7ASR3d104

AMERICAN

SAMOA GOVERNMENT, Plaintiff

 

v.

 

WEI

LI FANG, Defendant

__________________________________

 

AMERICAN

SAMOA GOVERNMENT, Plaintiff

 

v.

 

SIITU

SANERIVI, aka LUAPENE, Defendant

__________________________________

 

AMERICAN

SAMOA GOVERNMENT, Plaintiff

 

v.

 

WEI

KI FANG, Defendant

 

High

Court of American Samoa

Trial

Division

CR

No. 05-03

CR

No. 06-03

CR

No. 07-03

 

June

10, 2003

 

 

[1] A fair

trial in a fair tribunal is a basic requirement of due process.

 

[2] Due process

requires that a jury trial include: (1) a charge fairly made and fairly tried

in a public tribunal free of prejudice, passion, excitement, and tyrannical

power; (2) a panel of impartial, indifferent jurors; and (3) a verdict based on

evidence received in open court, not from outside sources.

 

[3] Due process

is violated when inflammatory and pervasive publicity taints a jury pool,

resulting in preconceived ideas by often misinformed jurors.

 

[4] There are

two ways in which to show that a jury has been unfairly tainted against a

criminal defendant—presumed (or inherent) prejudice and actual prejudice.

 

[5] In order to

demonstrate actual prejudice to a jury trial defendant, he or she must show

that it is reasonably likely that a fair and impartial jury cannot be secured.

 

[6] Actual

prejudice to criminal defendant by pretrial publicity can only be discerned by

reviewing both the extent and nature of the pre-trial publicity and the

responses of the prospective jurors through voir dire.  

 

[7] Motion for

change of venue based on pre-trial publicity and alleged actual prejudice

resulting therefrom was premature where jury panel had yet to undergo voir

dire.

 

[8] A showing

of presumed prejudice is rare, and is reserved for exceptional cases where the

influence of the news media negatively pervades the proceedings, either in the

community or courtroom.

 

[9] Unlike

actual prejudice, presumed prejudice can be proven without voir dire of

potential jurors, but in order to do so, a criminal defendant bears a heavy

burden and must show oversaturation of highly sensationalized news coverage

against him or her.

 

[10] Where

criminal defendants produced six newspaper articles covering events leading up

to their trials for promoting prostitution and also a number of letters to the

editor slanted against them on account of their race, but failed to show any

coverage in the radio or television mediums, Court refused to find presumed

prejudice at pre-trial stage, but would allow defendants to demonstrate actual

prejudice at voir dire phase of trial.

 

[11] Change of

venue is an unsuitable remedy to address jury prejudice in American Samoa.  

 

[12] A.S.C.A. §

46.0601 is not directed to changes of venue based on potential jury prejudice,

but applies in circumstances where it would be more convenient for the court to

sit elsewhere.

 

[13] A change

of venue is not constitutionally required so long as the court assures a fair

trial.

 

[14] Where

issue of tainted jury was raised, pre-trial, before court, defense attorneys

were allowed opportunity to submit questionnaires, in advance of trial, so that

issue of juror prejudice could be thoroughly addressed.   

 

Before

KRUSE, Chief Justice, LOGOAI, Chief Associate Judge, and SAGAPOLUTELE,

Associate Judge.

 

Counsel: For Plaintiff, Marcellus T.

Uiagalelei, Asst. Attorney General

 For Wei Li Fang, William H. Reardon

 For Sanerivi and Wei

Ki Fang, Sharron I. Rancourt, Asst.

 Public Defender

 

ORDER

DENYING MOTIONS FOR CHANGE OF VENUE

 

We

have consolidated the motions of the three defendants because they each seek

the same relief: a change of venue.  Each

defendant was arrested and charged with various counts of Promoting

Prostitution in the First Degree: Wei Ki Fang, one count; Siituu Sanerivi, six

counts; and Wei Li Fang, nine counts plus one count of assault in the second

degree.  The defendants argue that the

pre-trial publicity has been massive, pervasive, and prejudicial.  Also, because both Wei Ki and Wei Li Fang are

Chinese nationals—though Sanerivi was born in Western Samoa—counsel for Wei Ki

Fang submits that the publicity is the product of bigotry from a “culture which

admits but never really accepts people who are not born here.”  On these grounds they all seek a change of

venue.

 

Discussion

 

I.

Pre-trial Publicity

 

[1-2]

“A fair trial in a fair tribunal is a basic requirement of due process.”  Irvin v. Dowd, 366 U.S. 717, 722

(1961) (quoting In re Murchison, 349 U.S. 133, 136 (1955)); see

generally Am. Samoa Rev. Const.,

art. I, § 2; U.S. Const., amend.

V.  When the trial is conducted in front

of a jury, due process assures an accused of, inter alia, certain

minimal protections: 1) “a charge fairly made and fairly tried in a public

tribunal free of prejudice, passion, excitement, and tyrannical power,” Sheppard

v. Maxwell, 384 U.S. 333, 350 (1966) (quoting Chambers v. Florida,

309 U.S. 227, 236-37 (1940)); 2) “a panel of impartial, ‘indifferent’ jurors,” Irvin,

366 U.S. at 722; and 3) “the requirement that the jury’s verdict be based on

evidence received in open court, not from outside sources,” Sheppard,

384 U.S. at 351.  See Murphy v.

Florida, 421 U.S. 794 (1975); Rideau v. Louisiana, 373 U.S. 723

(1963).

 

[3-8]

Due process is violated when inflammatory and pervasive publicity taints a jury

pool, resulting in preconceived ideas by often misinformed jurors.  The Supreme Court has established two ways in

which to show such a taint—presumed (or inherent) and actual prejudice.  See Irvin, 366 U.S. at 728 (actual

prejudice); Rideau, 373 U.S. at 723 (presumed (or inherent) prejudice); Nevers

v. Killinger, 169 F.3d 352, 362-63 (6th. Cir. 1999); United States v.

Washington, 813 F. Supp. 269, 272-73 (D. Vt. 1993).  Actual prejudice requires a showing “that it

is reasonably likely that a fair and impartial jury cannot be secured.”  Bell v. Lynbaugh, 663 F. Supp. 405,

417 (E.D. Tex. 1987).  It is “discerned

only by reviewing both the extent and nature of the [pre-trial]

publicity and the responses of the prospective jurors in voir dire.”

 Nevers, 169 F.3d at 362 (citing Irvin,

366 U.S. at 725-28) (emphasis in original); see also Am. Samoa Gov’t v. Snow,

26 A.S.R.2d 78, 80 (Trial Div. 1994).  At

this point, such an inquiry is premature, as there has not yet been jury voir

dire.

 

[9-10]

The defendants are left then with the highly difficult task of showing that the

publicity up until now has created an atmosphere of presumed prejudice.  A showing of presumed prejudice “is rare, and

is reserved for exceptional cases where the influence of the news media

negatively pervades the proceedings, either in the community or

courtroom.”  Washington, 813 F.

Supp at 272; United States v. Moreno, 815 F.2d 725, 731-39 (1st Cir.

1987); Coleman v. Kemp, 778 F.2d 1487, 1490 (11th Cir. 1985).  It can be proven without the benefit of juror

interviews because the atmosphere created belies any claim of

impartiality.  See Rideau, 373

U.S. at 727; Moreno, 815 F.2d at 753 (Torruella, J., dissenting); Coleman,

778 F.2d at 1543; Washington, 813 F. Supp. at 272-73.  But the defendants carry a heavy burden of

showing oversaturation of highly sensationalized news coverage.  See Coleman, 778 F.2d at 1490; Commonwealth

v. Drumheller, 808 A.2d 893, 902 (Pa. 2002).[1]

 

[10]

Applying these standards, and based on the paltry evidence before us,

defendants have not presented a compelling case of prejudice.  To begin with, they cite only newspaper

articles and editorials.  There is no

evidence whatsoever of prejudiced radio or television coverage or public

sentiment generally.  But see Rideau,

373 U.S. at 723; Coleman, 778 F.2d at 1487.  Furthermore, the newspaper articles, while

prone to hyperbole, are not inflammatory. 

Granted, some of the headlines describe the defendants of a

“prostitution ring” or “sex ring.”  But,

the articles make an effort to point out that the defendants have not been

found guilty; rather, they are alleged to have committed the

crimes.  In fact, most of the articles

contain an attempt to reproduce testimony and arguments from court, heard in a

public forum open to all.  That is, they

contain information that an average citizen would be privy to were he to go to

court himself.  Finally, the defendants

reproduced only six articles, a far cry from the type of overwhelming

saturation which can lead to a presumption of prejudice.  See Coleman, 778 F.2d at 1491-1537.

 

The

letters to the editor, on the other hand, are more opinionated.  They do contain conclusory, matter-of-fact

pronouncements of guilt.  Some are indeed

embarrassingly slanted against the defendants on account of their race.  We refuse, however, to find that a few rogue

letters to the editor represent the beliefs of an entire society.  But see Coleman, 778 F.2d at

1491-1537.  These few letters do not

represent a society scornful of outsiders, as counsel Reardon would have us

believe.  Instead, by attempting to

influence the public, these letters affirm that race-based accusations lack

merit and credence.

 

One

might question why a newspaper would choose to publish such letters in the

first place.  Perhaps they believe that

such a tabloid styled format is profitable. 

Or, perhaps they have a policy of publishing all letters, regardless of

content.[2]  In either event, the airing of narrow-minded,

prejudiced opinions is protected in our society precisely because it exposes

the absurdity and weaknesses of the speaker’s views.  But by protecting this type of speech, we

need not sweepingly attribute it to all. 

We need only recognize it represents a very limited section of society.

 

Finally,

we note that if we were to make any finding of prejudice, it is more likely to

follow the opportunity to listen to potential jurors.  See, e.g., Washington, 813 F.

Supp. at 273; Drumheller, 808 A.2d at 903.  Only then can we meaningfully gauge the

public’s sentiment.

 

II.

Remedies

 

The

defendants have asked that if we find no prejudice at this juncture, that we

revisit the motion once again after voir dire.  Thus, while we need not now decide the proper

remedy were we to find prejudice, the possibility remains.  We note then that were a showing of prejudice

to be made, the remedy would not be a change of venue.

 

[11]

A change of venue is a common remedy stateside, but is unsuitable here in

American Samoa.  See Moreno, 815

F.2d 725; cf. In re San Juan Star Co., 662 F.2d 108, 117 (1981) (finding

that change of venue unsuitable in Puerto Rico and alternative remedies

appropriate).  A change of venue

stateside is sought in the hopes that moving the trial out of the jurisdiction

where the prejudice has tainted the jury pool will result in a neutral jury

elsewhere.  See Irvin, 366 U.S. at

719-21.  This is but a pipe dream here in

American Samoa.

 

It

is no secret that our island community is small.  We have but one jury roll.  All the registered voters on the island are

part of that roll.  Transferring a case

to another part of the islands would only result in a physical change of venue;

but, inherently, the proceedings would be the same.  The jury would be selected from the same

pool.  Furthermore, because of the

compact social structure of this island community, chances are that if the

media has created a prejudicial environment it will have infected the farthest

corners of the Territory.  If anything,

moving a criminal case would likely cause a great inconvenience to all the

parties, including the Court.

 

[12]

Defendants cite A.S.C.A. § 46.0601 to support the notion that a transfer is

possible.  This enactment reads:

 

In

any case where the interest of justice or the convenience of parties, witnesses

or the court requires, the Chief Justice or the Associate Justice may order

that a session of any division of the High Court adjourn from the courthouse to

sit at any appropriate place in American Samoa.

 

This

statute, however, was enacted in 1969 (P.L. 11-54) long before criminal jury

trials in American Samoa were found to be neither “impractical nor anomalous,”

and, therefore, constitutionally mandated. 

See King v. Andrus, 452 F. Supp. 11, 17 (D.D.C. 1977).  Rather, the statute is geared towards

physically holding court in a more convenient location in the Territory; for

example, this power might be invoked in a case involving a dispute in Manu`a,

where the majority of witnesses would be unable to attend a court session in

Fagatogo.  But the situation would have

to be extreme.  Indeed, we cannot recall

any instance where this section has been used in recent times.  The statute simply does not contemplate a

change of venue of the type sought by the defendants.  Compare Fed. R. Crim. P. 21(a) with

A.S.C.A. § 46.0601 and Fed. R. Crim. P. 21(b).

 

[13]

Therefore, if prejudice were ever proven at the preliminary stages of a

criminal prosecution, we would have to explore other alternatives.  See Moreno, 815 F.2d at 731.  A change of venue is not constitutionally

required; instead, we need only assure a fair trial.[3]

 

Order

 

[14]

We accordingly deny the motion for change of venue.  We will, however, allow the defendants to

submit a voir dire questionnaire ahead of time for the court’s review

not later than two weeks before trial. 

The questionnaire should provide the questions in both English and

Samoan.  It may include any inquiries

about media exposure.  The questions

should be amenable to a yes or no response. 

More importantly, the questions shall not touch on 1) any anticipated

instructions; 2) the verdict to be returned when those questions are based upon

hypothetical facts or situations; 3) substantive arguments of the case; and 4)

data available from jury information sheets. 

Then, based upon the answers, during voir dire, we will

take appropriate steps in establishing whether any of the jurors has been

prejudiced including individual voir dire if necessary.

 

It

is so ordered.

 

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