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State v. Johns12/5/2000
o 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. Murphy v. Florida, 421 U.S. 794, 799 (1975). To invoke the doctrine announced in Irvin, there must be a "pattern of deep and bitter prejudice" or a "wave of public passion" such that the seating of an impartial jury is impossible. Irvin, 366 U.S. at 727-28; see also McVeigh, 153 F.3d at 1181.
Johns relies heavily on Marshall v. United States, 360 U.S. 310 (1959), for the proposition that pretrial publicity alone is sufficient to require a reversal under the facts of this case. Though Marshall does present a comparable set of facts, the Court in that case was acting expressly " n the exercise of supervisory power to formulate and apply proper standards for enforcement of the criminal law in the federal courts." Marshall, 360 U.S. at 313 (emphasis added). "In the face of so clear a statement, it cannot be maintained that Marshall was a constitutional ruling now applicable, through the Fourteenth Amendment, to the States." Murphy, 421 U.S. at 798.
A more appropriate comparison is made to Patton v. Yount, 467 U.S. 1025 (1984). In Patton, the Court examined a jury pool in which all but 2 of the 163 venirepersons had heard about the case. Patton, 467 U.S. at 1029. In addition, 126 of the 163 venirepersons said that they would carry an opinion into the jury box. Id. Following jury selection, 8 of the 14 jurors and alternates actually seated admitted that at some time they had formed an opinion as to the defendant's guilt. Id. One juror and both alternates indicated that they would require evidence to overcome their beliefs. Id. In the face of this vast publicity and the predisposition of several jurors, the Court upheld the conviction. Id. at 1031-35. The Court concluded that the passage of time had soothed any public sentiment surrounding the case. Id. at 1031-35. In other words, the Court did not find the "huge . . . wave of public passion" similar to that which led to reversal in Irvin. Id. at 1033. The Court further noted that as to any individual juror, the question is one of historical fact, "did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed." Id. at 1036.
Likewise in Murphy v. Florida, the Court addressed a case in which 70 of the 78 prospective jurors were excused. Murphy, 421 U.S. at 797. Of these, 30 were excused for miscellaneous personal reasons, 20 were excused peremptorily by the defense or prosecution, and 20 were excused by the court for having prejudged the defendant. Id. Following the selection of the final 8 venirepersons, the trial court overruled a motion to dismiss the jury or change the venue, though the evidence suggested that the jury was exposed to pretrial publicity concerning the defendant's prior convictions for theft and murder. Id. One of the jurors even evidenced a predisposition to convict. Id. at 801. Despite these facts, the Court found that Irvin did not apply. Id. at 803. Again, the Court did not find a wave of public passion sufficient to overcome the jurors' assertions of impartiality. The Court concluded that the large number of excused venirepersons "by no means suggests a community with sentiment so poisoned against [the defendant] as to impeach the indifference of jurors who displayed no animus of their own." Id.
As in Patton and Murphy, we find no "wave of public passion" in this case. Jury selection took place hundreds of miles from the trial location and almost two years had elapsed between the time of Johns' capture and the time during
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