Lansdown v. Superior Court

• Decision Date: 17 August 1970
• Citation: 10 Cal.App.3d 604,89 Cal.Rptr. 154
• Court: California Court of Appeals Court of Appeals
• Parties: Betty Louise LANSDOWN, Petitioner, v. The SUPERIOR COURT OF KERN COUNTY, Respondent, The PEOPLE of the State of California, Real Party in Interest. Civ. 1349.

Page 154

89 Cal.Rptr. 154

10 Cal.App.3d 604

Betty Louise LANSDOWN, Petitioner, v. The SUPERIOR COURT OF KERN COUNTY, Respondent The PEOPLE of the State of California, Real Party in Interest.

Civ. 1349.

Court of Appeal, Fifth District, California.

Aug. 17, 1970.

Rehearing Denied Sept. 14, 1970.

Hearing Denied Oct. 15, 1970.

James G. Bowles, Bakersfield, for petitioner.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen. and Arnold O. Overoye, Deputy Atty. Gen., Sacramento, for real party in interest.

STONE, Presiding Justice.

This matter is before us on a writ of mandate to compel change of venue from the Superior Court of Kern County. Petitioner, Betty Louise Lansdown, also known as Betty Louise Fouquet, and also known as Betty Louise Baker, is charged with violation of Penal Code section 273a, subdivision (1), willful child abuse, and of Penal Code section 271, desertion of a child under 14 years of age. The ground for her motion is that prejudicial publicity has made it impossible for her to receive a fair and impartial trial by jury in Kern County.

In Maine v. Superior Court, 68 Cal.2d 375, 66 Cal.Rptr. 724, 438 P.2d 372 the court reviewed the propriety of mandamus as a proper procedure, before trial, for seeking a review of a pretrial order denying a change of venue upon the ground that prejudicial pretrial publicity has adversely affected a defendant's right to a fair and impartial trial. The court held mandamus is a proper remedy in such cases. Further, that in keeping with Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 16 L.Ed.2d 600, 620 in such a proceeding the appellate tribunal is under a duty to make an independent evaluation of the circumstances, that is, 'appellate courts must, when their aid is properly invoked, satisfy themselves De novo on all the exhibits and affidavits that every defendant obtains a fair and impartial trial.' (68 Cal.2d P. 382, 66 Cal.Rptr. 728, 438 P.2d 376.)

Petitioner and her common-law husband, Ronald Fouquet, are accused of abandoning their four-year-old daughter, Jody, at the side of Highway 99, south of Bakersfield. The child was found clinging to the right-of-way chain-link fence in the early morning hours of October 25, 1969. Apparently her parents had conditioned her to say that her name was Jody Smith, and that she lived in Bakersfield. The plight of the child brought much publicity, since no one claimed her and the authorities were unable to trace her family or locate anyone who knew her. A former babysitter for the Fouquets in the Los Angeles area read about the child and advised officials she believed Jody to be Jody Fouquet, and revealed the location of the Fouquet home near Los Angeles. Through this lead, the officers were able to establish that Jody Smith was indeed Jody Fouquet, that her mother was Betty Louise Lansdown and her father was Ronald Fouquet, and that the two had been living together in a common-law marriage relationship.

Understandably, Kern County and Los Angeles newspapers and radio and television stations gave much publicity to the case. The abandonment of the child during the cold, early morning hours, on a busy highway in a desolate area south of the City of Bakersfield was covered in detail. This alone would not justify a change of venue, even though people in the community were naturally sympathetic toward the child who suffered the harrowing experience, and were indignant at the apparent callousness of the mother and father. However, a different kind of publicity appeared when an investigation developed that Jody's older brother, Jeffrey, was missing and indications were that he might have been murdered.

Jeffrey's whereabouts remained a mystery for a time, and some editors and commentators called upon petitioner to tell what she knew about the child's disappearance. Also, vilifying letters were written to her. Perhaps the most unusual development of this aspect of the case was the open attack upon petitioner's attorney. The following item was broadcast by Bakersfield radio station KAFY once every hour from 6 p.m. Monday, November 10, through 5 p.m. November 11:

'An open letter to Jim Bowles, attorney for Betty Lansdown Fouquet, the mother of little Jeffrey Lansdown. Mr. Bowles, KAFY understands the time honored attorney-client relationship and the fact that you have advised Mrs. Fouquet not to answer any questions concerning the whereabouts of little eight-year-old Jeffrey. Mr. Bowles, a little boy's life might be at stake. You were quoted over the weekend as saying you did not think Mrs. Fouquet knew the whereabouts of Jeffrey. Mr. Bowles, let a mother answer for herself. If, indeed, her answers would incriminate her, then ask her yourself during one of your confidential-client discussions and you, Mr. Bowles, institute some kind of action to find Jeffrey. Whatever happens, Mr. Bowles, no one is more responsible for the fact that Jeffrey cannot be found than you are. Act now, Mr. Bowles, allow Mrs. Fouquet to answer the question--'Where is Jeffrey?"

The body of Jeffrey was eventually discovered, and Fouquet was charged with murder. Numerous television and radio broadcasts originating in Los Angeles, where Fouquet was tried for the boy's murder, and in Bakersfield, where petitioner was being held on child abandonment charges, related the gruesome details of the boy's murder by torture. Most of them related that petitioner was present, and not only failed to notify authorities but helped dispose of Jeffrey's body.

The materiality of this publicity insofar as change of venue is concerned is that many of these news stories mentioned the Kern County case in context with the murder case. The news reports, radio transcripts and TV films are too numerous to incorporate in this opinion but, as an example, the following was broadcast by KBAK-TV on April 6, 1970:

'Betty Lansdown Fouquet has testified in Los Angeles that her husband jumped on her five-year-old son's abdomen for thirty sconds, then stuffed little Jeffrey's body into a suitcase. The 26-year-old Mrs....