By David A. Brener

In high- profile capital cases, it is standard procedure for the defense to file a Motion to Change Venue as a result of extensive negative pre-trial publicity. The assumption is that when the case is moved to a jurisdiction where there is little or no adverse pre-trial publicity, the prospective jurors will be uninfluenced by outside sources and will be able to arrive at their decision based on the evidence alone, and without any preconceived notions regarding the guilt or innocence of the accused.

Conversely, the assumption underlying a venue-change request is that a jury pool which is repeatedly exposed to negative facts about the case or the defendant will be unable to be fair and impartial and to follow the presumption of innocence, and thus will be more conviction-prone and more likely to recommend the death penalty. “Because the death penalty typically is reserved for only the most heinous offenses and because the American media thrives on sensational headlines, most capital cases tend to be surrounded by a great deal of pre-trial publicity.”

To be sure, research has shown that, in capital cases, the aggravating facts and circumstances are frequently disseminated widely, and mitigating circumstances are either not reported or reported only after the penalty phase has begun. “[V]ery rarely does mitigation (which focuses on the characteristics of the defendant) make front-page news,” while “the sensationalism that tends to accompany death-penalty cases is similar, if not identical, to the aggravating factors…presented during the penalty phase of a capital trial.” Consequently, not only are the prospective jurors receiving a one-sided view of the case, but that view, according to research, has pervasive affects on the venire and is extremely difficult to overcome.

“[C]apital juries are more likely to be comprised of people who know more about the case, think the defendant is guilty, and view the death sentence as the appropriate punishment before the trial even begins. Perhaps most disturbingly, prior research has suggested that knowledge of pretrial publicity is particularly resistant to rehabilitative vior dire.”

Thus, moving the trial would seem to be the wise course in any capital case where extensive media coverage has occurred. On the other hand, in capital cases the ultimate goal is usually to save the client’s life. If pre-trial publicity can be used as a way to ensure that more pro-life jurors are empanelled, then the perceived evil of adverse publicity may be offset by its use as a tool to remove pro-death jurors.

In the writer’s recent case involving Kemar Johnston, the alleged “ringleader” of the “Cash Feenz Gang,” the defense used, along with peremptories, pre-trial publicity and Morgan v. Illinois to remove all of the pro-death jurors on the venire. In hindsight, it was therefore no surprise that the defendant received a unanimous jury recommendation of life without parole for the torture murders of two (2) teenagers in the very venue where the crime occurred, conservative Lee County, Florida. While there was no single reason for the result obtained, as it was a combination of many battles waged and many mitigating circumstances presented, the removal of so many pro-death jurors through cause challenges based on pre-trial publicity and mitigation-impairment was crucially important.

Jury selection began with individual and sequestered voir dire on the issues of pre-trial publicity, and the death penalty. Prior to trial, the writer filed a Motion for Expanded and Meaningful Voir Dire, and cited both state cases which reversed prohibitions on questioning about specific defenses or areas of bias, and United States Supreme Court precedent regarding jury selection and mitigation. We argued extensively over the meaning and historical underpinnings of Penry v. Lynaugh and Morgan v. Illinois , and their holdings that a jury must be able to give consideration and effect to mitigating circumstances , and that jurors who express in voir dire that they cannot give meaningful effect to mitigation are constitutionally unqualified to sit on a capital jury .

As a result of a favorable ruling, we were able to exclude pro-death jurors by asking whether they would give “consideration and effect” in their deliberative process to particular types of mitigating evidence. Some jurors were unable to consider or give effect to alcohol and drug intoxication, while others could not give effect to low I.Q., an impoverished childhood, brain damage, or peer pressure. Consequently, we were able to exclude, for cause, dozens of pro-death jurors who were mitigation-impaired from going to the next round of jury selection.

Those pro-death jurors who could not be excluded in this fashion were excluded on the basis of pre-trial publicity. While many at first appeared to fall below the threshold for cause as a result of claiming that they could put aside what they read or saw and base their verdict on the evidence alone , we were able to get almost all of these jurors to acknowledge that, due to the publicity, the defense would have to assume a burden to prove the client’s innocence. Tactically, we first got the jurors to articulate what they had seen or heard about the case, and then got them to recap their testimony in a summary fashion. Next, the writer examined the jurors about their belief and trust in the reputable source of the information to which they had been exposed, and the apparent reliability of that information given the number of similar stories. Finally, we were able to get them to commit that they believed that the decedents were, in fact, murdered, and to the extent possible, had them recite the victims’ names or describe their attributes. Since murder and identification are two (2) of the elements in the case which the state had to prove beyond a reasonable doubt, those jurors were able to be stricken for cause, as most would at least agree that the defense would have to prove that the decedents were not, in fact, dead, a classic example of burden shifting.

Using the process of identifying pro-death jurors, and then alternating between examinations designed to reveal cause challenges based on mitigation impairment and effect of pre-trial publicity, we were able to remove one hundred and eighty four (184) of two hundred (200) jurors, and still had some of our initial ten (10) peremptory challenges remaining . This gave us a jury comprised almost entirely of pro-life jurors, including some automatic life sentence jurors (ALS).

Of course, having the right audience, while crucial, is just the beginning. We conducted an extensive mitigation investigation, traveled abroad twice, and presented a number of mental health experts, including a neuro-psychologist, forensic psychiatrist, brain imaging expert, and sociologist. Equally as important, we gave flesh to the experts’ conclusions by presenting family members and school teachers to corroborate their findings, and to humanize our client. We presented one hundred (100) mitigating circumstances, and attacked the aggravators of especially heinous, atrocious, and cruel (H.A.C.), cold, calculated, and premeditated (C.C.P.), prior violent felony (double murder), and felony murder (kidnapping). We fashioned our argument based, in part, on lingering doubt as to the actual shooter, which Capital Jury Project research demonstrates is the most effective lingering doubt argument , and argued disparity in the sentences of the co-defendants to the jury. In light of the effective cross-examinations of numerous cooperating co-defendants in the first phase of the trial, we surmised that the jury had relied on the felony murder rule, and had not found our client guilty of two (2) premeditated murders. We argued against a death recommendation for one who was not proven guilty, beyond all reasonable doubt, of being an actual triggerman. Among many other mitigators, we showed the jury the devastating effect the client’s execution would have on his family , the difficult upbringing the client had in poverty-ravaged rural Jamaica , and his exposure to defoliants as a young child.

The jury deliberated less than an hour before returning with its life recommendation for both homicides. Within five minutes of beginning deliberations, however, the jury had a question: was the Defendant offered a plea bargain, or was he forced to go to trial? Of course, the judge could not answer the question, but the inquiry told us that they were already considering our proportionality argument.

The State had argued most strongly against a life recommendation for the murder of “the innocent fourteen (14) year old,” and when the recommendation was returned, the judge, in dramatic fashion, instructed the clerk to read the verdict regarding that decedent last. We held our breath for what seemed like an eternity, and then celebrated the double life recommendation. For some unknown reason, the judge polled the entire jury as to whether the recommendation was each individual juror’s recommendation, even though there is no numerical count on a life verdict, so long as six (6) or more recommend life without parole. Each juror acknowledged that the recommendation was their own.

This significant victory occurred mere miles from where the murders occurred, and in a community bombarded by negative pre-trial publicity about the case, and the client. Ironically, were it not for the extensive pre-trial publicity, which led the defense to file several motions to change venue, the verdict may have been very different. The defense would not have been able to remove so many pro-death jurors from the venire, and almost certainly would have had a less homogenous group on the jury. If the case was moved to another venue, one devoid of negative pre-trial publicity, many of the pro-death prospective jurors who survived the Witherspoon /Witt challenges, would have been able to sit on the jury and recommend, and seek to have others recommend, the death penalty.

Research has shown that the presence of only a few pro-death jurors can entirely change the dynamic in jury deliberations, as pro-death jurors are usually more assertive in their beliefs and less likely to consider arguments about lingering doubt or proportionality. Thus, even a substantial minority of pro-death jurors can “win over” undecided or pro-life jurors through “forceful impassioned words…that the character of the crime or the defendant demands the death penalty.” Without a number of pro-death jurors, the pro-life jurors were able to give unfettered effect to their predispositions, and the mitigating evidence in the case.

As noted above, saving the client’s life is normally the overriding goal in a capital case. Many times, the guilt and innocence phase is concerned almost as much with sentencing issues as with issues related to guilt and innocence. Front-loading mitigation, minimizing aggravation, and humanizing the client are some of the ways we, as capital defense lawyers, “set up” the penalty phase evidence and argument. If a juror who sits on a capital case has been exposed to some negative pre-trial publicity, but is nevertheless a pro-life juror, many times it will not matter, given the ultimate goal, if he or she is more conviction-prone as a result of the publicity, so long as, at the end of the day, the juror recommends a life sentence.

By trying the case in the locale which engendered the greatest amount of pre-trial publicity, counsel may be able to use that publicity to remove pro-death jurors, and, along with exposing mitigation-impaired jurors, seat a jury which is willing and able to recommend, even in a highly aggravated case, life over death. While the conventional wisdom is to move the trial as far away from the insidious effects of negative publicity as possible, pre-trial publicity, if the right questions are asked, can be capital defense counsel’s friend. This experience has caused this writer to re-think change of venue in high profile capital cases, and it may be something that other capital practitioners should consider when trying to decide this crucially important question.

David A. Brener, Esquire, is a Fort Myers criminal defense attorney who concentrates on homicide cases. He is the current President of the Lee County Chapter of the Florida Association of Criminal Defense Lawyers, the Chairperson of Criminal Law Section of the Lee County Bar Association, and “death qualified” for representation of clients in Florida charged in capital murder cases.



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