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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Fair Trials in the Age of Facebook

When social media are everywhere, escaping prejudicial publicity becomes almost impossible

When there has been intense media coverage of high-profile homicides or other incidents, criminal defendants in Minnesota typically seek to change the venue of a trial from the county where the incident occurred. The goal is to lessen the possibility of the jury including persons who have formed opinions about an incident based on media coverage.

But as the definition of “media” has broadened to include social media, there is increasingly no venue in the state where a criminal defendant can find jurors who have not been exposed to information and opinions concerning high-profile incidents.

A case in point is the trial in 2017 of Jeronimo Yanez, the St. Anthony, Minnesota police officer who was tried for the death of Philando Castile. Yanez shot Castile during a traffic stop just north of the Minnesota State Fairgrounds in July 2016. Seconds later, Castile’s passenger, Diamond Reynolds, began broadcasting the incident on Facebook Live.

In an instant, Reynolds became not only a trial witness and creator of trial evidence, but also a member of the “media,” as her video was shared on Facebook far beyond Ramsey County.1

A key reason the video went viral is that Castile was the second African-American man fatally shot by a police officer in as many days. The previous morning in Baton Rouge, Louisiana, a police officer fatally shot Alton Sterling in an interaction that also was caught on video. Images from that incident, like Castile’s, spread across social media.2 And so did opinions about both shootings.

The public discourse about officer-involved shootings of African-American men was ongoing when Yanez was charged with second-degree manslaughter and dangerous discharge of a firearm. Given the widespread publicity, Yanez asked for the venue of his trial to be transferred from Ramsey County.

Judge William H. Leary denied the request, explaining “the death of Mr. Castile has been the subject of ongoing public comment locally, statewide and nationally.” The judge also cited Yanez’s concession “that no area of the state has been ‘shielded’ from such publicity.”3

Yanez’s trial remained in Ramsey County, and he was acquitted. Still, the case helps demonstrate that in the Facebook era it can be difficult if not impossible to find a venue in Minnesota that has been shielded from pretrial publicity. And although the Minnesota Rules of Criminal Procedure are broadly worded to protect a criminal defendant’s right to a fair trial, the rules are often of limited help as a practical matter.

Broad discretion, narrow application

The plain language of the Minnesota Rules of Criminal Procedure gives district courts broad discretion to grant transfer-of-venue motions, even on a court’s own motion. According to Rule 25.02, a trial should be moved “whenever potentially prejudicial material creates a reasonable likelihood that a fair trial cannot be had.”

The rule does not limit “material” to traditional news coverage by professional journalists. Theoretically at least, a criminal trial’s venue may be transferred based solely on the existence of an overwhelming amount of social media.

Although Rule 25.02 leaves room for district courts to transfer venue for that reason, the rule presupposes that a criminal defendant will build a district court record containing evidence of the pretrial publicity and its prejudicial effect. Specifically, Rule 25.02 authorizes use of testimony, affidavits, written statements, opinion surveys, or “other material having probative value” to support a change-of-venue motion. However, the rule goes on to clarify that testimony, affidavits, or statements “must not be required as a condition for granting the motion.”

In practice, though, a criminal defendant who seeks a change of venue is wise to build a substantial evidentiary record to prove jurors—likely specific jurors—have been prejudiced by the media and as a result have formed pretrial opinions about a defendant’s guilt. This is because although a defendant need not prove “actual prejudice” at the district court level, “a defendant must prove ‘actual prejudice’ on appeal of a denial of the motion to change venue.”4 

State v. Thompson

There was a time when the sheer volume of media coverage might have provided grounds for a district court to transfer the venue of a high-profile trial. The 1963 case of State v. Thompson helped set that standard. The case resulted from the murder of Carol Thompson in St. Paul’s Highland Park neighborhood. When her husband, prominent St. Paul attorney T. Eugene Thompson, became a suspect, the media coverage became intense.

“Probably no case in the memory of anyone in this locality has aroused so much interest and so much discussion as this one,” the Minnesota Supreme Court wrote in a per curiam opinion. “Over a period of several months hardly a day has elapsed when something has not been said or written in a news medium of one kind or another.”5

The pretrial coverage included not only the basic facts of Thompson’s arrest but also quotations from persons involved in the case who provided their opinions. For example, the St. Paul police chief was quoted as characterizing the death as a “murder for profit.”6

Because of such pretrial publicity, Thompson sought and received a change of venue, which the Minnesota Supreme Court affirmed. Yet, reminiscent of a time when the types of “media” could be counted on one hand, the trial was transferred only across the river, from Ramsey County to Hennepin County.

In doing so, the Supreme Court paid little attention to any record Thompson might have made in the trial court. Rather, the court broadly held that “when it appears that the public has been subjected to so much publicity about a case that it seems unlikely that a fair trial can be had in the locality in which the trial normally would be held, the court can and should see to it that the trial is transferred to another locality in which it is more probable that a fair trial can be had.”7

The court did not address the issue of whether Thompson was required to show “actual prejudice.” However, the committee that drafted Rule 25.02 of the Minnesota Rules of Criminal Procedure did address the issue, and today the rules specify: “Actual prejudice need not be shown.”

The American Bar Association’s Fair Trial and Free Press Standards, written in 1968 and revised in 1979 and 1991, took a similar position. In commentary to the ABA’s guideline for transferring venue, the ABA directed that a showing of “actual prejudice” should not be required.8

But from the late 1970s through the 1990s, Minnesota courts were tightening the standard for transferring a criminal trial’s venue even as the reach of media broadened past the limits of local broadcast signals or newspaper circulation trucks.

Practically speaking, prejudice required

In 1979, the Minnesota Supreme Court held publicity must be “massive” before prejudice could be presumed and a criminal trial moved for that reason.9 Two years later, the Court held a defendant must show pretrial publicity “affected the minds of the specific jurors involved in this case” before venue could be transferred.10

In 1984, in State v. Kinsky, the Minnesota Supreme Court held that a district court in Winona County did not err when it denied a transfer of venue without a record of news articles, opinion surveys, or other materials.11 Further, as the Court explained: “With our present methods of communication, it is unlikely that any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.”12

In the 1990s, the methods of communication evolved to the point that live broadcasts could take place anywhere, from Persian Gulf battlefields to Minnesota cornfields. Television became the dominant form of media, and cable news was available around the clock. Even in Minnesota’s smaller media markets, reporters could take advantage of satellite technology to deliver live reports from any part of the state.

Among those parts was Moose Lake, Minnesota, situated on Interstate 35 between the Twin Cities and Twin Ports media markets, where Katie Poirier, 19, was abducted from a convenience store in May 1999. The abduction had all the makings of a news story that would play in multiple media markets. Besides the sensational facts themselves, there was grainy surveillance-camera video of a man in a New York Yankees t-shirt leading Poirier away.13

The video helped the state become transfixed by the abduction. “An extensive search and investigation were conducted, accompanied by extensive local and statewide news coverage.”14 Eventually, Donald Blom was arrested and gave a statement admitting to abducting and killing Poirier in Carlton County.

When Blom’s trial began in 2000, he sought and received a transfer of venue 65 miles away to the St. Louis County courthouse in Virginia. During the 20-day trial, Blom moved for a transfer of venue nine more times. “In each reevaluation, the court reached the same conclusion that nowhere in the state would Blom face a jury unexposed to publicity about the case.”15

Blom was convicted, and the Minnesota Supreme Court affirmed both the conviction and the district court’s venue rulings, explaining “no evidence had been provided to indicate that any part of Minnesota had been shielded from such publicity.”16

As the Court made clear in State v. Blom, in all likelihood there was no place in Minnesota where Poirier’s abduction and Blom’s alleged role in it had not been discussed and where potential jurors might not have come to opinions.

Enter Facebook

The Minnesota Supreme Court issued State v. Blom in 2004, the same year Facebook was launched. Twitter came two years later. Within the next decade, anyone with an iPhone could become a live broadcaster in an instant.

By the time the Diamond Reynolds video went viral, media technology had evolved rapidly but the law had not. Kinsky and Blom were still good law and provided grounds for Ramsey County Judge Leary to deny Officer Yanez’s motion.

As the judge explained: “Certainly, it is more evident than ever that, given the saturation of electronic communication in the years since Blom and Kinsky were decided, ‘our present methods of communication’ make it unlikely that any community has been impervious to forming ‘impressions or opinions’ regarding the case.”17

Given Yanez’s acquittal, there was neither need nor opportunity for a Minnesota appellate court to consider whether the rules governing transfer-of-venue motions should, or even could, evolve along with media technology.

What does seem clear is that as the present methods of communication inevitably become obsolete next year, next month, or next week, it will become increasingly difficult to transfer a criminal trial’s venue based solely on the volume of pretrial media.

 

STEVEN P. AGGERGAARD is an assistant professor of legal writing at Mitchell Hamline School of Law in St. Paul. Before becoming a lawyer, he was a newspaper journalist for 14 years, working in both Duluth and St. Paul.

 

Notes

1 “What the police officer who shot Philando Castile said about the shooting,” Washington Post (6/21/2017). https://www.washingtonpost.com/news/post-nation/wp/2017/06/21/what-the-police-officer-who-shot-philando-castile-said-about-the-shooting/ 

2 “Two days, two deaths: The police shootings of Alton Sterling and Philando Castile,” NPR (7/7/2016). https://www.npr.org/sections/codeswitch/2016/07/07/485078670/two-days-two-deaths-the-police-shootings-of-alton-sterling-and-philando-castile 

3 State v Yanez, No. 62-CR-16-8110, 2017 WL 2998859, at *2 (Minn. Dist. Ct. 4/6/2017).

4 State v. Parker, 901 N.W.2d 917, 924 (Minn. 2017).

5 State v. Thompson, 123 N.W.2d 378, 381 (Minn. 1963).

6 Id.

7 Id. at 381.

8 ABA Criminal Justice Standards Committee, ABA Standards for Criminal Justice Fair Trial and Free Press, Third Edition (1991).  https://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_standards_fairtrial.authcheckdam.pdf 

9 State v. Beier, 263 N.W.2d 622, 626 (Minn. 1978).

10 State v. Salas, 306 N.W.2d 832, 836 (Minn. 1981).

11 State v. Kinsky, 348 N.W.2d 319, 323 (Minn. 1984).

12 Id. (internal quotation omitted).

13 State v. Blom, 682 N.W.2d 578, 588 (Minn. 2004).

14 Id.

15 Id. at 608.

16 Id. at 595.

17 Yanez, 2017 WL 2998859, at *2.

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