Excerpted From: Haley Loquercio, How Free Is Free Speech: Media Bias, Pretrial Publicity, and Defendants' Need for a Universal Appellate Rule to Combat Prejudiced Juries, 126 Penn State Law Review 875 (Spring, 2022) (373 Footnotes) (Full Document)


HaleyLoquercioIn 1989, a jury convicted five young Black and Latino teenagers for the rape and murder of a white woman. In hundreds of newspaper articles, the media called the boys “bloodthirsty,” “animals,” “savages,” “human mutations,” a “wolf pack,” and a “gang.” The jury sentenced each teenager to a maximum of thirteen years in prison. However, all of the convictions were overturned when the true killer confessed to the crime. In 1998, a jury convicted four LGBTQ+ women of Latin descent after the homophobic media, town, and prosecutor branded the women as “satanic child molester[s].” The jury sentenced all four women to fifteen years in prison. Then, the court fully exonerated the women in 2016. In 2018, a jury convicted a white Chicago police officer for shooting and killing a Black 17-year-old named Laquan McDonald. Between the shooting in 2014 and trial 2018, one media outlet alone published 122 news stories about the crime. Because of the media's coverage, jurors admitted to being aware of aspects of the case that did not come into evidence at trial. The former officer remains guilty of murder.

All of those eleven defendants--regardless of race, gender, age, occupation, innocence, or guilt--were targets of a crime-obsessed media. Media portrayals dramatize “already-traumatic” events. These sensationalized portrayals serve the media's own interests to generate viewers, higher ratings, and advertising revenue, but mislead the public because the media's pretrial depiction of crimes often has anti-defendant bias. Anti-defendant bias negatively impacts jurors' perceptions of the defendants and positively impacts jurors' perceptions of the prosecution's evidence. However, pretrial publicity triggers First Amendment protections for the media. Pretrial publicity also triggers defendants' Sixth Amendment right to an impartial jury. The Supreme Court has not provided clear guidance for defendants who allege that their jurors were not impartial because of pretrial publicity exposure. Accordingly, this Comment discusses the need for a universal rule which gives all defendants an equal opportunity to appeal their convictions if pretrial publicity prejudiced their jurors.

Part II of this Comment addresses how the media impacts American society, and more specifically, how pretrial publicity affects potential jurors. While judicial methods do exist to combat the effects of pretrial publicity, these methods are not usually successful. Part II next introduces the relevant Supreme Court precedent on pretrial publicity and the Court's current guidance for when defendants can successfully appeal a conviction because of pretrial publicity.

Part III explains how the current Supreme Court guidance for pretrial publicity-based appeals lacks clarity and effectiveness. A new rule should be created for appellate courts to apply to all defendants who allege they were convicted by biased juries due to juror exposure to pretrial publicity. Part III then suggests a universally applicable rule for all defendants based on each defendant's unique procedural history in the courts below.

[. . .]

The First Amendment allows media outlets to publish stories about defendants before trial, and the Sixth Amendment gives defendants the right trial by impartial jurors. However, defendants whose cases were hounded by publicity before they even went to trial, like the five Black and Latino boys, the four Latinx, LBGTQ+ women, and the white former officer, have no universally applicable means to appeal their convictions.

While the Federal Rules of Criminal Procedure provide methods for combating the impact of pretrial publicity, these methods lack efficacy in reality. Additionally, the Court's current precedent does not provide lower courts with the necessary guidance: defendants have no universal direction to appeal convictions from juries who were affected by pretrial publicity-generated prejudice. Therefore, the Court should articulate a new rule that provides defendants and lower courts with clear guidance for handling the friction between defendants' rights to a fair trial and the media's right to freedom of the press.

J.D. Candidate, The Pennsylvania State University, Penn State Law, 2022.