People v. Boudin

• Decision Date: 15 December 1982
• Citation: 90 A.D.2d 253,457 N.Y.S.2d 302
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Kathy BOUDIN et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 302

457 N.Y.S.2d 302

90 A.D.2d 253

The PEOPLE of the State of New York, Plaintiff, v. Kathy BOUDIN et al., Defendants.

Supreme Court, Appellate Division,

Second Department.

Dec. 15, 1982.

Frankfurt, Garbus, Klein & Selz, New York City (Martin Garbus, New York City, of counsel), and Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York City (Leonard I. Weinglass and Leonard B. Boudin, New York City, of counsel), for defendant Boudin.

Evelyn Williams, New York City, for defendant Brown.

Kenneth Gribetz, Dist. Atty., New City (John S. Edwards, New York City, of counsel), for plaintiff.

Richard Emery and Steven R. Shapiro, New York City, for New York Civ. Liberties Union, amicus curiae.

Before MOLLEN, P.J., and DAMIANI, TITONE, LAZER and MANGANO, JJ.

PER CURIAM.

On October 20, 1981, in the course of a robbery at the Nanuet Mall in Rockland County, a Brink's security guard was killed. Shortly thereafter, while attempting to apprehend the suspected perpetrators, two Rockland County police officers were also shot and killed. Movant Kathy Boudin and defendants Clark, Brown, Weems, Gilbert and Burns were subsequently apprehended and now stand jointly charged with various crimes arising out of the incident.

Following their indictment, Ms. Boudin and three of her codefendants moved pursuant to CPL 230.20 for a change of venue. They alleged, inter alia, that the prejudicial character and intensity of local publicity, coupled with the charged emotional atmosphere in Rockland County created as a result of the nature of the crime, made it impossible to select a fair and impartial jury. Upon review of the papers then before us, we found that the evidence submitted was not such as to suggest that the selection of a fair and impartial jury was necessarily precluded. Accordingly, we denied the motions as premature, holding that "a proper determination of the claim must await the results of voir dire" (People v. Boudin, 87 A.D.2d 133, 135, 451 N.Y.S.2d 153, supra ). We specified that "[d]efendants may renew their motions to change venue following voir dire if it should then reasonably appear that it is impossible to select an impartial and fairly constituted jury" ( supra, p. 136, 451 N.Y.S.2d 153).

By order to show cause dated November 12, 1982, defendant Boudin has renewed her application for a change of venue. In essence, she argues that evidence gathered subsequent to our determination establishes that she is in fact entitled to a change of venue, and that there is no longer any need to await voir dire in order to demonstrate that fact.

Following oral argument, this court, sua sponte, issued an order, dated November 30, 1982, amending Ms. Boudin's order to show cause. The amendment required, inter alia, that the papers and exhibits submitted in support of and in opposition to the application be served upon each of the codefendants, and directed that each show cause why the entire action should not be removed from Rockland County to a superior court of another county.

Defendant Brown has now joined in Ms. Boudin's application for a change of venue. Defendants Clark, Weems, Gilbert and Burns have failed to submit any response, although affidavits have been filed with this court attesting to the fact that each of them has been duly served in accordance with our order. We deem such failure to respond to be an implicit admission that they can proffer no reason why venue should not be changed and that they do not oppose the application.

In seeking a pre-voir dire change of venue, defendant Boudin contends, as indeed she must, that her case is extraordinary. Evidence of widespread publicity, even when supported by the results of surveys of the attitudes of potential jurors, is generally regarded as nothing more than some proof that a fair trial may be impossible in the locality in which the crime occurred. As the Supreme Court has observed, "[i]f the mere opportunity for prejudice * * * is to raise a presumption that [it] exist[s], it will be hard to maintain jury trial under the conditions of the present day" (Holt v. United States, 218 U.S. 245, 251, 31 S.Ct. 2, 5, 54 L.Ed. 1021 [HOLMES, J.] ). Indeed, it seems well settled that pretrial publicity, even if pervasive and concentrated, does not necessarily lead to an unfair trial (see, e.g., Nebraska Press Assn. v. Stuart, 427 U.S. 539, 565, 96 S.Ct. 2791, 2805, 49 L.Ed.2d 683; People v. DiPiazza, 24 N.Y.2d 342, 347, 300 N.Y.S.2d 545, 248 N.E.2d 412; People v. Harris, 84 A.D.2d 63, 100, 445 N.Y.S.2d 520, affd. 57 N.Y.2d 335, --- N.Y.S.2d ----, --- N.E.2d ---- [1982] ). And, as to surveys of community attitudes, courts often do well to rely "less heavily on a poll taken in private by private pollsters and paid for by one side than on a recorded, comprehensive voir dire examination conducted by the judge in the presence of all parties and their counsel pursuant to procedures, practices and principles developed by the common law since the reign of Henry II" (United States v. Haldeman, 559 F.2d 31, 64, n. 43 (D.C.Cir.1976), cert. den. sub nom. Ehrlichman v. United States, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250). Thus, our earlier determination to deny Ms. Boudin's application for a change of venue, pending the results ofvoir dire, was consistent with the great majority of decisions dealing with such pre-voir dire motions (see, e.g., People v. Barnes, 86 A.D.2d 781, 449 N.Y.S.2d 939; People v. Shedrick, 83 A.D.2d 988, 443 N.Y.S.2d 716; People v. Bedell, 73 A.D.2d 1045, 425 N.Y.S.2d 532; People v. Griffin, 70 A.D.2d 1059, 418 N.Y.S.2d 910; People v. Hurley, 67 A.D.2d 823, 412 N.Y.S.2d 1022; People v. Calogero, 64 A.D.2d 1010, 409 N.Y.S.2d 675; People v. Poret, 64 A.D.2d 1010, 409 N.Y.S.2d 289; People v. Morin, 56 A.D.2d 715, 392 N.Y.S.2d 731; People v. Brown, 54 A.D.2d 598, 387 N.Y.S.2d 318; People v. Coleates, 53 A.D.2d 1018, 386 N.Y.S.2d 525; People v. Gray, 51 A.D.2d 889, 380 N.Y.S.2d 403; People v. Hatch, 46 A.D.2d 721; People v. Little, 45 A.D.2d 982; People v. Sekou, 45 A.D.2d 982, app. dsmd. 35 N.Y.2d 844, 362 N.Y.S.2d 866, 321 N.E.2d 786; see, also, United States ex rel. Darcy v. Handy, 351 U.S. 454, 462, 76 S.Ct. 965, 970, 100 L.Ed. 1331; United States v. Haldeman, supra ).

That is not to say, however, that a change of venue may never be granted before voir dire. It is true that voir dire is generally the most effective means for determining whether a fair and impartial jury can be empanelled. Nevertheless, it may not always successfully root out prejudice and therefore does not always guarantee the right to a fair trial (see Groppi v. Wisconsin, 400 U.S. 505, 510, 91 S.Ct. 490, 493, 27 L.Ed.2d 571). No matter how solemnly given, a juror's statement that he has not been influenced by prejudicial publicity and is capable of affording the defendant a fair trial is not necessarily dispositive (see, e.g., Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1172, 3 L.Ed.2d 1250; cf. Irvin v. Dowd, 366 U.S. 717, 722-723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751).

Thus, there are a number of cases in which courts, either prior to voir dire or without reference thereto, have held that exceptional circumstances warranted a change of venue (see, e.g., Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 [repeated television broadcasts of lengthy interview of defendant in which he admitted the commission of the charged murder]; People v. Pratt, 27 A.D.2d 199, 278 N.Y.S.2d 89 [GABRIELLI, J.] [testimony adduced and findings made at pretrial People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 hearing widely publicized before selection of jury]; People v. Marturano, 24 A.D.2d 733, 263 N.Y.S.2d 469 [widespread publication of court's ruling on suppression motion with detailed rendition of testimony adduced at pretrial hearing]; People v. Luedecke, 22 A.D.2d 636, 258 N.Y.S.2d 115 [television broadcast of defendant's re-enactment of the crime]; People v. Martin, 19 N.Y.2d 864, 280 N.Y.S.2d 594, 227 N.E.2d 407 [television broadcast of damaging interviews with defendant permitted by police]; see, also, Irvin v. Dowd, supra; People v. Sepos, 22 A.D.2d 1007, 254 N.Y.S.2d 759, affd. 16 N.Y.2d 662, 261 N.Y.S.2d 293, 209 N.E.2d 285).

With these principles in mind, then, we turn to the evidence presented to determine whether this is one of the exceptional cases in which a pre-voir dire change of venue should be ordered.

Among the factors considered in reaching our earlier determination was the timing of the motion itself. The application was made several months in advance of the scheduled trial date and, ordinarily, the intensive news coverage accorded even to a crime of this nature could well be expected to abate with the passage of time, thus permitting "the fires of prejudice [to] cool" (Groppi v. Wisconsin, supra, 400 U.S. p. 510, 91 S.Ct. p. 493; see, also, Stroble v. California, 343 U.S. 181, 192, 72 S.Ct. 599, 604, 96 L.Ed. 872). The undisputed evidence now before us, however, makes plain that any such expectation has not come to pass in the case at bar.

In the 50-day period ending November 2, 1982, fully 76 news articles appeared in the local press concerning the case. Thirty-two occupied front-page space and were accompanied by more than 50 photographs. The coverage surpassed that of any other story even in this pre-election period, and was carried by the Journal-News, a newspaper received by two-thirds of the households in Rockland County. The articles, inter alia, repeatedly reviewed the facts of the crime and pointed out the heavy cost to be borne by the taxpayers on account of the court proceedings. They frequently highlighted the continuing anguish of the community and the families of the victims, and publicized the determination of many never to forget the slain officers and to punish their killers. Indeed, the Journal-News, in an apparent attempt to increase circulation, advertised at newsstands that it...