IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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MOTION TO CONTROL PREJUDICIAL PUBLICITY

COMES NOW, JOHN CLIENT, by counsel, and petitions this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution, and other law set out below, to stay his trial and to order that proceedings be closed to the press, and/or that a change of venue be ordered in this case. In support of his petition, Mr. CLIENT states as follows:
1. Mr. CLIENT is before this Court charged with murder arising out of a highly publicized homicide in this community. The District Attorney has announced his intention to seek the death penalty.
2. There has been massive, highly prejudicial publicity throughout this area regarding this case. [Note to counsel: Here set out the nature, scope and tone of the media coverage. Set out the impact of the publicity on the community.]
3. Exceptionally prejudicial publicity, emanating almost exclusively from state officials and Court proceedings has continued to this date. [Note to counsel: Give examples.]
4. Coverage of the proceedings herein not only results in the dissemination of prejudicial information revealed at those hearings but also triggers the recounting by the media of the history of this case, including the defendant's previous convictions, and alleged involvement in other criminal activities.
5. The Supreme Court noted in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966), that "[g]iven the pervasiveness of modern communications and the difficulty of erasing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused." Id. at 362. In Gannett Co. v. DePasquale, 443 U.S. 368, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979), the Supreme Court held that in certain circumstances, the closure of pretrial hearings may be constitutionally required to ensure a fair trial:
Closure of pretrial proceedings is often one of the most effective methods that a trial judge can employ to attempt to insure that the fairness of a trial will not be jeopardized by the dissemination of such information throughout the community before the trial itself has even begun.

Id. at 378-79. Indeed, it is significant that Mr. CLIENT is asking to close not the trial, but the pretrial proceedings, since "[c]losed pretrial proceedings have been a familiar part of the judicial landscape in this country. . . ." Id. at 390.
6. It is clear which constitutional right must win out when the accused's right to a fair trial is balanced against the public's right to know, for "[n]o right ranks higher than the right of the accused to a fair trial. . . ." Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (Press-Enterprise I). While there is a limited First Amendment right of access to court proceedings, it must always remain subservient to the accused's right to a fair trial:
When the rights of the accused and those of the public come irreconcilably into conflict, the accused's Sixth Amendment right to a fair trial must, as a matter of logic, take precedence over the public's First Amendment right of access to pretrial proceedings.

In re Globe Newspaper Co., 729 F.2d 47, 53 (1st Cir. 1984) (up-holding closure of bail proceedings to press and public); Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 564, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) (court must "protect the defendant's superior right to a fair trial").
7. The trial court was required to ask two questions in ruling on closure, "first, [whether] there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, [whether] reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights." Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 14, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (Press-Enterprise II).
[Note to counsel: answer these questions in context of your case.]
8. The trial court should consider "reasonable alternatives to closure. . . ." State v. Eaton, 483 So. 2d 651, 662 (La. App. 2d Cir. 1986); accord Press-Enterprises II, 478 U.S. at 14; Press-Enterprises I, 464 U.S. at 825; Richmond Newspapers, 448 U.S. at 580-81. The Second Circuit suggested that a "change of venue . . . might be [among] reasonable alternatives in an effort to avoid the prejudicial effect of pretrial publicity." Id. at 662. The trial court apparently felt that it was sufficient merely to intone the words "change of venue" at the closure hearing, without either allowing the defense to present evidence on the need for a change of venue, or actually making a decision on the issue. Thus, the trial court said he would consider venue at the time of jury selection.
9. This is self-evidently insufficient. There has been--and certainly will have been by the time of trial, with the mounting publicity that will come absent closure of the hearings--sufficient media coverage of this case to meet the presumed prejudice standard, mandating a change of venue. See Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963). "Prejudice is presumed from pretrial publicity when (1) pretrial publicity is sufficiently prejudicial and inflammatory, and (2) the prejudicial pretrial publicity saturated the community where the trials were held." Coleman v. Zant, 708 F.2d 541 (11th Cir. 1983) (Coleman I) (citing Rideau v. Louisiana; Sheppard v. Maxwell, 384 U.S. at 352-53; Estes v. Texas, 381 U.S. 532, 543-44, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965) (presumed prejudice from television in the courtroom, even after change of venue granted)); see also Coleman v. Kemp, 778 F.2d 1487 (11th Cir. 1985), cert. denied, 90 L. Ed. 2d 730 (1986) (Coleman II); Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir. 1980), cert. denied, 451 U.S. 913 (1981); Johnson v. State, 476 So. 2d 1195, 1210, 1214-15 (Miss. 1985) (change of venue is "automatically" required when prejudicial publicity has "saturated" the community). Certainly, publicity and gossip have saturated this community, and it must be presumed that any jury selected from the community will be prejudiced.
10. Under such circumstances, jurors' well-intentioned protestations of their own impartiality cannot govern the trial court's decision, and a change of venue must be granted. In other words, even if the jurors protest on voir dire that they can be fair, the trial court is bound to find otherwise. See Irvin v. Dowd, 366 U.S. 717, 728, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961) (rejecting argument that taint was cured by voir dire, although "[n]o doubt each juror was sincere when he said he would be fair and impartial to petitioner"); see also Brinlee v. Crisp, 608 F.2d 839, 845 (10th Cir. 1979), cert. denied, 444 U.S. 1047 (1980) ("[t]he jurors' assurances that they are equal to the task are not dispositive of the rights of the accused"); United States v. Williams, 568 F.2d 464, 471 (5th Cir. 1978) ("[t]he effect of exposure to extra-judicial reports on a juror's deliberations may be substantial even though it is not perceived by the juror himself, and a juror's good faith cannot counter this effect"); Silverthorne v. United States, 400 F.2d 627, 639 (9th Cir. 1968), aff'd after retrial, 430 F.2d 675 (9th Cir. 1970), cert. denied, 400 U.S. 1022 (1971); United States v. Polizzi, 500 F.2d 856, 879 (9th Cir. 1974), cert. denied, 419 U.S. 1120 (1975); Bloeth v. Denno, 313 F.2d 364 (2nd Cir. 1963), cert. denied, 372 U.S. 978 (1963) (jury could not honestly be found to be impartial in spite of the fact that jurors gave assurances of impartiality); Delaney v. United States, 199 F.2d 107, 112-13 (1st Cir. 1952).
11. Therefore, in order to meaningfully consider a change of venue as an alternative to closure, the trial court must grant Mr. Client's motion to move the trial now, or at the very least allow him to present the evidence that will show that he is entitled to such a move.
12. To do otherwise is to sanction the spread of further prejudice, and yet allow the accused to do nothing about it. In State v. Bell, 315 So. 2d 307 (La. 1975), the Court held that a weighty consideration in the decision to change venue would be "the connection of government officials with the release of the publicity. . . ." Id. at 311. In this case the trial judge, clearly a government official, has sanctioned the release of highly prejudicial information to the press in the forthcoming suppression hearings. This is tantamount to the intentional dissemination of highly prejudicial material at the behest of a government official.
WHEREFORE Mr. CLIENT moves that this Court order that the up-coming suppression hearings be closed to the media, or that venue be changed to a parish where he will get an impartial jury, or at the very least that he be allowed a proper hearing on the developing prejudice against him in the community.
PRACTICE NOTE: Certificate of service must include media representatives.
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