The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge
This matter is before the undersigned pursuant to 28 U.S.C. § 636(b), the Rules of this Court, and by Order [Doc. 112] of the Honorable Thomas A. Varlan, United States District Judge, for disposition of defendant Eric Dewayne Boyd's Motion for Change of Venue, or in the alternative, Motion to Bring in an Outside Jury Due to Prejudicial Publicity [Doc. 110], filed November 13, 2007. The government has filed a Memorandum in Opposition [Doc. 114]. The parties came before the Court on November 29, 2007 for a hearing on the above motion. Assistant United States Attorney Tracy Stone ("AUSA Stone") appeared on behalf of the government. Attorney Philip Lomonaco ("Attorney Lomonaco") appeared on behalf of the defendant Eric Boyd ("Boyd"), who was also present.
Defendant Boyd seeks the transfer of the trial in this matter to the Western District of Tennessee, Western Division, pursuant to Rule 18 and Rule 21(a) and (b) of the Federal Rules of Criminal Procedure, or in the alternative, to bring in a jury from another District in Tennessee. Defendant contends that if his trial is held within this district, it will be severely prejudicial to him and deny him his constitutionally protected right to a fair trial by an impartial jury. The government, in response, argues that defendant's motion should be denied because, despite pretrial publicity, defendant has not demonstrated a presumption of prejudice.
During the November 29, 2007 hearing, the defendant introduced: 118 television or newspaper articles (Ex. 1); a DVD containing two video news reports aired by a Knoxville television station on January 16, 2007 (Ex. 6); a DVD containing 24 videos found on the YouTube internet website (Ex. 4); and documents reflecting the results of "Google" searches for the search term "Channon Christian" (showing 76,500 results) and the search term "Channon Christian" and "mutilation" (showing 913 results) (Exs. 7 and 8). These exhibits were introduced through the testimony of attorneys Katherine Harp ("Harp") and John Stanford Young, III ("Young"), both of whom have worked on the representation of the defendant in this case.
Harp testified that the documentation of newspaper and television reports (Ex.1) was downloaded from the internet, and that most of them were from local news outlets. She also testified that these local news internet sites contained comments, or posts, from readers, or viewers, stating opinions and reactions to the news.
Young testified that he found more than 24 videos on YouTube concerning the case of Channon Christian ("Christian") and Christopher Newsom ("Newsom"), and therefore, the DVD offered into evidence (Ex. 4) does not contain all of those videos. However, Young testified that the 24 videos on the DVD, (Ex. 4), are still on YouTube for viewing. On cross-examination, Young testified that he is not aware of any way to determine how many people in the Eastern District of Tennessee actually have viewed any particular video on YouTube. He also testified that anyone, located anywhere on Earth, with access to a computer and the internet, could create a video about Christian and Newsom, or the prosecutions arising from their deaths, and put it on YouTube.
The government introduced a map of the Northern Division of the Eastern District of Tennessee, based in Knoxville (Ex. 9). This map shows that potential jurors for the trial of this case will be drawn from an area of fourteen counties: Scott, Campbell, Claiborne, Union, Grainger, Morgan, Anderson, Knox, Jefferson, Roane, Loudon, Blount, Sevier and Monroe.
In support of his motion, the defendant argued two main points. First, the defendant contends that there has been so much local interest in the case, that it is reasonable to assume that potential jurors are going to the internet for more information. Once on the internet, using search engines like Google, potential jurors are bound to see all nature of prejudicial videos and other matters. The defendant pointed to several videos on YouTube, contained in Ex. 4, about two "rallies" held earlier in 2007 in downtown Knoxville, at which a group of "white supremacists" claiming that the murders of Christian and Newsom were evidence of black on white hate crimes, engaged in verbal confrontation with a group of counter-protestors. The defendant characterized these rallies as creating a pervasive, circus-like and prejudicial atmosphere in this case.
The defendant's second argument is that potential jurors, when they think of this case, will naturally think of the murders of Newsom and Christian, and then associate those murders with Boyd, even though he is not charged with murder. Therefore, Boyd asserts that the emotion generated by the state court proceedings, currently not scheduled for trial until after the trial of his case, will cause prejudice to him. The defendant asks the Court to conduct the trial of this case in the Western District of Tennessee (Memphis or Jackson), or in the alternative, bring jurors from another part of the state to Knoxville for the trial.
The government argues that the Court should not change the venue of this case, because there has been no showing of presumptive prejudice based on pretrial publicity. Moreover, the government urges the Court to conduct a jury voir dire and make an attempt to empanel a jury before consideration is given to moving the venue.
The Sixth Amendment guarantees a defendant the right to a trial by an impartial jury. U.S. Const., amend. VI. This fair-trial right is effectuated by impaneling a jury of impartial, "indifferent" jurors who render a verdict based on evidence adduced at trial. Irvin v. Dowd, 366 U.S. 717, 722 (1961). Thus, if pretrial publicity jeopardizes a defendant's right to a fair trial by an impartial jury, the trial court should grant the defendant a change in venue. Id. at 722-24.
Prejudice resulting from pretrial publicity can be presumptive or actual. Nevers v. Killinger, 169 F.3d 352, 362 (6th Cir. 1999), abrogated on other grounds by Harris v. Stovall, 212 F.3d 940, 942-43 (6th Cir. 2000). Presumptive prejudice from pretrial publicity occurs where an inflammatory, circus-like atmosphere pervades both the courthouse and the surrounding community. Ritchie v. Rogers, 313 F.3d 948, 956 (6th Cir. 2002). Prejudice from pretrial publicity is rarely presumed. DeLisle v. Rivers, 161 F.3d 370, 382 (6th Cir. 1998). However, a court will presume prejudice if defendant can show that his case falls within a narrow category of cases where the influence of the news media is such as to have created an inherently prejudicial ...