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State v. House2/24/1999
air trial cannot be obtained in a particular venue. In New Mexico, when we analyze the presumption that a particular venue was tainted by prejudicial publicity, we will rest our Conclusions on the "reasonable probability" standard of proof, rather than limiting the presumption, as do federal courts in the constitutional arena, only to the most extreme situations. Nevertheless, the publicity must be demonstrably prejudicial in order to support a trial court's determination that an unfair trial is reasonably probable. That standard been emphatically established in this case. The publicity in this case was, in fact, extreme, if not outrageous. As Judge Blackmer stated in his Order, " ut for this heavy television coverage of the 12/24/92 tragedy and its aftermath and the comments of public officials about this case, there is a good likelihood that change of venue from Bernalillo County in March 1994 and thereafter would not have been necessary." Venue Order, slip op. at 10 (Finding of Fact 17).
{58} Prejudice may be established if a community is so saturated by a barrage of inflammatory and biased publicity, close to the beginning of legal proceedings, that the trial inevitably takes place in an atmosphere of intense public passion. See Irvin, 366 U.S. at 727-28 (discussing publicity causing opinion of guilt to permeate minds of jurors); Coleman v. Kemp, 778 F.2d 1487, 1539-43 (11th Cir. 1985) (concluding trial court's denial of motion to change venue was clearly erroneous given pervasive prejudicial pretrial publicity). Under such circumstances there is a reasonable probability that prospective jurors were exposed to the sensational publicity, as well as the emotional atmosphere in the community, and that many of them are strongly predisposed for or against one of the parties in the case. See Dischner, 974 F.2d at 1524 (discussing publicity "that proclaimed the defendants' guilt in advance of the trial and precluded the jurors from independently evaluating the evidence").
{59} Courts that have investigated the presence of presumed prejudice in a particular venue have discussed several factors that indicate prejudice from pretrial publicity has evolved to such a degree that a fair trial is improbable. These factors establish the reasonable probability, under Section 38-3-6, that a fair could not be obtained in Taos.
1. Neutrality and timing of publicity
{60} As both sides in the opinion below noted, the mere fact that publicity is widespread and that many people are familiar with a case does not automatically lead to the presumption that a venue has been impermissibly tainted. House Majority, 1998-NMCA-018, 13; House Dissent, 1998-NMCA-018, 80; see also Chamberlain, 112 N.M. at 726, 819 P.2d at 676. Much depends on the nature of the publicity. News articles and broadcasts, even if pervasive and frequent, will not be found prejudicial if they are fair, neutral, unemotional, "and generally limited to a recitation of established facts." Snell, 14 F.3d at 1294. Also relevant is whether the publicity, even if it was emotional and opinionated, occurred close to the time of the trial. If detrimental articles and broadcasts appeared months or years before the beginning of a trial, the probability of prejudice is significantly reduced. See Patton, 467 U.S. at 1034 ("That time soothes and erases is a perfectly natural phenomenon, familiar to all."); Murphy, 421 U.S. at 802 (last significant publicity was seven months before jury selection).
{61} As the news items cited in the fact section of this opinion demonstrate, the pretrial, during-trial, and post-trial publicity in this case could not be characterized as largely fair, neutral, unemotional,
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