State v. Biegenwald3/5/1987
umber of residents in the parish where defendant was to be tried. The Court reversed the denial of defendant's motion to change venue, observing that " ny subsequent court proceeding in a community so pervasively exposed to such a spectacle could be but a hollow formality." Id. at 726, 83 S. Ct. at 1419, 10 L. Ed. 2d at 665.
In contrast, in Murphy v. Florida, supra, 421 U.S. 794, 95 S. Ct. 2031, 44 L. Ed. 2d 589, defendant, referred to by the national media as "Murph the Surf," had attained notoriety for his complicity in the theft of the Star of India sapphire from a New York museum. His 1970 robbery prosecution in Dade County, Florida, was preceded by widespread publicity during 1968 and 1969, but the publicity largely ceased seven months before jury selection. In rejecting defendant's contention that the pretrial publicity required a change of the venue for trial, the Court distinguished the intrusiveness of the publicity from that found in Rideau, supra, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663; Sheppard v. Maxwell, supra, 384 U.S. 333, 86
S. Ct. 1507, 16 L. Ed. 2d 600; and Estes v. Texas, supra, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543. The Court observed:
The proceedings in [those] cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob. They cannot be made to stand for the proposition that juror exposure to information about a state defendant's prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process. To resolve this case, we must turn, therefore, to any indications in the totality of circumstances that petitioner's trial was not fundamentally fair.
[421 U.S. at 799, 95 S. Ct. at 2036, 44 L. Ed. 2d at 594.]
It is abundantly clear to us that this is not a case in which the trial court was required to presume the existence of prejudice prior to the jury voir dire. The extensive pretrial publicity was concentrated in April and May, 1983. In addition to prohibiting further public comment by counsel, the trial court adjourned the trial date until mid-November, allowing nearly six months to permit the impact of the publicity to subside. As the Court stated in Patton v. Yount, supra, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d 847, rejecting defendant's argument that his retrial, four years after his first highly publicized trial, was tainted by the earlier publicity, "the passage of time . . . can be a highly relevant fact . . . [that] rebuts any presumption of partiality or prejudice. . . ." Id. at 1035, 104 S. Ct. at 2891, 81 L. Ed. 2d at 856.
It has frequently been noted that pervasive pretrial publicity does not necessarily preclude the likelihood of an impartial jury. We observed in State v. Williams, supra, that
there is also some reason to believe that even in highly publicized cases the venire will contain many individuals who have not been exposed to the publicity or who, if exposed, are only faintly aware of the nature of the case. See, e.g., United States v. Ehrlichman, 546 F.2d 910, 916-17 n. 8 (D.C.Cir.1976) [ cert. den., 429 U.S. 1120, 97 S. Ct. 1155, 51 L. Ed. 2d 570 (1977)]; United States v. Haldeman, 559 F.2d 31, 61-63 (D.C.Cir.1976) [ cert. den. sub nom. Mitchell v. United States, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250 (1977)]; State v. Joyce, 160 N.J. Super. 419, 430 (Law Div.1978).
[93 N.J. at 66 n. 10.]
We therefore conclude that under the circumstances of this case, the ap
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