No. 82-353
I N THE SUPREME COURT O F THE S T A T E OF MONTANA
1982
THE STATE O F MONTANA, e x r e l . ,
D A N I E L C H R I S T O P H E R COBURN,
Relator,
THE HONORABLE GORDON R . BENNETT,
D I S T R I C T JUDGE OF THE F I R S T J U D I C I A L
D I S T R I C T O F THE S T A T E O F MONTANA, I N
AND FOR THE COUNTY O F L E W I S & CLARK,
Respondent.
O R I G I N A L PROCEEDING :
For R e l a t o r :
Jackson L a w F i r m ; G r e g o r y J a c k s o n , H e l e n a , X o n t a n a
For R e s p o n d e n t r
Charles Graveley, County Attorney, Helena, Montana
S u b m i t t e d on B r i e f s : S e p t e m b e r 23, 1982
Decided: December 23, 1982
4 . Justice Fred J. Weber delivered tne Opinion of the
Court.
This matter comes before us on a petition for wric of
supervisory control. In issuing the writ, we assumed juris-
diction over a single issue in this cause: Did the District
Court abuse its discretion by refusing to grant relator's
motion for a change of venue? We find that the refusal to
grant the motion was an abuse of discretion under the facts
of this case.
On May 20, 1982, R.H., an eleven-year-old Helena
schoolgirl, reported that she had been abducted and sexually
assaulted while on her way to school that morning. R.H.
provided police with a description of her assailant and the
vehicle used in the abduction. Later that day police located
the vehicle at the home of Daniel Coburn's parents. Coburn,
who was visiting his parents, was contacted and agreed to go
to the sheriff's department for questioning. Sometime after
his arrival at the sheriff's office, Coburn allowed officers
to take a photograph of him for use in a photo lineup. R.H.
identified Coburn's picture from amongst those in the photo
array. Coburn was then arrested and charged with aggravated
kidnapping and sexual intercourse without consent.
On May 21, 1982, Coburn was brought before a justice
of the peace for his initial appearance. Bail was set at
$100,000. Later that same morning Coburn was brought before
District Judge Gordon Bennett, whereupon his bail was re-
duced to $15,000. Coburn's parents furnished bail by using
their residence as security, the unencumbered value of which
was twice the amount of the bail as required by section 4 6 -
9-401(2), MCA. Coburn was released sometime in the early
afternoon of May 21, 1982. It was at this point that public
sentiment toward relator Coburn began to manifest itself.
The exhibits and affidavits attached to relator's motion for
change of venue show the following facts.
The arrest of Coburn was front-page news in the Inde-
pendent Record, the only daily newspaper in Lewis and Clark
County. The article about Coburn's arrest was entitled,
"Helenan Charged With Rape," and was accompanied by a front-
page photograph of Coburn being led from the jail to the
courthouse by two sheriff's deputies. Pt appears in the
photograph that Coburn's hands are bound behind his back.
The article reported chat, "Sheriff Chuck OIReilly said this
morning he expected Coburn to be bailed out of jail at any
time. He said his reaction to Bennett's action lowering
bond was 'unprintable--and you can print that.'"
A second article in the May 21 Independent Record was
headlined "Help From Young Victim Amazed Helena's Police."
The article read as follows:
"County Attorney Charles Graveley was
shaking his head in wonder.
"'When you read her statement, ' he said
of Thursday's 11-year-old rape victim,
'you'd think she was 28 or 29, and well-
educated at that.
"'It's the best statement from a rape
victim I have seen in five years,' he
said.
"Assistant County Attorney Steve Garrison
had another way of putting it this
morning.
"'de picked the wrong little g i r l , he
said. 'She's the kind that when you say,
"describe the vehicle," she just does
it.
"Graveley, Sheriff Chuck O'Reilly and
Police Chief Bill Ware all credited the
young victim's careful descriptions of
her assailant and his pickup truck for
their officers' speedy arrest of the
s u s p e c t , 29-year-old D a n i e l Coburri o f
Leisure Village.
"Even a s w o r r i e d a s C e n t r a l S c h o o l o f f i -
c i a l s were w a r n i n g s t u d e n t s a b o u t s t r a n -
g e r s , and s e n d i n g n o t e s home a d v i s i n g
p a r e n t s t o d o t h e same, o f f i c e r s a i d e d by
the victim's t e l l i n g l y detailed descrip-
t i o n s were z e r o i n g i n on t h e s u s p e c t .
"The g i r l ' s s t a t e m e n t , w r i t t e n i n h e r
neat handwriting about four hours a f t e r
the incident, is revealing. The g r i m
f a c t s , d e t a i l e d i n l o g i c a l s e n t e n c e s of
p e r f e c t l y s p e l l e d words, were l a i d o u t i n
careful chronological order. With t h e
e x c e p t i o n o f t h e l a s t few numbers o f h e r
a s s a i l a n t ' s l i c e n s e p l a t e , few d e t a i l s
escaped her a t t e n t i o n .
"Those d e t a i l s made f o r a c o m p e l l i n g c a s e
during t h i s morning's court hearing t o
show p r o b a b l e c a u s e t h a t Coburn c o m m i t t e d
t h e crime.
"For i n s t a n c e , t n e g i r l ' s d e s c r i p t i o n o f
the suspect--from t h e dark h a i r hanging
o v e r h i s b e a r d - s t u b b l e d f a c e t o t h e brown
corduroy p a n t s , s t r i p e d t - s h i r t , yellow
and brown p l a i d j a c k e t , w h i t e t e n n i s
shoes and dark sunglasses--exactly
matched t h e a p p e a r a n c e a n d c l o t h i n g o f
the defendant, o f f i c e r s said.
"So d i d t h e s m a l l brown p o c k e t k n i f e s h e
s a i d was h e l d by h e r a s s a i l a n t . I t was
found i n Coburn's pickup.
"Her d e s c r i p t i o n o f t h e p i c k u p , a y e l l o w
S u b a r u B r a t , i n c l u d e d a d a r k s t r i p e on
t h e s i d e of t h e t r u c k ' s bed, p l a i d s e a t
covers, a blue s t i c k - s h i f t handle, a
brown v i n y l d a s h b o a r d , a n d t h e word
' B r a t ' and rainbow-type s t r i p e s n e a r t h e
wlndow. A l l o f i t c h e c k e d o u t a s m a t c h i n g
the suspect's vehicle.
" G r a v e l e y s a i d t h e g i r l a l s o was a b l e t o
d e s c r i b e most of t h e r o u t e t o t h e Davis
Gulch s c e n e of t h e a s s a u l t i n s p i t e of
b e i n g t o l d t o duck down, a s w e l l a s many
d e t a i l s a b o u t t h e a r e a w h e r e s h e was
a s s a u l t e d , and s h e was a b l e t o t e l l o f f i -
cers where h e r f i n g e r p r i n t s c o u l d be
found on t h e p i c k u p .
" G r a v e l e y s a i d s m a l l p r i n t s were f o u n d a t
t h o s e sites, b u t have n o t y e t been
matched w i t h t h e v i c t i m ' s p r i n t s .
"Although the girl was described as being
'nearly hysterical' immediately after she
had been released, Graveley said she was
composed later in the day and appeared to
be standing up well to her ordeal. He
said she was a 'very cooperative little
girl' who was getting 'tremendous support
from her family.'
"Graveley said that as the suspect was
being arraigned this morning, the young
victim was at home asleep."
At 4:00 p.m. on May 21 a group of over 300 demonstra-
tors gathered on the courthouse lawn. The Independent Record
reported the demonstration in its Saturday morning edition.
The large front-page headline read: "Angry Mob Resists
Judge's Arguments." Three photographs accompanied the
portion of the article which was on the front page. One was
of the demonstrators on the lawn; one was of a demonstrator
speaking with Judge Bennett; and one was of defendant
Coburn. A fourth picture of other demonstrators was on an
inner page. The article described the situaton as an "angry
confrontation" between Judge Bennett and an "outraged crowd"
--"protests of a magnitude unprecedented in recent memory."
The crowd was described as "leaderless but united by fear
for their children and by their anger at Bennett." Twenty
police officers were on hand when the protestors were
allowed to enter the courthouse to meet with Judge Bennett.
The crowd booed the judge when he arrived to speak with
them. When Judge Bennett tried to explain bail laws, the
Independent Recorci reported that, I [m]embers of the judge's
'
angry audience weren't impressed, insisting again and again
that Coburn clearly was too dangerous to be freed. Many
said the constitutional provision regarding excessive bail
should be changed. All cheered loudly when Graveley said
it was his opinion that $100,000 bail to keep Coburn in jail
t o p r o t e c t t h e community was l e g a l l y p r o p e r . "
On Sunday, May 23, the I n d e p e n d e n t Record carried a
front-page article headlined, "Accused Rapist Free on
Bail[;] Parents Still Angry at Sunday School Teacher's
Release." The a r t i c l e was a c c o m p a n i e d by a p h o t o g r a p h o f a
large advertising sign at a Helena s e r v i c e station. The
p h o t o g r a p h was p r i n t e d on t h e f r o n t page; the sign read,
"JUDGE BENNETT I S WRONG." The p h o t o was c a p t i o n e d , " [TI h i s
sign at the Exxon station on Cedar Street exemplified
c o n t i n u i n g s e n t i m e n t f o r t h e 11-year-old girl." The a r t i c l e
d e s c r i b e d Coburn a s " t h e man who s p a r k e d f e a r and o u t r a g e i n
hundreds of Helenans." The article was essentially a
r e i t e r a t i o n of the previous day's story, and included the
comment, " [ t l h a t Coburn h a s n o t b e e n c o n f i n e d m i g h t a d d more
fuel to the outrage that caused the greatest spontaneous
o u t p o u r i n g o f a n g e r i n H e l e n a i n r e c e n t memory."
On May 2 5 , 1982, t h e I n d e p e n d e n t Record p u b l i s h e d an
e d i t o r i a l e n t i t l e d , " B a i l I s s u e I s n ' t Easy t o Resolve." The
editorial stated that the defendant's bail was reduced to
$15,000, " e n a b l i n g him t o p o s t bond and roam f r e e u n t i l h i s
next c o u r t appearance."
A front-page a r t i c l e i n t h e I n d e p e n d e n t R e c o r d on May
26 was h e a d l i n e d , "Rape C a s e S p u r s H e l e n a A c t i v i s m . " The
s t o r y was a r e p o r t on a p a n e l d i s c u s s i o n o n t h e s u b j e c t o f
s e x o f f e n d e r s a n d t h e l a w w h i c h was h e l d a t a H e l e n a e l e m e n -
tary school. The L e w i s a n d C l a r k C o u n t y A t t o r n e y was o n e o f
the panelists. The a r t i c l e s a i d t h a t :
" [ C o b u r n ] i s a t Warm S p r i n g s S t a t e H o s p i -
t a l f o r a mental evaluation t o determine
i f h e s h o u l d p l e a d i n n o c e n t by r e a s o n o f
insanity.
"The r a p e i n c i d e n t c l e a r l y l e d t o T u e s d a y
night's three-hour meeting, but panellst
County Attorney Charles Graveley told the
group early on that the specifics of the
case could not be discussed because
Coburn has a right to fair trial.
"In response to an audience question,
however, Graveley confirmed that a
defendant who was found to be insane can
be 'turned loose' after 180 days at a
mental institution such as Warm Springs,
if a psychiatrist says he is ready to
leave.
" 'Once he's found insane, he virtually
has a license to commit another crime and
another crime and not go to prison,'
Graveley said. "
The Independent Record carried reports on two organi-
zations which grew out of the Coburn incident and the panel
dlscusslon on sex offenders. A committee was formed to find
a write-in candidate to run against Judge Bennett in the
June 8 primary election. Judge Bennett was unopposed in his
re-election campaign. A group called Citizens to Change
Criminal Laws was also formed. According to the Independent
Record, the members of Citizens to Change Criminal Laws were
"upset that concern for the rights of criminal offenders has
overshadowed the right of society to be protected." The
goals of tne group were "to research and study and then
propose changes to existing state law on child molestation,
rape, insanity and bail." County Attorney Graveley spoke to
the group on at least one occasion. The newspaper reported
tnat, "Graveley said he was present 'only to give informa-
tion and not as an advocate. ' He said his major complaint
was that judges pay more attention to the legal requirement
that the bail must consider the ability of the accused to
pay than another requirement that bail should be commensur-
ate with the nature of the offense."
On Wednesday, May 26, 1982, an act of vandalism asso-
ciated witn t h e Coburn c a s e o c c u r r e d in t h e Helena area.
The word "RAPE" was p a i n t e d w i t h s t e n c i l s and w h i t e p a i n t
b e n e a t h t h e "STOP" o n s i x t y H e l e n a s t o p s i g n s . Photographs
of t h e "STOP RAPE" s i g n s a p p e a r e d t h r e e times i n t h e I n d e -
p e n d e n t Record. Two of t h e photographs were cropped and
only the octagon w i t h "STOP RAPE" displayed upon i t was
prlnted. One o f t h e s e c r o p p e d p h o t o s was p r i n t e d w i t h a
front-page article; t h e o t h e r accompanied a n e d i t o r i a l . A
letter was sent to the I n d e p e n d e n t Record in which the
a u t h o r , who c l a i m e d t o r e p r e s e n t t h e "Women o f H e l e n a , " s a i d
t h a t s h e and o t h e r s p a i n t e d t h e s i g n s b e c a u s e of t h e r a p e o f
R.H. The newspaper quoted the letter as reading, " [w]e
r e s e n t t h e i g n o r a n c e and l a c k o f commitment by a l l o f f i c i a l s
t o a c t on t h i s immoral and h e i n o u s c r i m e o f rape. . . We
w i l l n o t be s i l e n t any l o n g e r . T h o s e i n power m u s t r e c o g -
n i z e o u r power a s w e h a v e b e e n f o r c e d t o r e c o g n i z e y o u r s . "
The newspaper a l s o s a i d t h e l e t t e r s t a t e d t h a t " t h e Women o f
H e l e n a w i l l c o n t i n u e t o t a k e m a t t e r s i n t o t h e i r own h a n d s a s
long a s ' t h e system c o n t i n u e s t o ignore our c o n c e r n s . ' "
Coburn was a r r a i g n e d o n J u l y 1 9 , 1 9 8 2 . The I n d e p e n d e n t
Record g a v e f r o n t - p a g e c o v e r a g e t o h i s a r r a i g n m e n t u n d e r t h e
h e a d l i n e , " I n n o c e n t , Coburn S a y s . " k l a r g e p i c t u r e o f Coburn
was run with the article. The article reported that,
"is] ince his arrest, Coburn and his wife, Barbara, have
moved o u t o f their Leisure Village trailer home to avoid
reprisals. " A f f i d a v i t s s u b m i t t e d t o t h e D i s t r i c t C o u r t by
Coburn and h i s p a r e n t s s t a t e t h a t Coburn and h i s w i f e w e r e
f o r c e d t o move t o a v o i d r e p r i s a l s ; t h a t when Coburn t r i e d t o
move h i s m o b i l e home t o a d i f f e r e n t t r a i l e r p a r k , t h e resi-
d e n t s of t h e new p a r k c o m p l a i n e d t o t h e manager a n d Coburn
was p r e v e n t e d f r o m moving t o t h e new p a r k ; a n d t h a t Coburn
r e c e i v e d d e a t h t h r e a t s f r o m p e r s o n s who c a l l e u a t t h e r e s i -
dence of h i s r e l a t i v e s , t h e home t o w h i c h h e moved after
p r o s e c u t i o n of t h e c a s e began.
Relator appended t o h i s motion for change of venue
many "letters to t h e e d i t o r " w h i c h were p u b l i s h e d by t h e
Independent Record. The l e t t e r s w h i c h condemned Judge
B e n n e t t ' s r e d u c t i o n of C o b u r n ' s b a i l c o n t a i n e d comments s u c h
a s these: "We f u r t h e r w i s h t o e x p r e s s o u r u n h a p p i n e s s w i t h
the inadequacy of a judicial s y s t e m which all too often
f a v o r s t h e r i g h t s of the perpetrators of crimes instead of
t h e r i g h t s o f t h e v i c t i m s " ( w r i t t e n by t h e p r e s i d e n t o f t h e
H e l e n a E d u c a t i o n A s s o c i a t i o n ) ; " I r e a d t h a t t h e man i n d e n t i -
f i e d i n t h i s c r i m e i s b a c k on t h e s t r e e t s i n l e s s t h a n 24
h o u r s ; " " [ a l t l e a s t I know t h e name a n d f a c e o f t h i s s u s p e c t
. . . Our c o u n t y a t t o r n e y a p p e a r s t o h a v e a n a b u n d a n c e o f
evidence with which to prosecute this particular case;"
" [ o ] n e w o u l a h o p e t h a t t h e s u s p e c t would n o t b e i m m e d i a t e l y
free to possibly strike again;" " [ h l o w d a r e you [Judge
Bennett] make a mockery of the incredible effort by the
c h i l d who p r o v i d e d C h a r l e s G r a v e l e y w i t h t h e b e s t s t a t e m e n t
he h a s h e a r d f r o m a r a p e v i c t i m i n f i v e y e a r s . " A number o f
l e t t e r s were p u b l i s h e d which supported Judge Bennett's
r e d u c t i o n of b a i l . Even some o f t h o s e c a r r i e d t h e i m p l i c a -
t i o n t h a t Coburn had c o m m i t t e d t h e c r i m e w i t h which h e was
charged.
County A t t o r n e y G r a v e l e y was c a m p a i g n i n g f o r re-
election during the pendency of the Coburn case. The
Independent Record r a n a " C a n d i d a t e s Say" s e c t i o n i n which
c a n d i d a t e s w e r e p r o v i d e d s p a c e t o s p e a k o u t on t h e i s s u e s .
I n o n e s u c h s e c t i o n , G r a v e l e y was q u o t e d a s s a y i n g :
"'How many times h a v e w e h e a r d o f c r i m e s
b e i n g c o m m i t t e d by p e r s o n s w h i l e o u t on
b a i l f a c i n g s e r i o u s c h a r g e s ? I f one were
t o f o l l o w t h e r a t i o n a l e t h a t bond m u s t b e
s e t i n a n amount t h e d e f e n d a n t c a n
a f f o r d , no o n e would be h e l d b e f o r e a
c o n v i c t i o n was h a d , b e c a u s e i f h e c a n n o t
a f f o r d b a i l , he s h o u l d be r e l e a s e d on h i s
own r e c o g n i z a n c e . T h i s i s n o t contem-
p l a t e d by t h e l a w and I c a n ' t a g r e e w i t h
t h o s e who e s p o u s e s u c h p h i l o s o p h y .
"'The b a i l i n s e r i o u s crimes must be s e t
sufficiently high t o insure t h a t the
d e f e n d a n t i s n o t g o i n g t o commit a n y more
crimes a g a i n s t our c i t i z e n s while await-
ing t r i a l on the former charge.'"
(Emphasis s u p p l i e d . )
All of the i n f o r m a t i o n which w e have o u t l i n e d above
was b e f o r e t h e D i s t r i c t C o u r t when i t r u l e d upon r e l a t o r ' s
motion f o r change o f venue.
A criminal defendant is guaranteed the right to a
t r i a l by a n i m p a r t i a l j u r y . U.S. C o n s t . amend. V I ; Montana
Const. a r t . 11, S 24. In essence, the r i g h t t o a jury t r i a l
g u a r a n t e e s t o t h e c r i m i n a l l y a c c u s e d a f a i r t r i a l by a p a n e l
of "indifferent" jurors. I r v i n v. Dowd (1961), 366 U.S.
f a i l u r e t o accord an accused a f a i r h e a r i n g v i o l a t e s even
minimal s t a n d a r d s of due process. I n r e O l i v e r ( 1 9 4 8 ) , 333
U.S. 257, 68 S . C t . 499, 92 L.Ed. 682. A defendant or the
p r o s e c u t i o n may move f o r a c h a n g e o f p l a c e o f t r i a l on t h e
g r o u n d t h a t t h e r e e x i s t s i n t h e c o u n t y i n which t h e c h a r g e
is p e n d i n g such p r e j u d i c e t h a t a f a i r t r i a l c a n n o t be had
there. S e c t i o n 46-13-203(1), MCA. A motion f o r change of
v e n u e is a d d r e s s e d t o t h e d i s c r e t i o n o f t h e t r i a l c o u r t ancj
a d e n i a l is n o t e r r o r i n t h e absence of a n abuse of d i s c r e -
tion by the trial court. S t a t e v. Kirkaldie ( 1 9 7 8 ) , 179
Mont. 283, 291, 587 P.2d 1 2 9 8 , 1303.
It is important to note that relator did not allege in
his motion for change of venue that prejudice existed solely
as a result of prejudicial publicity. Therefore, the
"indicia of denial of fair trial" resulting from prejudicial
publicity which were first denominated in State v. Board
(1959), 135 Mont. 139, 143-144, 337 P.2d 924, 927, need not
control our resolution of the venue question now before us.
Every application for change of venue must be determined by
the facts and circumstances presented by it; no general rule
can be laid down. State v. Spotted Hawk (1899), 22 Mont.
33, 53, 55 P. 1026, 1031. In analyzing the facts, we must
consider all of the indications of prejudice. State v.
Bashor (1980), Mont. , 614 P.2d 470, 476, 37
St.Rep. 1098, 1102.
An analysis of the facts in a change of venue case in
Montana is no longer directed toward a determination of
whether there has been a showing of prejudice substantial
enough to make a fair trial impossible. Since our decision
in State v. Link (1981), Mon t . , 640 P.2d 366, 368,
38 St.Rep. 982, 985, " [tlhe rule is that an accused is
entitled to a change of venue when it appears that there are
reasonable grounds to believe that the prejudice alleged
actually exists and that by reason of the prejudice there is
a reasonable apprehension that the accused cannot receive a
fair and impartial trial."
In his brief relator contended that there are aroused
feelings in the community, that there is a threat to the
personal safety of relator, that newspaper articles have
consisted of more than objective dissemination of informa-
tlon, that the established oplnion of the community is that
r e l a t o r is g u i l t y , and t h a t i t w i l l b e d i f f i c u l t or: impos-
s i b l e t o s e c u r e a f a i r and i m p a r t i a l j u r y .
W f i n d t h a t t h e e x h i b i t s and a f f i d a v i t s which r e l a t o r
e
attached to his brief i n support of motion for change of
venue s u p p l y r e a s o n a b l e grounds t o b e l i e v e t h a t t h e p r e j u -
dice alleged by relator actually exists. Angry citizens
marched o n t h e c o u r t h o u s e . P u b l i c meetings were h e l d , out
of which grew o r g a n i z a t i o n s d e v o t e d t o removing t h e judge
who l o w e r e d r e l a t o r ' s b a i l and t o d e a l i n g w i t h p e r s o n s who
commit s e x crimes. V a n d a l i s m o c c u r r e d a n d t h r e a t s w e r e made
against relator. W h i l e c o v e r a g e o f t h e c a s e by t h e I n d e p e n -
d e n t R e c o r d was f a r l e s s o f f e n s i v e t h a n t h a t i n S h e p p a r d v .
Maxwell ( 1 3 6 6 ) , 384 U.S. 3 3 3 , 86 S . C t . 1 5 0 7 , 1 6 L.Ed.2d 600,
on s e v e r a l o c c a s i o n s t h e n e w s p a p e r w e n t beyond a n o b j e c t i v e
d i s s e m i n a t i o n of information. I n s t e a d of calming an enraged
community and p r o v i d i n g a n a t m o s p h e r e i n w h i c h t h e p r o c e s s e s
of justice could go forward w i t h o u t b i a s , the Independent
Record inflamed an already angry populace. In addition,
comments made t o t h e I n d e p e n d e n t R e c o r d by S h e r i f f O ' R e i l l y ,
C o u n t y A t t o r n e y G r a v e l e y a n d Deputy C o u n t y A t t o r n e y G a r r i s o n
were p r e j u d i c i a l t o r e l a t o r .
I n S t a t e v. W i l l i a m s ( 1 9 7 9 ) , Mon t . , 6 0 4 P.2d
1224, 1227, 36 St.Rep. 2328, 2331, this Court said that
" ~ ex ]t r a j u d i c i a l s t a t e m e n t s by p r o s e c u t o r s and l a w e n f o r c e -
ment p e r s o n n e l p r e j u d i c i a l t o d e f e n d a n t and which a r e d i s -
s e m i n a t e d i n t h e news m e d i a p r i o r t o t r i a l may u n d e r some
circumstances destroy the impartiality of prospective
jurors." The comment by S h e r i f f O ' K e i l l y t h a t h i s r e a c t i o n
t o a r e d u c t i o n of b a i l f o r r e l a t o r was " u n p r i n t a b l e " c l e a r l y
implied a belief that relator is guilty and dangerous.
County Attorney Graveley's campaign statement that bail
should insure that "the defendant is not going to commit any
more crimes" shows a total disregard for the fundamental
constitutional protection embraced by the concept of pre-
sumed innocence, and under the circumstances implies that
relator is guilty.
Perhaps most troublesome are the statements by
Graveley and Deputy County Attorney Garrison which were
printed in the article entitled, "Help from Young Victim
Amazed Helena's Police." Garrison's comment that "he picked
the wrong little girl" is an obvious statement of opinion as
to the guilt of relator. Graveley commented that the state-
ment of eleven-year-old R.H. sounded like it was written by
a well-educated twenty-nine-year-old and that it was the
best statement he had obtained from a rape victim in five
years. Given the problems of credibility associated with
the testimony of youthful witnesses, such a comment by the
County Attorney could only serve to enhance the credibility
of R.H.
Disciplinary Kuls 7-107 of the Canons of Professional
Ethics relates to trial publicity and states in pertinent
part that:
" ( a ) A lawyer or law firm associated with
the prosecution or defense of a criminal
matter shall not, from the time of the
filing of a complaint, information, or
indictment, the issuance of an arrest
warrant, or arrest until the commencement
of the trial or disposition without
trial, make or participate in making an
extrajudicial statement that a reasonable
person would expect to be disseminated by
means of public communication and that
relates to:
"(5) The identity, testimony, or credi-
bility of a prospective witness.
"(6) Any opinion as to the guilt or inno-
cence of the accused, the evidence, or
the merits of the case."
The Canons were adopted in order to maintain absolute
confidence in the integrity of the Bar and to insure the
efficient and impartial administration of justice. We
believe that the failure of the County Attorney and the
Deputy County Attorney to strictly adhere to the dictates of
DK 7-107(B) (5) and (6) has jeopardized the impartial admin-
istration of justice to relator by contributing to the
establishment of prejudice against relator. We also ques-
tion the wisdom and propriety of the County Attorney appear-
ing at public meetings which were spawned by the crime with
which relator is charged. The issues which the County
Attorney addressed at these meetings bore upon the public's
perception of relator's guilt or innocence. The fact that
his comments were couched in general terms does not elimin-
ate their prejudicial effect.
The respondent argues that voir dire is the proper
time to determine whether the prejudice which we have
outlined still existed at the time set for trial and that it
is premature for this Court to resolve the question on a
writ of supervisory control. We disagree. Not every venue
case requires that voir dire be employed to determine
whether prejudice still "exists and that by reason of the
prejudice there is a reasonable apprehension that the
accused cannot receive a fair and impartial trial." While
the determination of whether widespread prejudice prohibits
selection of an impartial jury is usually made during voir
dire, each case must turn on its special facts. United
States v. Engleman (E.D. Mo. 1980), 489 F.Supp. 48. It is
widely recognized in the federal courts that while voir dire
is usually essential to resolution of a venue question, a
motion for change of venue may be decided prior to voir dire
if the circumstances of the case indicate inherent yreju-
dice. United States v. Mandel (D. Md. 1976), 415 F.Supp.
1033, 1067-1072. "Effective and economic judicial adminis-
tration is not well served by calling an inordinate and
unwieldy number of veniremen to see if an unbiased jury
might be obtained, especially when it is already apparent
that a substantial chance of intolerable prejudice exists."
Engleman, supra, 489 F.Supp. at 50.
Beyond the question of judicial economy lie the
problems inherent in the voir dire system itself. Justice
Holmes said in Prank v. Mangum (1915), 237 U.S. 309, 349, 35
S.Ct. 582, 595-596, 59 L.Ed. 969, 989 (dissenting opinion),
that "[alny judge who has sat with juries knows that in
spite of forms they are extremely likely to be impregnated
by the environing atmosphere." 'The courtroom can exert a
unique pressure upon a juror or prospective juror which may
render that person's degree of impartiality indiscernible
even to himself. As the United States Supreme Court said in
Irvin v. Dowd ( 9 1 ) 366 U.S. 717, 728, 81 S.Ct. 1639,
1645, 6 L.Ed.2d 751, 759: "No doubt each juror was sincere
when he said that he would be fair and impartial to peti-
tioner, but the psychological impact requiring such a
declaration before one's fellows is often its father." Our
Court has recognized this problem at least since State v.
Spotted Hawk (1899), 22 Mont. 33, 56, 55 P. 1026, 1032:
"The fact that a jury was obtained in
Custer county, that answered all the
statutory requirements, after an
examination of 65 veniremen only, is not
at all conclusive upon the question of
the existence of such a prejudice in the
community as to render a fair and
Impartial trial impossible. 'This is not
the test to be applied to the question,
for such a jury might be found when the
public sentiment was in a blaze of
excitement and passion against one of the
parties to the action; and the pressure
of this public sentiment might make
itself felt during the trial, in very
many ways, upon the jury, upon the
witnesses and officers of court, and upon
the court itself. Jurors, witnesses and
officers cannot be insensible to a strong
and excited public feeling and sentiment
concerning the trial that is going on,
and are liable to be influenced by it,
unconsciously, and with an honest
Intention of doing their whole duty. The
court room is a public place, and a
trial, in which a community is deeply
~nterested,brings the people there; and
the pressure of their presence and
feeling is a strong argument, and almost
irresistible, one way or the other. The
influence of their presence, and the
expression of their interest in the event
of the trial, in divers ways, might give
a false coloring to the testimony, or
warp and bias the judgment in weighing
and considering it.' [Citing Kennon v.
Gilmer (lb85), 5 Mont. at 264, 5 P. at
d50.1"
We conclude that the prejudice which the record
reveals was still in existence at the time set for trial.
The trial was set for September 27. The campaign to remove
Judge Bennett was entering its final stage at this time.
Given the prominent place the Coburn case occupied in this
campaign and considering the nature and intensity of the
feelings which the case aroused, we fail to see how public
sentiment could have diminished in a community as small as
Helena. Further, we hold that by reason of the prejudice
there is a reasonable apprehension that relator cannot
receive a fair and impartiai trlal in Lewis and Clark
County.
Our assumption of jurisdiction is not premature.
" [Olur system of law has always endeavored to prevent even
the probability of unfairness." In re Murchison (1955), 349
U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942, 946. If,
upon presentation of a matter to us by means of a writ, it
is apparent from the recora that a relator will be deprived
of a fundamental right, both justice and judicial economy
require that we then resolve the issue in favor of relator.
The District Court abused its discretion by refusing
to grant relator's motion for a change of venue. The order
of the District Court is reversed. The District Court shall
conduct a hearing to determine whether the matter shall be
resolvea by transferring the case to a county in which a
fair trial may be had, or by directing that a jury be
selected in a county where a fair trial may be had and then
returned to Lewis and Clark County for trial. Section
46-13-203(3), MCA.
We concur:
1
Justices
Mr. J u s t i c e J o h n Conway H a r r i s o n d i s s e n t i n g .
I would d e n y t h e c h a n g e o f v e n u e and allow t h e t r i a l c o u r t to
go ahead with the trial in this county to see if sufficient
jurors c a n be q u a l i f i e d t o s i t . If, a f t e r c a l l i n g a number of
jurors, t h e c o u r t f o u n d t h a t p r e j u d i c e was s u f f i c i e n t t o w a r r a n t
a change of venue- then I would leave that decision to his
discretion. I n my o p i n i o n k t h e q u e s t i o n of a c h a n g e of venue
should remain in the hands of the trial judge.