JAMES RICHARD ODLE, Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
S.F. No. 24362
Supreme Court of California
Dec. 10, 1982.
32 Cal. 3d 932
William E. Gagen, Jr., Merrill, Thiessen & Gagen and William T. Lowe for Petitioner.
Quin Denvir, State Public Defender, as Amicus Curiae on behalf of Petitioner.
No appearance for Respondent.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, William D. Stein, Assistant Attorney General, W. Eric Collins and John B. Moy, Deputy Attorneys General, for Real Party in Interest.
OPINION
KAUS, J.—
I
An information charges James Richard Odle with two counts of murder (
Odle then petitioned for mandate to compel the trial court to grant a change of venue. An alternative writ has issued and trial has been stayed pending resolution of this proceeding.
II
Charges against Odle stem from the stabbing death of Rena Aguilar on April 30, 1980, and the shooting death of Floyd Swartz, a Pinole police officer, on May 3, 1980, as Swartz attempted to apprehend Odle. Immediately after the shooting of Officer Swartz, there ensued an intense police manhunt involving over a hundred East Bay police officers, a SWAT team, and dogs. An area of Pinole was cordoned off while Odle was sought in a wooded creekbed. After five hours he was apprehended without resistance. The People concede that the “police siege” received multimedia coverage and attracted 100 to 150 spectators, but they dispute Odle‘s statement that the spectators cheered when he was placed in the police car or that the spectators called on the police to kill him.
In Martinez and its predecessors we identified the indicators of potential prejudice in pretrial publicity. They include the nature and extent of the news coverage, the size of the community, the nature and gravity of the offense, and the respective standings of the victim and the accused in the community. (Martinez, supra, 29 Cal.3d at p. 578.)
The parties agree—and the trial court found—that in the two weeks of May 1980 after the officer‘s death, the media coverage was extensive throughout the Bay Area. The parties also agree that Contra Costa is large in terms of population and geography; what is disputed is its “character” and the issue whether size alone—without large metropolitan centers—can dissipate potential prejudice. It also appears settled that there were no publicized confessions of the accused or his codefendant and that no political controversy surrounds the case or its participants.
The parties rely principally on two cases: Odle on Martinez v. Superior Court, supra, 29 Cal.3d 574, and the People on People v. Harris (1981) 28 Cal.3d 935 [171 Cal.Rptr. 679, 623 P.2d 240]. In Martinez we found a reasonable likelihood that a fair trial could not be had in Placer County where, although not inflammatory or highly sensational, extensive publicity continued for over a year before the change of venue motion, climaxing during the trial of Martinez’ alleged accomplice. We stressed that the county was relatively small and rural. Although we declined to adopt a special rule giving rise to a presumption in favor of a requested change of venue in any capital case in which there has been extensive publicity, we held that the gravity of the crime charged was a most significant factor and that the rule that all doubts be re-
The People, on the other hand, compare this case with Harris where, despite highly sensational and inflammatory publicity, the trial was had in the community where the crime occurred. In that case the size of the community—San Diego, statewide third in population—tipped the balance against change.
Yet, each case must be decided on its own facts. With that truism in mind we examine the record and attempt to isolate the factors which should affect our determination.
III
Size of Community. Size of community was the primary factor relied on by the trial court in denying a change of venue and is the major thrust of the People‘s opposition in this court. Contra Costa County, by latest available figures, has a population in excess of 666,000. Pinole has a population of under 15,000—just about 2 percent of the county‘s population. One of the larger counties in the state and part of the San Francisco metropolitan area, Contra Costa is served by the metropolitan newspapers as well as the local and regional press. Although made up primarily of small cities and towns, like other counties—i.e., Marin and San Mateo—that border major urban communities, Contra Costa is as much suburban as rural. Its population is diverse. In the western portion, where the crimes occurred, the county is urban-industrial, the home of commercial and transport facilities of several major oil companies. That portion—including Richmond and Martinez, the county seat—constitutes almost one-third of the county‘s population. The central portion, in the eastern foothills of the coast range, which includes Lafayette, Orinda and Walnut Creek, is primarily suburban and has more than one-half of the county‘s population. The eastern portion, bordering on the San Joaquin Valley, is rural and has a population of less than 100,000.
Odle points out that venue changes have been granted from larger California counties4 and urges that size alone should not be the touchstone. We agree that “population size alone is not determinative” (Fain v. Superior Court (1970) 2 Cal.3d 46, 52, fn. 1 [84 Cal.Rptr. 135, 465 P.2d 23]), but in weighing the factors as we must, we are inclined to weigh the factor of community size in favor
The Nature and Extent of Publicity. In the two weeks following the killing of Officer Swartz, press and other media coverage was extensive. There was television coverage of the manhunt and apprehension of Odle. Thereafter television and radio coverage ceased, and, essentially, so did the coverage by the San Francisco dailies. The East Bay papers, however, continued to report on the pretrial proceedings and developments, up to and including the requests for change of venue.5 Local and regional papers covered the funeral of the slain officer and have reported on the progress of a memorial fund set up for his family.
Odle submitted over 150 newspaper articles in support of his motions. Because of the number of papers involved, the articles are necessarily repetitive. Odle points to several facets of the reporting in this case which, he claims, is different from the “run of the mill” murder case. He notes that his name was used in headlines more than 70 times, indicating an expectation of name recognition and establishing him as a notorious person. He also finds in the articles an inordinate interest in all pretrial motions and proceedings, including, for example, the circumstances surrounding the substitution of attorneys. However, despite the fact that the capital aspect of the case is mentioned in almost every article, the reporting is no different in degree or intensity than the usual reporting of other homicides of the kind involved here. While several articles contained information that might be potentially prejudicial, they received very limited circulation, and the reporting on the whole was not inflammatory, sensational, or hostile. As we noted in Martinez, however, the controlling consideration is whether the net effect of the coverage was to suggest to persons who are potential jurors that Odle was the actual killer. (29 Cal.3d at p. 580.)
Unlike in Martinez, no press reports in this case stated the prosecution‘s belief in Odle‘s guilt, and the level of hostility observed in other cases—Harris, for one—is absent. However, the net effect of the continuing publicity un-
We agree with the trial court that because of the passage of time after the initial period in the spring of 1980, the nature and extent of the news coverage alone does not compel a change of venue.
Status of the Accused. Pertinent to this factor is whether Odle was viewed by the press as an outsider, unknown in the community or associated with a group to which the community is likely to be hostile. Odle had served some time in prison and several articles noted that he was an “ex-convict” and a parolee. Certain reports suggested mental instability on his part.6 He had appeared in shackles in an unrelated burglary case, and the press reported on his attempts to avoid shackling and restraint during the pending murder trial. The press also reported on an aborted escape attempt and that Odle brought a civil suit in July of 1981 against the county alleging brutality on the part of deputies at the county jail in Martinez. However, as the People note, Odle is not an outsider; he has been a resident of Contra Costa County for 30 years and has lived and worked there all of that time. Nor has the press portrayed him as a “foreigner.” While the family of his nephew—and former codefendant—has reportedly abandoned Odle,7 there is nothing to indicate that he is “friendless” or without other familial support.
The Status and Prominence of the Victims. The trial court found that “the victims were essentially private persons and could not be classified as prominent as the term is used in the case law.” While this characterization is correct as to both victims before their deaths, it fails to take into consideration that the slain officer, by virtue of the events and media coverage after the crimes, became a posthumous celebrity, at least in the western portion of the county where the crimes took place. Newspaper articles reveal that the officer and his family8
A fund started for the family has raised over $50,000 from contributors all over the state and county. Well publicized benefits were conducted, with proceeds going to the fund. Most of the coverage in this respect has been in the west county press. A number of stories, again largely concentrated in the west county press, reported on a lawsuit brought by a former wife of the officer seeking participation in the fund on behalf of their child.
In sum, the effect of the status and prominence of the two victims on the issue before us is inconclusive.
Nature and Gravity of the Offense. As noted above, the circumstances surrounding the death of the young woman received little media attention, although, when referred to, it was portrayed as a “brutal stabbing” and she was described as a young (18 years) mother of a 2-year-old child. The details of the policeman‘s death—he was shot in the throat or neck as he approached Odle—were seldom related. It was the characterization of the crime as a “cop killing” which sensationalized it in the media, and it was the outpouring of public sympathy for the slain officer and his family that is described in the media reports furnished to us. It is readily apparent that we do not have here the type of multiple and bizarre killings that were the object of media attention in Corona (Corona v. Superior Court (1972) 24 Cal.App.3d 872 [101 Cal.Rptr. 411]) and Frazier (Frazier v. Superior Court (1971) 5 Cal.3d 287 [95 Cal.Rptr. 798, 486 P.2d 694]), to name two. Nevertheless, Odle is charged with the gravest of crimes and faces the gravest of punishments. Capital cases inherently attract media coverage and for that reason “the factor of gravity must weigh heavily in a determination regarding the change of venue.” (Martinez, 29 Cal.3d at p. 583.)
Summary. We have reiterated the relevant criteria and set out the evidence which relates to each; we now assess the material and weigh it in order to determine the likelihood that Odle can receive a fair trial in the county. The publicity was extensive in the first two weeks—in May of 1980—and related principally to the killing of the officer and Odle‘s apprehension. Thereafter, the only out-of-the-ordinary media attention was given to the fund-raising. Although all proceedings and court appearances were reported, the reports were low-key and not hostile. Most significant, however, is that the publicity after the first few
The status of Odle in the community, as well as the status of the young woman who was killed, appear to be neutral factors. Both were residents and essentially unknown until May of 1980. Odle possesses no social or racial attributes which might arouse community prejudice or hostility, and his claim that he is represented in the press as a friendless pariah is not supported by our reading of the news reports. While the officer victim has become a posthumous celebrity, it is evident that it is his status as an officer, killed in the line of duty, that has propelled him to prominence. Communities undoubtedly have special hostility toward “cop killers,” but that aspect of the case would follow Odle to whatever community in which venue ultimately resides.
IV
The crux of this case is its potential for the ultimate imposition of the death penalty. In Martinez we rejected the proposal of a special rule to establish a presumption in favor of a requested venue change in capital cases. We concluded that such a rule was not necessary and that the rule for resolution of all doubts in favor of a change of venue was sufficient protection for the accused.10
It is, however, difficult to envision an eventual capital case which will not receive extensive media coverage, at least for a short period of time. If the early publicity attendant on a capital case alone suffices to raise a doubt as to the likelihood of a fair and impartial trial, a change of venue would perforce be required in every such case.
Our conclusion is necessarily based on the evidence before us at this time. If our perceptions and conclusions are faulty and the voir dire reveals that, in fact, the dissemination of potentially prejudicial material was more widespread than was or could be anticipated, the trial court will have not only the opportunity, but the duty to order a change of venue upon renewed motion of defendant.11
Mindful that trial courts are understandably reluctant to change venue when the parties and witnesses are in place and jury selection has begun, we stress that the trial court has the authority to change venue in an appropriate case even at that late date. (Maine v. Superior Court, supra, 68 Cal.2d 375.) Although Maine was concerned with the propriety of pretrial review of venue motions, it nevertheless recognized that the motion could be renewed at time of voir dire: “Due regard for the orderly progress of a trial dictates that a defendant apply for a writ of mandate in advance of trial so that, if the application appears meritorious the appellate court pending its own decision can stay the trial court proceeding. If the appellate court denies the application or if appellate review is not sought, defense counsel can continue under the previous practice, to renew his motion for a change of venue during or after the voir dire examination of prospective jurors, and the trial court should order a venue change if the situation so merits.” (68 Cal.2d at p. 381; italics added.)
Whether ruling on a motion to change venue well before trial or during the voir dire, the standard remains the same—the reasonable likelihood of a fair trial in view of the pretrial publicity. The additional evidence in a determination at voir dire is the jury panel itself. What had been a matter of some speculation
The primary purpose of voir dire is to determine the competency and qualification of particular jurors to serve (
While the propriety of a ruling on challenge for cause is governed by the statutes referred to in the preceding paragraph, the ruling on motion to change venue—the analysis of a reasonable likelihood that a fair trial cannot be had in the county—is separate from, and requires a far more searching analysis than, the decision to qualify a particular juror. That each juror is qualified under applicable statutes and, specifically, that no juror fails to meet the criteria of section 1076, is not controlling. (See Irvin v. Dowd (1961) 366 U.S. 717, 724-725 [6 L.Ed.2d 751, 756-757, 81 S.Ct. 1639].) Resolution of the venue question requires consideration of the responses of jurors who do not ultimately become members of the trial panel as well as those who do. (See Murphy v. Florida (1975) 421 U.S. 794 [44 L.Ed.2d 589, 95 S.Ct. 2031]; Irvin v. Dowd, supra, 366 U.S. 717; People v. Tidwell (1970) 3 Cal.3d 62 [89 Cal.Rptr. 44, 473 P.2d 748].)
Irvin recognized the reach and effect of the modern communications media (“To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror‘s impartiality would be to establish an impossible standard“) and the need for modification of an absolute requirement of impartiality (“It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court“). (366 U.S. at p. 723 [6 L.Ed.2d at p. 756].) The court nevertheless examined the entire voir dire record to evaluate independently the testimony of the ultimately impaneled jurors. The court found a pattern of prejudice that was clearly reflected in the examination of a majority of those finally placed in the jury box.
As to the protestation of impartiality, the court stated: “No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one‘s fellows is often its father. Where so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight.” (366 U.S. at p. 728 [6 L.Ed.2d at p. 759]; italics added.)
Using the same analysis, the United States Supreme Court upheld the jury selection process in Murphy v. Florida, supra, 421 U.S. 794, determining that under the totality of circumstances, Murphy was not denied a fair trial. The Murphy court reiterated the guidelines for assessing the declared impartiality of prospective jurors. The court noted: “The length to which the trial court must go in order to select jurors who appear to be impartial is another factor relevant in evaluating those jurors’ assurances of impartiality. In a community where most veniremen will admit to a disqualifying prejudice, the reliability of the others’ protestations may be drawn into question; for it is then more probable that they are part of a community deeply hostile to the accused, and more likely that they may unwittingly have been influenced by it. In Irvin v. Dowd, for example, the Court noted that 90% of those examined on the point were inclined to believe in the accused‘s guilt, and the court had excused for this cause 268 of the 430 veniremen. In the present case, by contrast, 20 of the 78 persons questioned were excused because they indicated an opinion as to petitioner‘s guilt. This may indeed be 20 more than would occur in the trial of a totally obscure person, but it by no means suggests a community with sentiment so poisoned against
Use of the voir dire in assessing the reasonable likelihood of a fair trial in the county of venue is also illustrated by People v. Tidwell, supra, 3 Cal.3d 62. Although Tidwell was tried before Maine and the “reasonable likelihood” standard, the conviction was overturned in large measure because the trial court failed to heed and evaluate the expressions of partiality/impartiality of the prospective jurors. The court concluded: “In sum, this trial had no hope of enforcing procedural guarantees which have been built up over centuries of legal experience. From the outset the entire community from which all participants except the defendant were drawn was familiarized with the details of the prosecution‘s case by extensive publicity of the progress of the investigation of the murders—including the apprehension of the defendant and the discovery of items in his possession which were linked with the victims. The formalities which would follow—authenticating, offering, and receiving or rejecting items of evidence in the trial—cannot hide the fact that all 12 jurors had heard news of the case, and many must certainly have been aware of the prosecution‘s evidence. . . .” (3 Cal.3d at pp. 75-76; italics added.)
While we have decided that, on the evidence before us, there is no reasonable likelihood that Odle cannot receive a fair trial in Contra Costa County, the actual impact on prospective jurors of the extensive early media coverage remains an unknown quantity. It may be that none of the jurors will have heard or recall the pretrial publicity. Whatever the extent of exposure, however, the trial court will be in the best position to assess its impact on the jury panel as well as to evaluate the declarations of impartiality/partiality by the individual jurors. Further, any danger that examination at voir dire will itself serve to publicize the early reports is minimized by the practice, in Contra Costa County, of an individualized voir dire procedure.13 (See People v. Rutkowsky (1975) 53 Cal.App.3d 1069, 1073 [126 Cal.Rptr. 104].)
As we recalled at the outset, in Martinez we said that “any doubt as to the necessity of removal to another county should be resolved in favor of a venue change.” (29 Cal.3d at p. 578.) We do not deviate from that principle. We do,
The alternative writ of mandamus is discharged and the petition for writ of mandamus is denied.
Newman, J., Broussard, J., and Reynoso, J., concurred.
Richardson, J., concurred in the result.
BIRD, C. J.—I dissent.
The well-established law of this state mandates that a motion for a change of venue must be granted whenever there is any doubt that a fair trial can reasonably be held in the county in which a crime is to be tried. (Martinez v. Superior Court (1981) 29 Cal.3d 574, 577-578 [174 Cal.Rptr. 701, 629 P.2d 502] and cases cited; Maine v. Superior Court (1968) 68 Cal.2d 375, 387-388 [66 Cal.Rptr. 724, 438 P.2d 372].)
Here, the evidence raises a strong doubt about the likelihood of a fair trial in Contra Costa County. The majority reach the opposite conclusion only by seriously mischaracterizing the nature of the pretrial publicity in this case. In fact, the publicity was hostile and continuous, contained damaging disclosures about the “evidence” against petitioner, and infected most, if not all, of Contra Costa County. Judged by the standards promulgated by this court in past cases and purportedly relied on by the majority here, petitioner has demonstrated that the pretrial publicity about his case necessitates a change of venue.
The majority‘s conclusion is all the more disturbing in light of the fact that the petitioner faces the possibility of the death penalty. This court has pledged that in capital cases, cases “of utmost gravity” involving “the gravest consequences to petitioner,” motions for a change of venue will be given particularly careful consideration. (Martinez, supra, 29 Cal.3d at pp. 583-584.) The majority in this case fail to live up to that pledge.
In addition, the majority here sanction a procedure that this court has rejected repeatedly in past cases, and create a virtual presumption that venue need not be changed before voir dire. The result will be a troubling increase in the number of cases tried in counties in which extensive publicity has made a fair trial impossible, and a consequent increase in the number of convictions which will have to be reversed after trial.
I.
This court recently reiterated the standards to be applied to a pretrial writ of mandate seeking to compel a change of venue. (Martinez, supra, at pp. 577-578.) The appellate court must make an independent evaluation of the evidence, and must grant a motion whenever ” ’ “there is a reasonable likelihood that in the absence of such relief, a fair trial cannot be had. . . . A showing of actual prejudice shall not be required.” ’ . . . [A]ny doubt as to the necessity of removal to another county should be resolved in favor of a venue change. [Citations.]” (Ibid.) The relevant factors in examining the evidence include “the extent and kind of the publicity as well as the size of the community . . . [,] [t]he nature and gravity of the crime . . . [and] the standing of the victim and the accused in the community. [Citations.]” (Id., at p. 578.)
Petitioner submitted to the trial court over 150 newspaper articles concerning his case, as well as approximately 140 pages of transcripts of television and radio news broadcasts. Much of the publicity was prejudicial to petitioner, either because of its hostility to him and sympathy for the victims, or because it disclosed factual information likely to create a belief in his guilt.
Press coverage of petitioner and his alleged crimes became widespread immediately after the death of Officer Swartz and petitioner‘s arrest. The media consistently reported that he was apprehended only after a “massive manhunt,” complete with scores of police officers, helicopters, dogs and SWAT teams. Although the Attorney General points to one article indicating that the crowd observing the “manhunt” was calm and peaceful, most of the press painted quite a different picture. Television and radio broadcasts and newspaper articles reported that the crowd “yelled for police to kill him,” and that the police feared for petitioner‘s safety after his arrest. One newspaper deemed it appropriate to quote an observer who said, “I hope they blow that sucker to bits. I‘d hate to see him walk out of there.” The article noted that those around him shared his sentiments. A woman said, “I kind of hoped they‘d bring that guy out looking like a piece of swiss cheese.” Further, when an officer “prodded” petitioner “none too gently in the back with the end of his weapon, the crowd cheered again.” A newspaper reported that a local citizen said, “if he is responsible for the two murders,” petitioner “should die.”
In the following weeks, the newspaper coverage continued to relate information likely to arouse hostility toward petitioner. His prior record was discussed
Petitioner‘s ex-wife and relatives contributed to the parade of inflammatory publicity, telling the press that he became violent when taking medicine after an accident which resulted in part of his brain being removed, and that he had threatened to harm family members. It was reported that petitioner‘s ex-wife left him because she knew he would never “straighten up.”
At the same time, the press provided extensive coverage of the outpouring of grief and sympathy at Officer Swartz‘s death. A fund to aid his survivors was established within 24 hours of his death, and quickly raised $50,000. Many articles described his young family—2 children and a 22-year-old wife who was pregnant at the time of his death. He was born and raised in Contra Costa County.
Hundreds of officers attended his funeral. Colleagues and local citizens described him as a model police officer who had had an admirable impact on the lives of those he served. Newspaper coverage of his life and death was revived when the Chamber of Commerce named him Man of the Year, when his first wife sued his widow, demanding a share of the memorial fund on behalf of her child, and again when his third child was born, three and one-half months after his death.1
A renewed burst of publicity described the public defender‘s attempts to withdraw from the case—in terms which strongly implied that the office found the defense of petitioner distasteful.
In addition to publicity likely to inflame the public and arouse hostility toward petitioner, widespread discussions of “evidence” tending to point toward his guilt was equally prejudicial. Here, as in People v. Tidwell (1970) 3 Cal.3d 62, 70 [89 Cal.Rptr. 44, 473 P.2d 748], “a good deal of the prosecution‘s case was presented out of court before the trial.” The public was informed that Brian Odle, petitioner‘s nephew, had surrendered to the police in
Graphic details of Aguilar‘s death were printed, including the statement that she was found “screaming and bleeding profusely from numerous stab wounds.” A neighbor was quoted as saying, “I saw the stab wounds. I saw her intestines on her stomach and her hair was all matted with blood.” The newspapers reported detailed physical evidence linking petitioner to the Aguilar killing—his nephew‘s wallet left at the scene, bloodstains in a stolen van that petitioner was seen driving, reports that a similar van was observed at the scene of the homicide.
Television, radio and newspaper accounts were even more positive in stating that petitioner had killed Officer Swartz. Lengthy eyewitness accounts of the killing were printed. Most of those said that Swartz was killed while trying to arrest Odle—thus resolving the issue underlying one of the special circumstances allegations (
“When a spectacular crime has aroused community attention and a suspect has been arrested, the possibility of an unfair trial may originate in widespread publicity describing facts, statements and circumstances which tend to create a belief in his guilt. [¶] Indispensable to any morally acceptable system of criminal justice is a verdict based upon evidence and argument received in open court, not from outside sources. When community attention is focused upon the suspect of a spectacular crime, the news media‘s dissemination of incriminatory circumstances sharply threatens the integrity of the coming trial. The prosecution may never offer the ‘evidence’ served up by the media. It may be inaccurate. Its inculpatory impact may diminish as new facts develop. It may be inadmissible at the trial as a matter of law. It may be hearsay. Its potentiality for prejudice may outweigh its tendency to prove guilt. It may have come to light as the product of an unconstitutional search and seizure. If it is ultimately admitted at the trial, the possibility of prejudice still exists, for it had entered the minds of potential jurors without the accompaniment of cross-examination or rebuttal. [¶] The goal of a fair trial in the locality of the crime is practically unattainable when the jury panel has been bathed in streams of circumstantial incrimination flowing from the news media.” (Corona v. Superior Court (1972) 24
The result of this massive publicity about petitioner, the victims, the brutal nature of the crimes, and the “evidence” tending to point to his guilt, was predictable and understandable. All indications are that the community was shocked and horrified—and that it held petitioner responsible. The reactions of the crowd that gathered to watch petitioner‘s arrest are one powerful indication of this general attitude. In addition, a Contra Costa County supervisor, in a column that appeared in two county newspapers, said, “Such events stir a passion and hatred for the suspect.” A local judge felt it necessary to disqualify himself from petitioner‘s case because of “the very real prejudice” he had toward petitioner. He said, “I think if he‘s guilty he‘s an animal. . . .”
In light of the barrage of prejudicial publicity, and the strong indications of bias and hostility in the community, the majority‘s conclusion that there is no doubt that petitioner can obtain a fair trial in Contra Costa County is unsupportable. Virtually all of the factors relied on in prior change of venue cases are present here: sensational and brutal crimes; inflammatory or prejudicial publicity; widespread discussion of incriminatory evidence; a defendant who lacked even family support and, as an ex-felon with a lengthy record, was of low status in the community; a prominent and respected victim; “pervasive civic involvement in the fate of a victim” (Maine, supra, 68 Cal.2d at p. 385); financial disputes relating to the case.
The majority express a fear that if a change of venue is ordered in this case, venue will have to be changed in every capital case. I do not agree. This case involved sensational features which naturally led to extensive publicity: a brutal, gory stabbing, a massive police manhunt, the death of a young, well-respected police officer who was survived by a young family and a pregnant wife.3
As Justice Mosk said in Frazier v. Superior Court (1971) 5 Cal.3d 287, 295 [95 Cal.Rptr. 798, 486 P.2d 694], “This was not an ‘ordinary’ homicide, such as all too often occurs in the course of a robbery of a liquor store or a service station, or during a family dispute; we entertain no doubt that the defendants in
I also cannot agree with the majority‘s assertion that the size of Contra Costa County and the geographic distribution of its populace dispel the presumption of prejudice created by this extensive publicity. The size of the county is but one of the factors which must be considered in evaluating a motion for a change of venue. (Martinez, supra, 29 Cal.3d at p. 578.) This court has taken care to emphasize that “a large city may . . . also become so hostile to a defendant as to make a fair trial unlikely.” (Maine, supra, 68 Cal.2d at p. 387, fn. 13; see also Fain v. Superior Court (1970) 2 Cal.3d 46, 52, fn. 1.) The Courts of Appeal have taken this possibility seriously, ordering venue changes from San Mateo County (Steffen v. Municipal Court (1978) 80 Cal.App.3d 623) and Los Angeles County (Smith v. Superior Court (1969) 276 Cal.App.2d 145.)
The decision to require a change of venue turns not on a mechanical measurement of the size of the county, but on an evaluation of the extent of the publicity and the effect it probably had on the community. Population size may help in judging that effect, but it cannot be determinative per se. Larger counties, for instance, may have newspapers with wider circulation—and thus be just as infected by prejudicial pretrial publicity as a smaller county with only a local press.
The majority here admit that three newspapers flooded their readership with publicity about petitioner‘s case, the Contra Costa Times, the West County Times, and the North East Bay Independent and Gazette. Their assumption that this publicity remained in the western third of the county is not supported by the record.
First, the Contra Costa Times, which covered all aspects of petitioner‘s case extensively, is a countywide newspaper. It is the largest paper in the county, with a circulation of 100,000.4 Second, although the West County Times and the North East Bay Independent and Gazette are published in the western portion of the county, nothing in the record indicates that they were purchased and
The majority also rely heavily on the passage of time since the homicides occurred. Petitioner acknowledges that the heaviest barrage of publicity occurred during the weeks immediately following the killings. However, a steady stream of coverage has continued since then. Testimony at the preliminary hearing was printed in great detail. “[E]very procedural step taken” has been reported in depth. (Fain, supra, 2 Cal.3d at p. 50.) A number of unusual and highly memorable twists, fully covered in the press, have kept alive the memory of the initial bursts of publicity: Swartz‘s Man of the Year award; his ex-wife‘s lawsuit against his widow; the public defender‘s withdrawal from the case; a lawsuit filed by petitioner against the county, charging police brutality; and the repeated motions for change of venue.
In addition, this continuous coverage of every stage of petitioner‘s case indicates that future events will be thoroughly reported as well. Thus, it is likely that the Contra Costa newspapers will follow the progress of the case after this court renders its decision, as trial is set and jury selection begins. The detailed, prejudicial information already disseminated throughout the county will be reviewed once more in the press. Prospective jurors will be reminded of any of the details of the case they may have forgotten or overlooked in the past months.
Given this steady barrage of publicity, local residents will not have forgotten what they read and heard about petitioner and the crimes with which he is charged. Since all doubts about the effect of such publicity must be resolved in favor of a change of venue, I think it clear that petitioner has more than amply demonstrated the need for such a change in his case.
The careful application of change of venue principles is of special importance in capital cases. As this court stated just last year, “when a defendant‘s life is at stake, the rule that all doubts be resolved in favor of venue change, takes on particular significance. Neither an accused whose life hangs in balance nor the authorities charged with enforcing and administering the law should be required to face the possibility of a second trial when, as here, we face acute dangers to an impartial trial and when we can avoid them by the simple expedient of a change of venue.” (Martinez, supra, 29 Cal.3d at p. 585.)
In addition to the gravity of the offense and its consequences both for the accused and for society, capital cases differ from other criminal prosecutions in
Where a death penalty case is tried in a county in which there has been extensive publicity, a significant proportion of the community will become ineligible to serve on the jury. Those excused because of their exposure to pretrial publicity are likely to be the most honest, self-aware, and informed members of the jury pool. (See People v. Harris (1981) 28 Cal.3d 935, 983 [dis. opn. of Bird, C. J.].) “Whatever the impact of the removal of these jurors upon the guilt determination, the impact on the penalty phase is likely to be devastating. At that phase, where jurors are given the most discretion and where the jury verdicts are supposed to express that undefinable quality known as the conscience of the community, the law removes from the jury those who are most informed about the community.” (Ibid.)
A simple change of venue would remove this obstacle to a fair, representative guilt and penalty phase jury. That remedy should be used here. “Why courts should hesitate to grant a change of venue in a proper case, I cannot understand. . . . [Is] it feared the defendant would escape if he were allowed a fair trial?” (People v. Suesser (1901) 132 Cal. 631, 635 [64 P. 1095].)
II.
In addition to misapplying settled standards governing motions for change of venue, the majority opinion errs in establishing a new procedure for trial court and appellate review of such motions. Although at one point the opinion purports to intend no change in the well-established law, specific language in part IV, as well as the overall thrust of the discussion, makes it clear that a substantial change will inevitably result from today‘s decision.
The majority assert that they “do not deviate” from the principle that any doubt as to the necessity for a change of venue should be resolved in favor of
However, language elsewhere in the opinion belies this claim of adherence to the settled rule. The majority opinion discusses with apparent approval the advantages of considering a change of venue motion only after voir dire. At that time, according to the majority, the decision can be based on “more precise measurement and evaluation” and facts, rather than on “speculation.” (Maj. opn., ante at pp. 943-944, 946-947.)
As I read this language, the implicit instruction to the lower courts is that decisions on change of venue motions may be postponed until after voir dire. Only when unusual circumstances force the court to change venue immediately must such a motion be granted before jury selection begins. The majority thus appear to establish a preference for resolution of change of venue motions after voir dire.
With due respect, such a preference would be impractical, contrary to precedent, and based on an inaccurate perception of the efficacy of voir dire. Further, it would eliminate any possibility of pretrial appellate review of change of venue motions.
The majority indicate that motions to change venue should be renewed after voir dire, so that they can be decided based on “facts” rather than “speculation.” Just when does the majority expect the motion to be renewed? During voir dire it will still be premature. Even if the first potential jurors appear to be prejudiced against the accused, there will be no way to determine whether they are atypical or represent a community-wide pattern. However, once voir dire ends, the jury is ready to be sworn. When that happens, jeopardy attaches. To avoid double jeopardy problems, the accused must renew the motion after the completion of jury selection but before the official swearing of the jury—events that usually occur almost simultaneously. And whether the motion is renewed during voir dire, immediately after jury selection is completed, or during trial, there will be no time to prepare the motion, no time to obtain transcripts of voir dire, and, realistically, no likelihood of convincing the trial court to grant the motion.
Not only is the majority‘s apparent preference for a post-voir dire motion impractical, it is also based on the discredited notion that voir dire will expose the exact level of prejudice in the community. This court has repeatedly noted that voir dire is often ineffective in uncovering bias. “In an antagonistic atmosphere ‘there will remain the problem of obtaining accurate answers on voir dire—is the juror consciously or subconsciously harboring prejudice against the accused resulting from widespread news coverage in the community [?]’ ” (Maine, supra, 68 Cal.2d at p. 380.) Even where “all of the jurors selected claim[] the ability to sit impartially, such a claim is of course not conclusive.” (Tidwell, supra, 3 Cal.3d at p. 73.)
As the Court of Appeal noted in Corona v. Superior Court, supra, 24 Cal.App.3d at pages 878-879, “Questioned on voir dire as to the effect of the media‘s evidentiary disclosures, one prospective juror may deny or admit awareness, another disclaim or admit prejudgment. One may falsely deny both knowledge and prejudice for the sake of a place on the jury. An honest juror may admit knowledge or tentative prejudgment and find himself excluded. Many will sincerely try to set aside their preconceptions and give assurance of impartiality, yet unconsciously bend to the influence of initial impressions gained from the news media.” Continuing in footnote 6, at page 879, the court added, “Authoritative decisions now recognize the lack of realism inherent in expectations that jurors can insulate their verdict from inadmissible knowledge. [Citations.] [¶] When prejudicial publicity has been injected into jurors’ consciousness, the courts do not give dispositive effect to jurors’ assurances of impartiality. [Citations.] [¶] ‘To expect a juror to confess prejudice is not always a reliable practice. A juror can be completely honest in denying prejudice. In the words of Alexander Pope, “All looks yellow to the jaundiced eye.” ’ [Citation.]”
In addition, there is the danger in any well-publicized case that the very process of voir dire, with its repeated questions about publicity and prejudice, will tend to prejudice the jury. Listening to other jurors’ comments and observing the widespread press and community involvement in the case, the jurors are
Perhaps the most serious problem with the majority opinion is its failure to acknowledge that postponing serious review of these motions until after voir dire would completely eliminate the possibility of pretrial appellate review of change of venue motions. As the court said in Maine, “It would be inopportune . . . to permit a defendant to seek mandamus during or after empaneling the jury. [Citation.] Due regard for the orderly progress of a trial dictates that a defendant apply for a writ of mandate in advance of trial . . . .” (Maine, supra, 68 Cal.2d at p. 381.) And just two years after Maine was decided, this court reemphasized that a writ of mandate generally is not available after voir dire begins, pointing out that Maine “recognized that mandate should lie only in advance of jury selection to avoid disruption of the ‘orderly progress of a trial . . . .’ ” (Tidwell, supra, 3 Cal.3d at p. 68, italics added.)
Consideration of the practicalities of the situation demonstrates the wisdom of this rule. When the trial court has denied a motion for a change of venue both before and after voir dire, with the trial about to start, how could a defendant possibly seek appellate review? The trial would have to be stayed, at great inconvenience to the jury and witnesses. And what court will issue such a stay, especially if jeopardy has attached? Once again, there will be no time to thoroughly prepare the writ, or even the request for a stay, and no time to review transcripts of the voir dire. Appellate review after the completion of voir dire is barred by the lack of time as well as by the rule enunciated in Maine and Tidwell.6
III.
I must dissent both from the majority‘s application of standard change of venue principles to this case and from its unwise tampering with the procedure by which motions for venue change should be decided. I would issue the writ.
MOSK, J.—I join the dissent of the Chief Justice.
In doing so, however, I cannot be oblivious to the considerable burden on the administration of justice and the cost to the public resulting from the change of venue in a major case. The defendant, the victims, prosecutors, defense counsel, security officers, records and exhibits must be transported from the county of origin to a relatively distant county. Perhaps the most serious problem is inconvenience to the many witnesses, some of whom may have been only fortuitously involved and are resentful. Thus the migration process appears to be improvident, at least compared to an available alternative used in a number of other states.
Instead of moving the case out of the county when there is a substantial likelihood that the public, i.e., available jury panel, has been infected by prejudicial publicity, a more simple and less costly expedient would be to import a jury venire from outside the county, and, if necessary, sequester the selected jury during the course of the trial. This process has been used in Pennsylvania, Washington, Wisconsin, Illinois, North Carolina, Kentucky and New Hampshire. Similar proposals are being considered in a number of other states, in-
Since the foregoing proposal and its logistical format require legislative authorization, I cannot do more in the instant case than agree with the views of the Chief Justice. Perhaps the Legislature, after a cost and convenience comparison, will consider the scheme found by other states to be a practical solution.
Petitioner‘s application for a hearing by the Supreme Court was denied January 19, 1983. Grodin, J., did not participate therein. Bird, C. J., and Mosk, J., were of the opinion that the application should be granted.