Swindler v. State

Carleton Harris, Chief Justice, concurring. I am distressed today that it is necessary that this case be reversed because a change of venue was not granted. I will have to say, after reading this record very carefully, that I am forced to conclude that the reversal is warranted.

From the outset, this homicide received tremendous publicity, as'would be expected. The newspaper gave front page headlines, and television and radio likewise gave extensive publicity. It would have been almost impossible for people who read or listened to the reports not to have formed an opinion. Of course, the news media were entitled to give full reports of the slaying and of the arrest, and were entirely in order in using the pictures and stories appearing relative to the funeral, which were, after all, a tribute to a young officer performing his duties. But events included in some of the articles really had nothing to do with the slaying itself, and certainly could have been highly prejudicial. 1 refer to the fact that it was frequently mentioned that Swindler had allegedly committed two brutal murders of teenagers in South Carolina, and that South Carolina officers had come to Fort Smith. The fact that Swindler had a prison record was several times mentioned. In addition, stories pointed out that there were several guns in Swindler’s car and that the car was stolen. Television and radio stations gave extensive coverage and personnel of those stations testified as to their “coverage;” for instance, KFPW television has a coverage of about 28,000 homes at 5:00 p.m. and 24,000 homes at 10:00 p.m.; radio station KWHN has AM and FM circulation of 59,000 to 60,000 persons and, all in all, the entire county was “saturated” with news concerning the killing, the stories embracing several weeks. Also, a detective magazine, “Inside Detective,” distributed by S&S News Agency, Inc., and sold by Butterfield Trail newsstand in Fort Smith, carried a story entitled “God Help the Cop Who Stops This Guy.” An article with pictures appears relative to the defendant’s case. KISR radio station broadcast ads seven times a day for five days advertising this story.

Thirty people testified relative to whether Swindler could obtain a fair trial in that county (six stating that he could not obtain a fair trial and 24 stating that he could obtain a fair trial.). However, of that last 24, 23 were familiar with the South Carolina charges and 20 were familiar with the fact that Swindler had served time. While most of these people testified that they thought he could obtain a fair trial, it was noticeable that the people they talked with who expressed an opinion considered Swindler guilty; in fact, no one expressed the thought that he might be innocent.

More importantly, of 49 people 1 examined during selection of the jury, 26 stated that from what they had read and heard, Swindler “did it;” 32 were familiar with the South Carolina charges and 21 were aware of his prison record. Some of these people were excused by the court for cause.

With some others, it was necessary that the defense use a peremptory challenge (all of which were exhausted), and when the jury was finally selected, it included four persons who had stated that from what they had heard they thought the man was guilty. Now, of course, each stated that he could set this opinion aside on the basis of the evidence heard and reach a verdict based entirely on the evidence. 1-a While this was the general statement made on direct examination, the prospective jurors answered in a slightly different manner when cross-examined. One juror on the panel had heard about the people killed in South Carolina, and he stated that based on what he had read and heard, his presumption was that the defendant actually shot the officer; that his opinion “right now” is that he did it. He said before he knew he was going to be on the jury panel, he discussed the case with other people and that it was everybody’s opinion that lie was guilty, and that was his opinion, too. A motion that he be excused for cause was denied and the defendant was forced to exercise a peremptory challenge. Another person, who served as a juror, stated that she “might” have an opinion which she got' from the media, but not one that could not be changed, depending on the facts presented in evidence. She was aware that he was supposed to have murdered two people, had heard a lot of talk about the case to be tried, felt that he “probably did it,” considering all that was done and had been said. When asked if she would be able to set aside what she had heard about him being in prison and having been suspected of other crimes, the prospective juror answered, “No. It is bound to have some effect, 1 should think.” A motion to excuse for cause was denied, and this person served on the jury. Another lady who served on the jury stated that she had discussed the case with other people and that they thought it was a foregone conclusion that Swindler killed the officer. She said these people accepted the facts as they were related in the paper and on television and that she probably came up with a foregone conclusion, too. The defendant’s motion to excuse for cause was overruled and this lady served on the jury.

I will just say that I served for a number of years in the prosecuting attorney’s office and am now in my 22nd year on this court, and the prospective jurors knew more purported facts about the defendant’s background, and based on what had been heard in the news media, more had formed at least tentative opinions as to guilt, than any case 1 have ever come into contact with.

Of course, what we are confronted with is the age-old problem of trying to work out a balance between the First (free speech) and Sixth (fair trial) Amendments.

I recognize, and the courts have recognized for years, that it would be almost impossible today to draw a jury involving any prominent case where the prospective jurors would be entirely unfamiliar with any alleged facts or issues and that is the reason for the ancient rule, “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” In general, this has been sufficient to qualify a juror to serve. This was commented upon in Irvin v. Dowd, 366 U.S. 717 . In that case, six murders were committed in the vicinity of Evansville, Indiana. The defendant was arrested and shortly thereafter, police officers issued press releases widely publicized, stating that the defendant had confessed to the six murders. At his request, he was granted a change of venue to the adjoining county, but further change of venue because of inflammatory publicity was denied. Irvin was convicted, and after the con-fiction was affirmed by the Indiana Supreme Court, Irvin instituted a habeas corpus proceeding to the United States Supreme Court. The opinion, in giving some of the facts, states:

“A reading of the 46 exhibits which petitioner attached to his motion indicates that a barrage of newspaper headlines, articles, cartoons and pictures was unleashed against him during the six or seven months preceding his trial. The motion further alleged that the newspapers in which the stories appeared were delivered regularly to approximately 95% of the dwellings in Gibson County and that, in addition, the Evansville radio and TV stations, which likewise blanketed that county, also carried extensive newscasts covering the same incidents. These stories revealed the details of his background, including a reference to crimes committed when a juvenile, his convictions for arson almost 20 years previously, for burglary and by a court-martial on AWOL charges during the war. He was accused of being a parole violator. The headlines announced his police line-up identification, that he faced a lie detector test, had been placed at the scene of the crime and that the six murders were solved but petitioner refused to confess. Finally, they announced his confession to the six murders and the fact of his indictment for four of them in Indiana. They reported petitioner’s offer to plead guilty if promised a 99-year sentence, but also the determination, on the other hand, of the prosecutor to secure the death penalty, and that petitioner had confessed to 24 burglaries (the modus operandi of these robberies was compared to that of the murders and the similarity noted).”

Many of the stories identified' the defendant as a parole violator and fraudulent-check artist, and shortly before the trial, carried stories that he had already admitted murders of several other people. The court then quoted the ancient rule (earlier quoted here), but made it clear that a juror exposed to prejudicial publicity is not proven impartial by his mere declaration that he will not allow such evidence to influence him. The court stated:

“Here the ‘pattern of deep and bitter prejudice’ shown to be present throughout the community, cf. Stroble v. California, 343 US 181 , 96 L. Ed. 872 , 72 S. Ct. 599 , was clearly reflected in the sum total of the voir dire examination of a majority of the jurors finally placed in the jury box. Eight out of the 12 thought petitioner was guilty. With such an opinion permeating their minds, it would be difficult to say that each could exclude this preconception of guilt from his deliberations. The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man.”

I am not nearly so much concerned about publicity that arises after the trial has commenced. For one thing, the news releases are, in the main, based on what the witnesses actually said, i.e., hearsay or incompetent evidence is not a part of such a news story. Then, too, after all, the objective is to protect the jury from becoming aware of outside reports, and if necessary, a jury can be sequestered. But l am disturbed about newspaper stories and television releases that occur at the time, or soon after, the crime occurs, and for days and weeks thereafter, I suppose mainly because there are so few answers (if indeed there are adequate answers) to the problem. Let me make it very clear that 1 do not favor any “gag” rule and prior restraint is invalid — but though it were otherwise — 1 still would not favor it since l strongly support a free and unfettered press. Accordingly, I really only know of three things that, at least, constitute a partial answer. First, where publicity, including matters which could well be prejudicial to a fair trial for a defendant, runs rampant throughout the community, a change of venue would have to be granted. This is only partially satisfactory for the reason that our constitution provides that if a change of venue is granted, it shall be to some other county in the same judicial district. Article 2 § 10 Arkansas Constitution. It is hardly necessary to say that, while feelings may not be as strong in an adjoining county, still, the inhabitants of that county are fairly well acquainted with the news stories and the television and radio reports. Certainly, there would be much less prejudice several counties away from the county in which the crime was committed — but that is not possible under our constitutional provision. 2 Of course, Sebastian County is a circuit within itself, and in such event, this case would be transferred to an adjoining county. See Cockrell v. Dobbs, Judge, 238 Ark. 348 , 381 S.W. 2d 756 .

Time is the greatest healer for grief or unpleasant occurrences, and it may be that cases of the nature here under discussion should not be set for trial until a sufficient “cooling off period” has elapsed. What amount of time this would involve, l cannot say; of course, it might well be necessary that a defendant move for the continuances to prevent a possible later claim that he had not received a speedy trial. Since the delay would be for his benefit, I cannot see why a defendant would object to taking such a step.

A third possibility is voluntary action on the part of the news media, and after all, a great deal of restraint would not be required. As earlier stated, certainly the media has the right, even the duty, to report crime, and is privileged to give the necessary details of the particular offense; if the suspected perpetrator has not been apprehended, any information necessary to aid in his apprehension or to warn the public of any dangers he might present, would also be very much in order.

Perhaps I can briefly summarize information that may well prove prejudicial. The things that I will mention are included in the American Bar Association Standards relating to fair trial and free press, although those standards are much more comprehensive, and I understand under revision at the present time. I do not necessarily agree with all these standards, and I shall only mention those that I consider go to the “heart of the matter” and only insofar as they relate to the selection of an unbiased and unprejudiced jury. I agree that the following categories of information are prejudicial to a fair trial 3 and they have been so declared in various court opinions.

“The prior criminal record (including arrests, indictments, or other charges of a crime), 4 or the character or reputation of the defendant;

The existence or contents of any confession, 5 admission, or statement given by the defendant, or the refusal or failure of the defendant to make any statement;

The performance of any examinations or tests or the defendant’s refusal or failure to submit to an examination or test;

The possibility of a plea of guilty to the offense charged or a lesser offense;

The defendant’s guilt or innocence or other matters relating to the merits of the case or the evidence in the case . . . . ”

Actually, if only the first two mentioned were omitted from news stories and broadcasts, I feel that a change of venue in many a case would be avoided.

I understand (I use this word because I was not a participant) that a few years ago, a committee composed of attorneys and members of the news media had a number of meetings relative to the American Bar Standards, but never did reach any satisfactory conclusions. Sometime thereafter, a committee representing the Arkansas Bar Association filed a petition with this court, seeking the adoption of five rules to existing rules of criminal procedure, which would have established guidelines covering the release and publication of information in connection with criminal proceedings. The Arkansas Press Association, a leading journalism society (Sigma Delta Chi) and a number of individual newspaper reporters were opposed to the proposed rules. This court unanimously entered an opinion on May 1, 1972, denying the petition. See 252 Ark. 418 , 479 S.W. 2d 533 . We expressed doubt about the constitutionality of some of the proposed provisions and further stated that we were not convinced that we had a problerq with court news dissemination that required the adoption of rather rigid rules covering all phases of the subject. 6 I am still of the same view, but certainly wish that something could be done relative to the question of pre-trial publicity that would prevent, or at least minimize, the probability of disqualification of prospective jurors. I really think that a committee composed of judges, lawyers, law enforcement officers, and officials of the media, newspapers, television stations, and radio stations, could review the matter under discussion and come out with a helpful solution (not necessarily the recommendations of the ABA) — perhaps not perfect — but certainly a progressive step in meeting this problem.

I may be well wasting my time in writing this concurrence, but this problem I can foresee as happening again and again. Having to retry a case takes time — it takes money — and a final conclusion is wearisomely protracted. This is neither fair to the public, nor to a defendant, and any efforts that can be made to remedy the situation are worth a try.

I am persuaded that all mentioned, jurists, lawyers, law enforcement officers, members of the news media, and, of course, the citizens of our state, are interested in achieving justice as rapidly and efficiently as possible, and 1 would hope that suggestions could be offered that would be workable and satisfactory to all concerned.

This does not include the 13 or 14 examined as alternate jurors, since the alternates did not serve.

One juror stated that she believed “he did do it,” and that she stiil had that opinion. When asked if the opinion would affect her verdict, she answered, “I couldn’t say. J would hope that I would be able to listen to what was brought in with an open mind and take it from there.” Still, however, she was unwilling to say “at this particular moment” that her prior feelings would have no effect. The court stated, “I believe when I first questioned Mrs._you said you would hope that you would be able to set aside your opinion and just base your verdict on the evidence of the law. Does that still hold true, that statement?” She answered, “Yes, sir. I hope that I could be that type of person and be able to do that.” Thereupon, the court refused to grant the motion to excuse her for cause.

Of course, this solulion would likewise pose problems since il would be necessary that witnesses, probably most of whom live in the county where the crime occurred, and officials would have to travel to the new county where the trial was to be held, necessitating great expense and inconvenience.

This summary of categories is taken from (although I have only used a small part) “Courts and the News Media” published by the National College of The State Judiciary, University of Nevada.

For instance, in the present case, I think undoubtedly one of the most prejudicial items conveyed to the public was the fact that this defendant was accused of a heinous double murder in South Carolina, and as herein pointed out, a great majority of the jury panel was familiar with this fact.

No confession was involved in the instant case.

The proposed rules mainly dealt with restrictions on court officials, or events occurring in the courtroom.