Wednesday Writs: Pre-Trial Publicity and Jury Bias in Irvin v. Dowd

L1: In the mid-1950s, a string of murders near Evansville, Indiana prompted residents to begin buying weapons, locking their doors, and side-eyeing their neighbors. The first killing was that of pregnant 33 year old Mary Holland, shot in the head on December 2, 1954 in the bathroom of the liquor store she owned with her husband. Like the several murders that would follow, the motive was robbery. The second of these came three weeks later, when gas station attendant Welsey Kerr, 29, was found in a nearly identical state as Mary in the bathroom of the gas station where he worked.  The cash register was empty when police arrived. The first two murders were linked quickly, due to the robberies and the use of a .38 in each shooting. The alarm was sounded, an award was offered, and the area remained on high alert. But a few months went by, long enough for folks to let their guard down; it appeared whoever was responsible had moved on. However, the terror returned in March 1955, when a young boy came home from school to find his mother, a housewife, bound and shot to death just as the first two victims had been.

From Wikipedia: Leslie Irvin’s wanted poster during his absconsion

The series of murders culminated a week later with the triple homicide just across the state line in Kentucky of farmer Goebel Duncan and two of his family members. Mr. Duncan’s wife was also shot, but survived, blinded with no memory of the attack. A neighbor of the Duncan farm saw Mr. Duncan speaking to a man at the farm that day. The neighbor didn’t know the man, but took note of his vehicle. The description of a dark colored, beat-up car was given to police and to the public.

Sometime in the weeks that followed, a group of young “junior sheriffs” were out riding around when they saw a car sitting idle. The boys teased each other that perhaps this was the murderer’s car. They shouted to the driver that they were “investigators”, and the car quickly drove away. One of the boys thought that was suspicious and managed to memorize the number of its Indiana license plate. But it wasn’t until the boy read the description of the vehicle in the newspaper that he realized he may actually have information, and called authorities.

The plate came back to a recently paroled convicted burglar named Leslie Irvin. Irvin was taken into custody where he confessed to several burglaries – and six murders. The murders themselves had been major news in Gibson and Vanderburgh counties, and the arrest and confession of a suspect was even bigger. Irvin was dubbed “the Mad Dog” by the local news media, and the name stuck.

Irvin was indicted in Vanderburgh County for the murder of Welsey Kerr, whose wallet was found on Irvin at the time of his arrest. His court appearances were as sensationalized as the news of his capture. Irvin was brought into the courtroom in shackles, including a long, “leash-like” chain, befitting his nickname as the Mad Dog. Fearing Irvin could not get a fair trial in Vanderburgh County, his attorneys requested a change of venue, which was granted and the trial was moved – to adjacent Gibson County. Irvin’s attorneys objected, arguing that the crimes and arrest were no less publicized and a trial in Gibson would be no more fair than a trial in Vanderburgh. Thus, Irvin filed two additional motions for  change of venue, but both were denied, because Indiana law provides for only one change of venue.  Over 400 jurors were summoned; 268 of them were excused outright over their stated bias. Of the 12 impaneled, 8 stated during voir dire that they believed Irvin was guilty, but agreed that they would keep an open mind and fairly examine the evidence. Unsurprisingly, Irvin was tried and convicted and sentenced to death. He appealed, but the Indiana Supreme Court upheld the verdict. Irvin then tried to file an appeal with the United States Supreme Court, but certiorari was denied on the grounds that Irvin had not exhausted state court remedies.

Thereafter, Irvin filed a writ of habeas corpus in the Seventh Circuit Court of Appeals, which was denied. Irvin’s petition went to SCOTUS, was sent back to the Court of Appeals, and denied. He once again appealed to the Supreme Court. This time, SCOTUS agreed to hear Irvin’s appeal in Irvin v. Dowd, our case of the week.

(Before the Court could hear his case, Irvin escaped from the Gibson County Jail in Indiana. He made his way through four locked doors using keys he fashioned out of the stiff covers of paperback novels, and disappeared. He made it three weeks, and all the way to San Francisco before being caught and returned to Indiana.)

Irvin attacked the constitutionality of Indiana’s change of venue statute, citing a decision by the Indiana Supreme Court in another case, Gannon v. Porter Circuit Court, in which it was held that when it does not appear that the change of venue as granted will provide the fair trial to which a defendant is entitled, a second change of venue is required. But the prosecutor in Irvin’s case argued that the Gannon decision was different in that the prosecutor in Gannon agreed with the defendant that the second venue was likewise deficient. Since he, the prosecutor in the Irvin case, did not agree with Irvin, the new rule didn’t apply.

Writing for a unanimous Court, Justice Clark pointed out that the Gannon decision did not note any requirement of consensus. A court’s determination of the impartiality of a particular venue is not reliant upon the prosecution’s recommendation, but must be made under the totality of all circumstances. Clark wrote about the historical underpinnings of the “fair trial” free from the prejudicial effects of too much publicity. However, he conceded that it is not required that a juror have no prior knowledge at all of the case:

It is not required, however, that the jurors be totally ignorant of the facts and issues involved. 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.

This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Precedent put the burden of proof on the challenger to show that a particular juror’s impartiality was impaired, and the onus of determining whether that burden is met upon the presiding judge. Therefore, Clark opined, the appeals court should have examined the individual voir dire of the juries in ruling upon the second round of motions for change of venue.  Then Clark went a step further, discussing the facts surrounding public opinion and publicity as reflected in the record.

…so much so that curbstone opinions, not only as to petitioner’s guilt but even as to what punishment he should receive, were solicited and recorded on the public streets by a roving reporter, and later were broadcast over the local stations… The motion further alleged that the newspapers in which the stories appeared were delivered regularly to approximately 95% of the dwellings in Gibson County, and that, in addition, the Evansville radio and TV stations, which likewise blanketed that county, also carried extensive newscasts covering the same incidents. These stories revealed the details of his background, including a reference to crimes committed when a juvenile, his convictions for arson almost 20 years previously, for burglary, and by a court-martial on AWOL charges during the war.

…

One story dramatically relayed the promise of a sheriff to devote his life to securing petitioner’s execution by the State of Kentucky, where petitioner is alleged to have committed one of the six murders, if Indiana failed to do so. Another characterized petitioner as remorseless and without conscience, but also as having been found sane by a court-appointed panel of doctors. In many of the stories, petitioner was described as the “confessed slayer of six,” a parole violator and fraudulent check artist. Petitioner’s court-appointed counsel was quoted as having received “much criticism over being Irvin’s counsel,” and it was pointed out, by way of excusing the attorney, that he would be subject to disbarment should he refuse to represent Irvin. On the day before the trial, the newspapers carried the story that Irvin had orally admitted the murder of Kerr (the victim in this case), as well as “the robbery-murder of Mrs. Mary Holland; the murder of Mrs. Wilhelmina Sailer in Posey County, and the slaughter of three members of the Duncan family in Henderson County, Ky.”

This probably seems normal to us, in this day and age in which every discoverable detail of the lives of perpetrators of notorious crimes permeate the news media. But in 1955, that was not the case. It took some doing to publicize such information far and wide. The Court ultimately vacated Irvin’s conviction:

As one of the jurors put it, “You can’t forget what you hear and see.” With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his guilt.

Irvin was retried, again convicted, and this time sentenced to spend the rest of his life in prison. The serial killer’s case was the first in which a criminal conviction was overturned due to pre-trial publicity. He died in Indiana State Prison in 1983, after 25 years as a model prisoner.

L2: Speaking of juries, a new California law will permit convicted felons to serve on juries. Says the law’s author, current laws make it nearly impossible for black men to get a jury of their peers.

L3: The widely-denounced California law that makes the use of contract labor unfeasible has earned the state two lawsuits, one each from PostMates and Uber. The backlash from freelancers over the law has been loud, as companies have stopped using contractors rather than treat them like full time employees.

L4: A new law in Maryland will require the state’s backlog of rape kits be submitted for testing, a push that should be happening throughout the country.

L5: Alex Jones’ refusal to cooperate in the discovery phase of the defamation lawsuit brought against him by a Sandy Hook parent will cost him $100,000 in legal fees.

L6: The overdose death of a young rapper and the subsequent lawsuit filed by his mother against his label raises some questions over the current carnation of business arrangements between corporate interests and vulnerable young artists.

L7: A federal court dismissed a lawsuit by Trump advisor Charles Kupperman challenging his congressional subpoena. The reason: the subpoena is withdrawn and the Court deems the issue moot.

L8: A group of homeless mothers have taken up residence in a vacant home, prompting the company who owns it to initiate eviction proceedings. The mothers assert a right to remain in the home, and while the courts are unlikely to side with them, the dispute has prompted discussion about housing rights and homelessness in the area. 

L9: Chief Justice Roberts released the 2019 Year-End Report on the Federal Judiciary. It’s a good read for those interested.

L10: Dumb Criminal of the Week: Is that a flute in your pants? That’s… that’s a flute in your pants.