Can Tsarnaev, Hernandez, Holmes get fair trials?

How selecting a jury really works
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  • Major trials are about to begin after heavy pretrial publicity
  • Danny Cevallos says a barrage of pretrial publicity doesn't necessarily prejudice a jury trial

Danny Cevallos is a CNN legal analyst, criminal defense attorney and partner at Cevallos & Wong, practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author.

(CNN)The start of 2015 has yielded a macabre bumper crop of high-profile cases, and they are all going to trial.

Though the facts differ wildly in each case, there is a common issue running through them: Is it possible to guarantee a defendant's right to a fair trial if there is a deluge of unfavorable media coverage before a jury is even selected?
Four trials are beginning at roughly the same time: Dzhokhar Tsarnaev, Aaron Hernandez, Eddie Ray Routh, James Holmes.
This is quite a fusillade of high-profile trials.
By way of example last year, one high-profile case captivated viewers: The trial of a disabled world-class sprinter we'd mostly never heard of, in a sport that is newsworthy for exactly half an hour every four years during the Olympics. Plus, this all happened some 10,000 miles away from American shores in South Africa, which meant that by the time most (unemployed) Americans woke up, most of the trial was already over. Yet, the interminable murder trial of Oscar Pistorius occupied much of the media during its intermittent installments.
Any one of this year's infamous trials have the potential to spark comparable, if not greater, coverage. Compare Aaron Hernandez with Pistorius: Hernandez was a multimillion dollar superstar in the media juggernaut NFL, a sport that is newsworthy year-round, 24 hours a day -- and his might not even be the highest-profile trial this season. In fact, Hernandez's might not even be the most notorious trial in Massachusetts this year.
That title goes to the young man the media dubbed the "Boston Bomber," Dzhokhar Tsarnaev, who, along with his brother Tamerlan, allegedly terrorized not only the city's marathon but a large swath of the surrounding neighborhoods. The only reason this case isn't commanding more attention is because federal courts do not allow cameras, so even the most compelling federal trials involving multiple killings and terrorism generate less interest than the sordid details of the televised state court murder trial of Jodi Arias -- even though it featured only one victim.
Then there's James Holmes, the "Colorado Shooter" who in July 2012 allegedly shot and killed 12 people and wounded 58 others in a crowded movie theater in Aurora, Colorado. The judge in this case ruled that the trial could be televised. This will be an interesting experiment: Will the Holmes trial garner more attention than the other cases simply because it's going to be aired?
Most Americans only recently became familiar with Eddie Ray Routh because of the spate of interest generated by the blockbuster hit film "American Sniper." Chris Kyle, the author of the book of the same name and who was portrayed by Bradley Cooper in the film, was shot and killed February 2, 2013. A Marine Corps veteran, Routh, 25, now faces murder charges as a result. This is also an interesting case because, while there was coverage beforehand, the release of the Bradley Cooper movie has made Routh more likely to be a household name.
The issue of pretrial publicity and fairness brings two constitutional principles head to head. Courts must balance the freedom of expression guarantee of the First Amendment against the Sixth Amendment, without infringing upon that guarantee of a fair trial by an impartial jury. Pretrial publicity may be pervasive, but exposure to publicity by itself is insufficient to establish an unfair trial. A constitutional violation instead requires proof of actual or presumed prejudice as a result. This is not an easy standard to meet.
Yet studies confirm what defense attorneys have insisted for years: pretrial publicity can fatally taint a jury. One famous study in 1975 showed that 80% of jurors exposed to prejudicial articles convicted while only 39% of control jurors did likewise.
Perhaps the most famous case about pretrial publicity is the 1954 trial of physician Sam Sheppard for the murder of his wife. If you don't remember the case, you remember "The Fugitive," the TV show and the blockbuster film believed to be loosely based on it.
Ultimately the Supreme Court reversed Sheppard's second degree murder conviction because of the overwhelming negative news coverage, which published extensive details about extramarital affairs and other incriminating evidence.
In reversing the murder conviction, the Supreme Court chastised the trial court judge's "fundamental errors" in conducting the trial and failing to protect the defendant's due process, "compounded by the holding that it lacked power to control the publicity about the trial."
And that was in 1966!
That was all long before the Internet; before Facebook and tweeting from the courtroom. It was more than a decade before the start of the 24-hour news cycle of cable TV!
The holding in the Sheppard case that media coverage can violate the fair trial requirement is an exception and not the rule. Courts will rarely find a Sixth Amendment violation for pretrial publicity after the fact. Similarly, courts are hesitant to impose free expression restraints prior to trial, too.
In Nebraska Press Assoc. v. Stuart, the Supreme Court stopped short of banning prior restraints, but warned that restricting coverage is usually going to be held unconstitutional.
Under the test applied by the Suprme Court, other courts considering restraining orders should examine: A) the extent of pretrial news coverage; B) whether other measures could mitigate the effects of the publicity; and C) whether a restraining order would actually prevent the threat of publicity.
Ultimately, however, the court recognized that pretrial publicity -- even pervasive, adverse publicity -- does not inevitably lead to an unfair trial. The capacity of the jury eventually impaneled to decide the case fairly is influenced by the tone and extent of the publicity, which is in part, and often in large part, shaped by what attorneys, police and other officials do to precipitate news coverage.
In other words: For the most part, publicity is part of the price of doing business in the courthouse.
Defense lawyers have to think creatively to zealously protect their clients' fair trial rights in these high-profile cases. Judges and attorneys must carefully examine and test potential jurors' prejudices through a process called voir dire. Sequestering juries is an option, but a costly one, avoided by courts whenever possible.
James Holmes' defense attorneys have sought a number of remedies against the prosecution and law enforcement for allegedly leaking information about a package Holmes sent to his psychiatrist at the University of Colorado. In its motion, the defense argues that what it describes as the government's violations of the pretrial publicity order and the accompanying law require the court to impose severe consequences, such as appointing a special prosecutor to investigate the leak, precluding the death penalty, or excluding the officers from testifying in the case.
It's understandable why courts are reluctant to find a Sheppard-like constitutional violation: leaks or publicity usually come well after the charged crime occurred and have nothing to do with the underlying facts of the charges.
The coverage of the Sheppard trial pales in comparison to the extent of coverage of modern cases. After all, back then there were a finite set of newspapers and television channels, and in the 1950s, once the TV news broadcast signed off for the night, that was the end of any publicity at all, until the morning paper the next day. Today, cable news and the Internet is the very essence of pervasive. The Internet is like the city of Las Vegas or a diner in New Jersey: open 24 hours a day, perpetually buzzing with activity, and the real oddballs show up after 2 am.
One wonders how the Sheppard court would have decided that case today. The judicial opinion might instead have been only one sentence: "Maybe this Sheppard situation wasn't as bad as we originally thought ..."