Balancing rights in Peterson trial

When a superior court judge in Stanislaus County granted accused killer Scott Peterson a change of venue Thursday, he did two things:

He gave the 31-year-old former fertilizer salesman a shot at a fair trial. He also guaranteed that it will be months before Peterson is tried for the murders of his wife, Laci, and their unborn son, and that the expense of conducting the case will be significantly greater than it would have been had the proceedings remained in Modesto. That’s where the couple lived, until the young woman disappeared on Christmas Eve in 2002, and where her husband entered his plea of not guilty to both murder charges.

Such delay and expense automatically cause fingers to point, and virtually all are being aimed at the press, whose saturation coverage of the case was cited by Judge Al Girolami as the principal reason for his decision. The local newspaper, he pointed out Thursday, has published more than 150 articles on the case. They are but a tiny fraction of the more than 8,000 stories about the Petersons that have been printed or broadcast around the world over the past year.

Girolami accepted defense attorney Mark Geragos’ argument that the net effect of that publicity on Stanislaus County’s 480,000 residents has been to make the expectant mother “a posthumous celebrity, loved and cherished by the community, whereas Mr. Peterson has been demonized as an evil outsider to the community.” Girolami, in fact, noted that 3,000 local residents attended the dead woman’s memorial service and that a large and hostile crowd gathered outside the jail on the day of Scott Peterson’s arrest.

Whatever the consequent dislocations, legal experts generally were agreed that the judge made the right call:

“This one really is a no-brainer,” said Jane Kirtley, the Silha Professor of Journalism and Law at the University of Minnesota and a leading authority on media ethics.

“I really don’t think the judge had any choice in this instance,” said Lois Heaney, who as president of the National Jury Project West is a nationally recognized consultant on jury selection.

The most difficult questions confronting our society almost invariably arise over the exercise of two legitimate, but momentarily antagonistic rights. As Heaney puts it, “Our Bill of Rights inherently requires a balancing act between freedom of the press and a defendant’s right to a fair trial.”

But both Heaney and Kirtley agree that striking that balance requires far more than weighing the sheer volume of press coverage. If the simple number of reports were the only factor to be considered, for example, then the emergence of the 24-hour cable news cycle and of broadcast magazine shows with an insatiable preoccupation with sensational crimes would seem to make change of venue a hollow legal remedy.

After all, television viewers from Chula Vista to the Oregon border watch the same ubiquitous television chat shows as the potential jurors in Modesto. Moreover, the hunger for on-camera interviews with anybody connected with these cases has created the opportunity for skillful defense attorneys to spin pretrial publicity in their clients’ direction, just as prosecutors have for generations.

Stanislaus County District Attorney James Brazelton, for example, argued that Geragos’ own television appearances created much of the pretrial publicity he later argued had prejudiced his client’s right to a fair trial. “It would be absurd to reward the defense by granting a change of venue for their conduct that has caused much of the publicity of which they complain,” he told the judge this week.

“The 24-hour news cycle does seem to raise the question of whether anybody can get a fair trial anywhere anymore,” said Kirtley. “But people, particularly in judicial circles, tend to overestimate the impact of pretrial publicity on potential jurors. For example, I was working in Washington, D.C., when televised news reports showed videotape of [former mayor] Marion Barry buying cocaine in a hotel room. He subsequently was acquitted of those charges by a D.C. jury. Clearly, the media is only one piece of the puzzle when it comes to a fair trial.”

In Heaney’s view the new television news environment does “give the defense a new level of access to the media. But the issue isn’t equality of media access between the defense and prosecution, but the cumulative impact of all media on the potential jury pool.” In that context, she points out, studies have shown that when most people read a newspaper, they focus first on news that is physically close to them. In the case of pretrial publicity, that may magnify the media’s impact in the community where the alleged crime occurred.

“You don’t expect potential jurors to live under rocks,” Heaney said. “But the publicity surrounding the Peterson case has created a unique situation in Modesto. People there walk around talking about ‘Laci’ and ‘baby Connor,’ ” as the couple had planned to call their son. “The situation that’s been created there is similar to what happened with Richard Allen Davis,” who abducted and murdered Polly Klaas, Heaney said. “Certainly, everyone in the state followed that case, but in Petaluma, where the family lived, parents wouldn’t let their children out of their sight. The cumulative impact of all the publicity was qualitatively different among Polly Klaas’ neighbors than it was, say, in San Diego.

“When it comes to a fair trial,” she said, “we’re not seeking ignorant jurors, but dispassionate ones.”

Kirtley recalled that Nebraska Press Assn. vs. Stuart, the case that set the standard by which Girolami reached his decision this week, involved a trial that “was as big a story as the Scott Peterson case in its era.” In fact, it was the case that Truman Capote ultimately reconstructed in his book “In Cold Blood.” (It is one of this media-saturated hall-of-mirrors-ironies that one of the stars of the film made from that nonfiction classic, Robert Blake, is now himself a celebrity murder defendant.)

The 1976 Nebraska case grew out of the trial of Erwin Charles Simants, who was accused of murdering six members of the Kellie family in the rural town of Sutherland. The trial judge was so concerned about the impact of publicity on the small community that he ordered journalists not to publish reports on information gleaned from open hearings. The Nebraska Press Assn. appealed the gag order, and the U.S. Supreme Court struck it down, noting that other remedies -- including a change of venue -- could be used to preserve the defendant’s right to a fair trial.

“We naturally prefer to try criminal defendants in the place where they live for all sorts of reasons,” Kirtley said. “But in the Nebraska case, the Supreme Court pointed out that jurors can be tainted by things other than publicity, including small-town gossip” -- which is why the case remains a fulcrum in the constant struggle to balance 1st and 6th Amendment rights.