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Sunday, November 18, 2001
Copyright © Las Vegas Review-Journal COLUMN: Thomas Mitchell The canard of 'tainted' juries
It is unadulterated sophistry. A leap of faith without a scintilla of empirical data. Junk science with a psychobabble catalyst. More than that, it is a repudiation of a fundamental underlying principle of American jurisprudence and democracy. But lawyers and judges continue to pay homage to the big canard: Pretrial publicity will taint a pool of potential jurors, rendering them incapable of reaching a just verdict. This past week, the fallacy was in full froth in District Judge Nancy Saitta's courtroom, with the only doubting Thomas in a rear pew. Attorney Tony Sgro was arguing the tiny Las Vegas Tribune, a free newspaper that prints about 10,000 copies a week, should be gagged, prohibited from publishing stories about his client, Rick Rizzolo, owner of the topless club Crazy Horse Too. Rizzolo has filed a libel suit against the Tribune and its columnist Steve Miller -- yes, that Steve Miller, the former council member who unsuccessfully sued former Mayor Jan Jones for libel. Sgro argued Miller and the Tribune should be ordered to stop publishing irresponsible, false and misleading articles about his client. In his motion for the gag, Sgro wrote, "These blatant attacks on Plaintiffs, if allowed to continue, will have the effect of irreparably prejudicing Las Vegans against Plaintiffs, thereby tainting the pool from which jurors in this case will be chosen and impairing Plaintiffs' right to an impartial tribunal." Taint? The whole jury pool is irreparably poisoned because some newspaper columnist pisses in it? In that courtroom, there was not a peep of protest about the validity of the basic contention, only talk of remedies to the presumed malady. Sgro wanted to eject the columnist from the pool by using prior restraint. The U.S. Supreme Court refused to wield this Constitution-bashing hammer to stop publication of the classified Pentagon Papers, but Judge Saitta was expected to do so for the sake of the reputation of a topless club owner? On behalf of the defendants, attorney Dowon Kang argued the pool was too big and the newspaper circulation too small. He suggested less restrictive avenues, such as change of venue or filtering the pool during voir dire. Defense attorney Chris Rasmussen noted the unfairness of suing someone for libel and then trying to silence that person by arguing he is a participant in the case. No one argued the original premise is unsubstantiated drivel. Sgro's gag motion even quoted a judge as saying, "The naive assumption that prejudicial effects can be overcome by instructions to the jury, all practicing lawyers know to be unmitigated fiction." Does this knowledge come from research or divine inspiration? Though Judge Saitta denied the gag, she said she was concerned about possible jury tainting. Where is the proof that jurors are just too darned stupid to follow instructions despite their exposure to news and opinions? Jurors do take an oath to render a verdict according only to the evidence given. A couple of the cases cited by Sgro were written by Supreme Court Justice Tom Clark, who included contradictory language in one of his 1961 rulings. First he wrote: "In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. ... It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." But then Clark later wrote: "No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one's fellows is often its father. Where so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight." Thank you, Justice Freud. But such mistrust is nothing new. Even Mark Twain observed: "In this age, when a gentleman of high social standing, intelligence, and probity swears that testimony given under solemn oath will outweigh, with him, street talk and newspaper reports based upon mere hearsay, he is worth a hundred jurymen who will swear to their own ignorance and stupidity, and justice would be far safer in his hands than in theirs. Why could not the jury law be so altered as to give men of brains and honesty an equal chance with fools and miscreants?" Thomas Mitchell, editor of the Review-Journal, writes a column on the newspaper's functions and role in the community. He may be reached at 383-0261 or via e-mail at Thomas_Mitchell@lvrj.com.
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