’s identity. Nevertheless, if the defendant is recognizable based on appearance, the only way to keep the press from discovering his or her identity is for the defendant to waive his right to be in the courtroom.
360 See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 604 (1980) (Blackmun, J., concurring); Stegall, 653 F.2d at 185.
361 See Richmond Newspapers, 448 U.S. at 604 (Blackmun, J., concurring); Neb. Press, 427 U.S. at 562.
362 See Stegall, 653 F.2d at 185.
363 See supra notes 317–320 and accompanying text.
364 See supra notes 317–320 and accompanying text.
365 See supra notes 317–320 and accompanying text.
366 See Robinson, supra note 3, at 1330–33.
367 See supra notes 330–362 and accompanying text.
368 See supra notes 301–368 and accompanying text.