Saturday, August 12, 2006


The Albuquerque Journal for Friday, August 11, 2006, has a story about the scheduled retrial of former State Treasurer Robert Vigil. Defense attorney Sam Bregman has filed a motion seeking a change of venue to another district. The State of New Mexico is one federal judicial district, so a venue change would involve a trial of the case out of New Mexico. The principal basis of the motion is that publicity about the case and the first trial (mistrial for jury disagreement, or "hung jury") has been so extensive, detailed and harmful to the case of the accused, that the Judge cannot find a fair and impartial jury in New Mexico, and that Vigil will be denied his constitutional right to a jury trial.

Questionaires were sent out by the Court to the prospective jurors, and according to the returns, 73% had seen media reports about Vigil's case, more than 33% had formed an opinion about the case, and almost all of the opinions were that Vigil was guilty.

The rule of law is that for a prospective juror to be disqualified as biased or prejudiced by pretrial publicity, she must be unable to set aside what she read or heard about the case, and try the case on the evidence presented in the courtroom. To put it another way, a prospective juror may have heard or read about the case, and may even have formed an opinion as to guilt or innocence, and may even have expressed such an opinion, and still be qualified to sit as a juror. The Judge must determine that such a juror has the ability and honest intention of setting aside that preconceived opinion, and seting aside what she has read and heard about the case, and base her verdict on the law as the Judge tells her the law, and the evidence that she has seen and heard in the courtroom.

In most cases pretrial publicity means little, and does not disqualify the hearer or reader. An important exception is the case of pretrial publicity regarding a confession or other critical evidence which has been suppressed. In such cases the Judge's job is much more difficult. If the Judge knows that the highly prejudicial evidence referred to in pretrial publicity will be admitted into evidence in the government's case, the job of the Judge is less difficult. The prospective jurors are under oath when questioned on this subject ("voir dire"), and in most cases the law assumes that the one questioned speaks the truth when she states that she can and will set aside her biases and prejudices and preconceived opinions.