on Sep 25th, 2009Venue, Prejudice, and Science in Criminal Trials
Any time a federal court of appeals states that a district court is not required to consider evidence, without any qualifying statement concerning the reliability of that evidence, one tends to take notice. Earlier this week, the Eighth Circuit held (in a case involving grisly and heartbreaking facts) that a district court is not required even to “consider public opinion polls when ruling on change-of-venue motions.” United States v. Rodriguez, No. 07-1316 (8th Cir., Sept. 22, 2009) (slip op. at 6) (emphasis added). The defendant was charged with kidnapping a young woman, Dru Kathrina Sjodin, and transporting her across state lines, resulting in her death. Slip op. at 1. After a trial, a jury returned a conviction and recommended a sentence of death. Id. at 3. The district court accepted the recommendation and imposed a death sentence. Ibid.
The question of venue in notorious criminal prosecutions is often difficult. The Supreme Court has held that a presumption of prejudice arises when “the influence of the news media” in “the community at large” is sufficiently pervasive. Murphy v. Florida, 421 U.S. 794, 799 (1975); see Sheppard v. Maxwell, 384 U.S. 333, 362-63 (1966). Consider the case of Jeff Skilling (Enron’s former president). Skilling was convicted of various financial crimes in connection with Enron’s collapse. From the beginning, Skilling’s lawyers argued that he could not receive a fair trial in Houston (asserting, among other things, that one in three Houstonians knew someone who had been harmed by Enron’s demise). The district court rejected the venue argument. On appeal, the Fifth Circuit held that the district court should have applied a presumption of prejudice, but further held that the government had successfully rebutted the presumption by showing that an impartial jury actually had been impaneled. The second question presented in Skilling’s pending petition for certiorari concerns whether such a rebuttal is permissible or whether a change of venue (or, in the post-trial context, automatic reversal of the conviction) is the appropriate remedy. See Skilling v. United States, No. 08-1394.
Changes of venue in criminal cases (and remedies for failures to change venue) do occur. The most famous instance is probably the Sheppard case in which a Cleveland physician, convicted of murdering his pregnant wife, ultimately was granted a new trial after having served 10 years in prison. 383 U.S. 333. Recently, a district judge in Iowa ordered a change of venue for trial from the Northern District of Iowa to the District of South Dakota in a well-publicized case involving alleged undocumented workers that stemmed from a raid on a meatpacking plant. See United States v. Agriprocessors, Inc., et al., No. 08-CR-1324-LRR (N.D. Iowa) (docket entry 656). But changes of venue are unusual.
Given the standards involved in venue challenges, the Eighth Circuit’s rejection of the venue argument in Rodriguez is hardly surprising. The holding that a district court is not required to consider evidence, however, is another matter. There is nothing inherently unreliable or invalid about a public opinion poll. The Advisory Committee Notes to Fed. R. Evid. 703, for instance, specifically recognize “public opinion poll evidence.” The U.S. Bureau of the Census first used statistical sampling techniques in 1937. See http://www.census.gov/history/www/innovations. The Federal Judicial Center has addressed the use of sampling techniques in detail. See Manual for Complex Litigation (3d ed.), Section 21.493 (”Sampling/Opinion Surveys”). If a public opinion survey is based on unreliable methods or lacks validity, or if the survey has an attenuated relationship to the issue at hand, a district court is certainly free to reject or minimize the significance of the data. The Eighth Circuit, however, has made a categorical pronouncement that misstates prevailing law and has the effect of denigrating science. That is not a desirable result for anyone.
