Opinion
Case No. 03-40142-JAR.
June 30, 2004
MEMORANDUM AND ORDER DENYING CHANGE OF VENUE
Defendants Douglas Lake and David Wittig move for a change of venue (Docs. 57 60), pursuant to Fed.R.Crim.P. 21(a). The parties have thoroughly briefed the issues and an evidentiary hearing was held May 11, 2004, at which time the Court took the matter under advisement. After reviewing the briefs and the evidence presented, the Court is prepared to rule.
Defendants contend that quantitatively and qualitatively, media coverage of this case, Wittig's prior criminal case and Westar Energy, has fostered or resulted in ingrained and entrenched, "severe, widespread, and persistent community prejudice" against them, impairing in the district of Kansas, their Constitutional right to trial by a fair and impartial jury. Based on surveys of the potential venire in the Topeka and Kansas City divisions of the Court, and building on surveys and expert testimony offered in Wittig's prior case in this Court, defendants ask the Court to find that the degree and nature of prejudice against them warrants a change of venue, rather than the intra-district transfer that the government suggests. This Court ordered an intra-district transfer of Wittig's prior trial, because there was relatively less recognition and prejudice among those surveyed in the Kansas City division, than in the Topeka division.
United States v. Wittig, 02-40140-02.
Although the evidence demonstrates that recognition and prejudice has grown among those surveyed in the Kansas City division, compared to the Topeka division, the Kansas City division offers a potential venire less tainted by adverse publicity and community prejudice. Although the evidence demonstrates that recognition and prejudice has increased in the Kansas City division, the evidence also demonstrates that there is a sufficient population in the Kansas City division that has little or no recognition of these defendants, allegations, and related matters. An intra-district transfer to the Kansas City division, 60 miles from Topeka, remains a viable and effective way of complying with the Constitutional mandate that the defendants' case be tried to a fair and impartial jury. An intra-district transfer, coupled with juror questionnaires and individualized, sequestered voir dire of all jurors, satisfies Constitutional requirements. If the process of voir dire reveals actual prejudice impairing the right to a fair trial, the Court can at that time entertain renewed motions to change venue.
BACKGROUND
Based on the evidence admitted at the May 11, 2004 hearing on these motions for change of venue, and at the defendants' request, incorporating the evidentiary record from the hearing on the motion for intra-district transfer in defendant Wittig's prior bank fraud case, the Court makes the following findings.
The Court admitted Defendant Wittig's exhibits of media coverage since May 2003, including Exhibit 10, a Summary and Pattern of Media Coverage.
See United States v. Wittig, 02-40140. Evidence of the media coverage and scrutiny of all matters related to defendant Wittig and Westar between late 2002 and June 2003, when the bank fraud trial commenced, was admitted in the hearing on Wittig's motions for Intra-District Transfer and Change of Venue, filed on January 21, 2003 and June 30, 2003, respectively. At defendants' request, copies of those motions, supporting memoranda, as well as the voluminous exhibits, are incorporated into this record by reference. Alternatively, as defendant Wittig requests, the Court takes judicial notice of the exhibits admitted in case no. 02-40140. See United States v. Holder, 399 F. Supp. 220, 227 (D.S.D. 1975)[the court may take judicial notice of material submitted in support of a change of venue in an earlier case involving the same defendant.]
Since 2000, there has been extensive print, television and radio coverage of matters concerning Western Resources/Westar Energy ("Westar") and the defendants, who are former officers of Westar. Beginning in 2000, there was media coverage of the financial troubles of Westar and allegations of misfeasance and malfeasance by Wittig, Lake and other Westar executives, in their management of Westar. Media coverage continued in 2001-2004, including reports concerning: complaints of Westar shareholders; public disfavor of Westar executive compensation packages; complaints from Westar customers about utility rates; Westar's adversarial dealings with the Kansas Corporation Commission; and Westar's unsuccessful business deals. One of defendants' experts, Edward Bronson, estimated that there were more than 700 news articles throughout Kansas and nationally, from 2000 to May 15, 2003. Much of the media coverage scrutinized the actions and role of Wittig in his capacity as Chairman and CEO of Westar. In 2002 and 2003, Wittig was named one of the "Top Five" news stories by The Topeka Capital-Journal.
In November 2002, defendant Wittig and co-defendant Del Weidner were indicted in this Court for bank fraud, money laundering and forfeiture stemming from a nominee loan Wittig made to bank president Weidner ("bank fraud case"). From November 2002, through the trial and verdict in the summer of 2003, and continuing through the sentencing in February 2004, the bank fraud case received extensive coverage in the Topeka media, and lesser, yet substantial coverage in the Kansas City market.
In fact, from May 15, 2003 to April 14, 2004, there were 403 newspaper items throughout Kansas, including: 142 articles in The Topeka Capital-Journal; 73 articles in The Kansas City Star; 46 articles in the Lawrence Journal-World; 25 articles in the Pittsburgh Morning Sun; and 20 articles in The Kansas City Business Journal. These 403 items included 369 news reports, 23 editorial items, and 13 letters to the editor. In the same time period there were several articles in newspapers with national circulation, including the New York Times, The Washington Post and Wall Street Journal. Defendants' expert, Dr. Ronald Dillehay, testified that there were another 11 articles in the time period from April 14, 2004 to May 15, 2004.
Another Wittig exhibit indicates that there were 402 news items in that time period.
There were also 54 articles in The Wichita Eagle; 19 articles in the Wichita Business Journal; and 10 articles in the Dodge Globe.
There were: 4 articles in the New York Times; 3 articles in The Washington Post; 2 articles in the Atlanta Journal Constitution; and one article each in the Wall Street Journal, Chicago Tribune, Electric Utility Week, and Bloomberg.com.
Because the Court granted defendant Wittig's motion for an intra-district transfer in the bank fraud case, it was tried in the Kansas City division of this Court; and the trial was covered by newspapers and television and radio stations in the Kansas City market. There was daily coverage in the Kansas City and Topeka media throughout the trial, which lasted from June 26, 2003 to July 14, 2003. Coverage in the Topeka media was much more extensive than in Kansas City. As defendant Wittig notes, "[a]lthough the trial was held in the Kansas City Division, it was nevertheless the subject of moment-by-moment news coverage in the Topeka press . . . and regularly-updated accounts in the Kansas City press." The media coverage before and during the trial, focused not only on the charges in the bank fraud case, but also on defendant Wittig's alleged misdeeds at Westar. Defendant Wittig's purported misuse of corporate aircraft and lavish renovation of the corporate office were prominently and repetitively featured; video clips of a Westar plane and the office suite were repeatedly aired on television stations in Kansas City and Topeka. Local Kansas City television personalities claimed that their "investigative" reporting had helped bring Wittig's alleged wrongs to light. Yet, the coverage in Kansas City was never as extensive or as frequent as the coverage in the Topeka market. The Topeka Capital-Journal covered the testimony of every trial witness, and profiled the defendants, their counsel, the prosecutor, and the judge.
As defendant Wittig notes, "[e]very stage of the Wittig-Weidner bank fraud case received front-page coverage in the press. The indictment, arraignment, and pre-trial proceedings leading up to the Motion for Intra-District Transfer were exhaustively covered. . . . The Court's decision to move the trial from Topeka to Kansas City was also highlighted."
As defendant Wittig acknowledges, after the jury verdict on July 14, 2003, "the stream of press reports about Mr. Wittig lessened somewhat in the summer and fall of 2003." During this period, coverage in Topeka was more frequent and extensive than coverage in Kansas City and often concerned the anticipated sentences that defendant Wittig and his co-defendant would receive. This coverage included news reports, editorial commentary and correspondence. After defendant Wittig was sentenced in February 2004, there was media coverage of the post-trial motions and the filing of appeals. There was also media coverage in the Topeka and Kansas City markets, as well as some national coverage, of this Court's April 5, 2004 ex parte pre-conviction restraining order of assets subject to forfeiture in this indictment.
Media coverage of the bank fraud trial overlapped with coverage of civil and arbitration proceedings concerning Westar, Wittig and Lake. In May 2003, just one month before the bank fraud trial commenced, there was issuance of the 366 page Westar Energy, Inc. Report of the Special Committee to the Board of Directors, detailing alleged acts of misfeasance and/or malfeasance by defendants Wittig and Lake and other corporate officers. In June 2003, the same month that the bank fraud trial commenced, Westar filed a civil arbitration proceeding against defendants Wittig and Lake, seeking recoupment of compensation and benefits paid to them during their tenure at Westar. Defendants Wittig and Lake filed counterclaims in February 2004, the month that Wittig was sentenced in the bank fraud case.
Westar reported the filing of the arbitration proceeding in an SEC filing, which it then posted on Westar's website. This had the effect of publicizing a matter that otherwise, under applicable AAA rules, was confidential. In response, the arbitration panel directed Westar to post the counter-claims on its website as well. Once the claim and counterclaim were available on the internet, the arbitration proceedings were reported in the press, including The Kansas City Star, The Topeka Capital-Journal, The Wichita Eagle, The Kansas City Business Journal and Wichita Business Journal.
Coverage of the February 26, 2004 sentencing and post-conviction matters in the bank fraud case also overlapped with coverage of the December 4, 2003 indictment in this case. The filing of the indictment in this case resulted in, as defendant Wittig characterizes it, "a torrent of news reports . . . throughout Kansas." Since then, the most ordinary and routine filings have been reported by the media, including: defendants' initial appearance and bond hearing in December 2003; their motions in January 2004 for continuance of trial and designation of this as a complex case; and an order continuing the trial to September 2004. Even the filing of the ex parte restraining order, under temporary seal pending service, was reported, along with the press's inexplicable, unprecedented and unsuccessful challenge of such routine filings.
Exhibit 3 is a "Media Log" that contains copies of relevant articles published in Kansas and in certain national news outlets from January 2003, when the first of two venue motions were filed in the bank fraud case. It also includes three video tape cassettes containing television broadcasts concerning Wittig.
See C-J Requests Records Be Open, THE TOPEKA CAPITAL-JOURNAL, Mar. 12, 2004.
Consistent with coverage of the bank fraud trial and matters related to Westar, coverage of this case in the Topeka media market was more frequent and extensive than coverage in Kansas City. One of defendant Wittig's experts in the bank fraud trial noted that not only was the raw number of articles in Kansas City fewer than in Topeka, the tone of the media coverage in Kansas City was less prejudicial than in Topeka. Much of the media coverage in Topeka is decidedly negative in tone, particularly when directed at or concerning the conduct of defendant Wittig, defendant Lake and other corporate officers. Highly and simply summarized, the primary themes of the coverage have been 1) the financial struggles of Westar, attributable to the misfeasance and malfeasance of its corporate officers, including Lake, and most particularly, attributable to the alleged excess and greed of defendant Wittig, Westar's former CEO; and 2) Westar's positive future outlook now that Wittig is no longer at its helm. The indictment in this case characterizes defendant Wittig and defendant Lake's conduct as "systematically looting" Westar, a characterization that has been repeatedly asserted in the media coverage.
Survey conducted in bank fraud case
In the bank fraud case, defendant Wittig's experts conducted a survey of the potential venire in the Topeka and Kansas City divisions of this Court. The survey included only those Kansas residents qualified to receive a jury summons from the lists used to generate the Federal master jury wheel. The total population of the counties in the Kansas City division is 755,817, exceeding the total population of the counties in the Topeka division, 545,636 by more than 200,000.
Although not germane to this motion, the Court notes that the survey in the bank fraud case also included the potential venire in the Wichita division.
Thus only Kansas residents, 18 years or older, with a primary residence in a county within the three divisions, and registered to vote, were interviewed. Residents currently serving jury duty or on notice for jury duty were disqualified from the survey.
Atchison, Doniphan, Franklin, Johnson, Leavenworth, Miami, and Wyandotte.
Brown, Chase, Clay, Dickinson, Douglas, Geary, Jackson, Jefferson, Lyon, Marshall, Morris, Nemaha, Osage, Pottawatomie, Riley, Shawnee, Wabaunsee and Washington.
These figures are adjusted to include the population of Douglas County in the Topeka division; the survey erroneously included Douglas County in the Kansas City division.
In the survey, 485 persons from the Topeka division and 501 from the Kansas City division were interviewed. The survey purported to measure recognition of and prejudice against defendant Wittig and his co-defendant as of January 2003. Recognition was determined by asking respondents one or more recognition questions. The first recognition question, asked of all respondents, was:
Now, I am going to ask you about some people that you may or may not recognize. Please tell me if you recognize the name David Wittig? . . . Do you recognize the name Clinton Odell Weidner, commonly known as "Dell" Weidner?
In the Topeka division, 54.9% of respondents and in the Kansas City division, 16% of the respondents answered yes. Because they indicated recognition, they were asked no further recognition questions. But those who responded no to this first recognition question were asked a second question:
Of the two men charged, David Wittig served as chairman and CEO of Westar Energy, the State's largest utility, and "Dell" Weidner served as President of Topeka's Capital City Bank. Do you recognize the case?
This second recognition question triggered an affirmative response in 21.2 % of the remaining respondents in the Topeka division and 19.8% of the remaining respondents in the Kansas City division. Those who responded no to the second recognition question were asked a third and final recognition question:
In this case, news reports have alleged that the two men concealed the purpose of a 1.5 million dollar loan used to invest in an Arizona real estate development. Have your [sic] read, seen, or heard about the case?
This third recognition question triggered an affirmative response in 2.7% of the remaining respondents in the Topeka division and 2.9% of the remaining respondents in the Kansas City division. By answering yes to one of the three questions, 78.8% of the respondents in the Topeka division and 38.7% of the respondents in the Kansas City division reported some recognition of Wittig, the bank fraud case or matters concerning Westar.
Those respondents who indicated some recognition were then asked about their attitudes, beliefs and prejudices toward the defendants. The surveyors tested for prejudice by asking questions about the respondent's perception of having been harmed by Westar's management, or the respondent's perception that defendant Wittig was guilty of a crime. Of those reporting some recognition, 66.8% in the Topeka division and 46.9% in the Kansas City division stated that they believed that defendant Wittig was definitely or probably guilty. This translates into 44.8% of all respondents in the Topeka division perceived that defendant Wittig was guilty and 36.1% perceived that they had been harmed by Westar. In the Kansas City division, 18.2% of all respondents perceived that defendant Wittig was guilty and 15.6% perceived that they had been harmed by Westar.
The Court disagrees with the analysis of expert witness Biedecker that those respondents who indicated that they were unsure, had no opinion, or refused to answer the question, are prejudiced. Thus, the Court's analysis reflects a modification of the survey results, to exclude those refusing to answer or those answering that they are unsure or have no opinion from those who are prejudiced. This modification did not significantly change the results nor the comparison of the Topeka and Kansas City division populations.
Defendant Wittig's experts in the bank fraud case testified that there was significantly more recognition and prejudice in Topeka than in Kansas City because of the higher "salient factor" or community interest in the Topeka area. One expert explained that there is higher salience in the Topeka division because there are more Westar ratepayers, thus more people who perceive that they have a direct and personal interest in Westar.
The survey revealed that in the Topeka division, 350 of the 485 respondents reported that their utility company is Westar; while in the Kansas City division, only 171 of the 501 respondents reported that their utility company is Westar.
The survey confirmed that Westar ratepayers in both divisions had a higher rate of recognition and prejudice than those who are not Westar customers. In the Topeka division, only 15% of Westar customers had no recognition of the matters; while 37% of non-customers of Westar had no recognition. In the Kansas City division, 43% of Westar customers had no recognition of the matters; while 67% of non-customers of Westar had no recognition.
The experts further opined that the higher salience has a causal relationship to the degree of prejudice. Not surprisingly, the survey revealed a higher degree of prejudice among Westar ratepayers. Among Westar ratepayers, 46.8% in the Topeka division and 30.5% in the Kansas City division perceived that defendant Wittig was guilty; while among those who are not Westar customers, 39.3% in the Topeka division and 14.2% in the Kansas City division perceived that defendant Wittig was guilty.
The Court's Prior Order Granting Intra-district Transfer
This Court granted defendant Wittig's motion for intra-district transfer of the bank fraud case, and held the trial in the Kansas City division. The Court specifically found that the majority of people eligible for jury service in the Kansas City division are not Westar customers, did not recognize the case, defendants or other matters, and were not laboring with the perception of a personal interest or stake in the case. The Court found that there was not a statistically significant degree of "prejudice" as defined by the experts in the case. The Court concluded that an intra-district transfer, coupled with a juror questionnaire and some individualized voir dire would ensure that twelve fair and impartial jurors could be selected.
Voir Dire Results in Bank Fraud Case
Shortly before the commencement of the bank fraud case, defendant Wittig filed a motion for change of venue, which the Court denied. Prior to trial, the Court had sent out over 130 juror questionnaires; approximately 120 persons were sworn in as the venire. Early in the voir dire process, the Court identified potential jurors who indicated recognition by a show of hands. Approximately 31 persons indicated that they had some recognition; and the Court and counsel examined these 31 persons with individualized, sequestered voir dire, out of the hearing of the other members of the venire. This individualized voir dire was conducted in a small room adjoining the courtroom, where the potential juror was seated within six to eight feet of the defendants. Despite these close quarters, people made direct, at times caustic, comments about their opinions, attitudes and beliefs about defendant Wittig and his co-defendant, or about corporate malfeasance in general.
Of these 31 persons: five indicated extensive knowledge of the case; two expressed some knowledge of the case; eight recalled hearing something about the case just after learning they might be jurors, but could not recall specifics; and 16 indicated they had no knowledge of the bank fraud case, specifically. Of the 31 persons, seven were excused for cause, including: three persons who indicated that they were concerned about their ability to set aside bias they had formed about the case; one person who had a Westar shareholder in the family; one person who was a stockbroker with substantial training in money-laundering and expressed concern about separating her training from the Court's instructions; one person who resided in Lawrence and was a Westar customer; and one person who knew Wittig professionally. The experience of voir dire in the bank fraud case was one of honest, open and frank responses by those who were individually questioned.
Voir dire in the bank fraud case also demonstrated that there were a significant number of potential jurors who had no recognition of defendant Wittig, his co-defendant, the bank fraud case, Westar, nor any of the matters related to the instant case. Voir dire was concluded in merely a day and a half. After the first day, given the relatively few challenges for cause, the Court excused approximately 60 of the 120 persons in the venire, finding no need for them to return for the second day of voir dire.
Survey conducted in this case
In this case, defendants' experts conducted a survey of the potential venire in the Topeka and Kansas City divisions, as well as in the Denver division of the United States District Court for the District of Colorado. Like the survey conducted in the bank fraud case, the experts first attempted to identify those who recognized the case, the defendants, or Westar, then attempted to determine if those with recognition demonstrated prejudice. The survey was conducted March 8-22, 2004, less than one month after sentencing in the bank fraud case and during the time of media coverage of a pending motion for release on appeal, as well as ongoing coverage of events in the civil Westar litigation and arbitration proceedings.
The experts employed a three question strategy to identify those with recognition of this case or these defendants. Yet the substance of the recognition questions in this survey was quite different from the recognition questions used in the prior bank fraud case survey. Instead of initially screening for recognition of the defendants' names, the first recognition question in this survey read:
Now I have some questions about a specific case. In December of last year a federal grand jury in Topeka [add "Kansas" for CO] charged two men who were executives of Westar Energy, the largest public utility in the state, with 40 different criminal charges. The men are David Wittig and Douglas Lake. They are accused of systematically looting Westar Energy and committing a number of other crimes connected to the company. Do you recognize this case? [emphasis supplied]
This question received affirmative responses from 88% in the Topeka division; 67.6% in the Kansas City division; and 8.5% in the Denver area. Respondents who answered no to this first question were asked a second recognition question. In the prior survey, the second question simply identified defendant Wittig as the CEO of Westar and the co-defendant as president of Capital City Bank. But in this survey, the second recognition question read:
Of the two men charged, David Wittig was the chairman and CEO of the company and Douglas Lake was his vice-president. Some of the charges against them involve using a company plane for private trips. In addition to the criminal charges, the government also wants to get millions of dollars back from them and some of the expensive property they have spent money on — such as a $230,000 Ferrari automobile and the Landon mansion, on which David Wittig allegedly spent $6 million to renovate. Have you read, seen, or heard about this case? [emphasis supplied]
This second question prompted recognition by 16% of the remaining respondents in the Topeka division; 11.9% of the remaining respondents in the Kansas City division; and 7.1% of the remaining respondents in the Denver division. Those who answered no to this second question, were asked a third recognition question:
OK. Among the charges against the two men are the illegal use of a company airplane, falsifying books and records, and submitting false statements, as well as engaging in other unlawful activity. I'm going to ask you about each man.
Quantitative Results
The March 2004 survey reveals that recognition and prejudice, to the extent validly measured by the survey, have increased since the January 2003 survey conducted in the bank fraud case. This is undoubtedly attributable, in whole or in part, to the substantial media coverage of the bank fraud case between January 2003 and March 2004, as well as other matters concerning Westar, defendants Wittig and Lake, and other corporate officers.
The March 2004 survey reveals that 89.9% of potential jurors in the Topeka division and 71.4% of potential jurors in the Kansas City division have some recognition of the Wittig and Lake criminal case. Of those with some recognition, 81.3% in the Topeka division and 68.2% in the Kansas City division view defendant Wittig as definitely or probably guilty; 78% in the Topeka division and 61.7% in the Kansas City division view defendant Lake as definitely or probably guilty. Dr. Dillehay explained that this translates to 73.1% of all potential jurors in the Topeka division and 48.7% of all potential jurors in the Kansas City division demonstrating prejudice, by considering defendant Wittig definitely or probably guilty. It also translates to 70.2% of all potential jurors in the Topeka division and 44.1% of all potential jurors in the Kansas City division demonstrating prejudice by considering defendant Lake definitely or probably guilty.
Consistent with the prior survey's analysis of relative salience in the Topeka and Kansas City divisions, the March 2004 survey revealed that there are far more Westar shareholders and ratepayers in the Topeka division (61.1%) than in the Kansas City division (22%). The survey also revealed that a higher percentage of Topeka division respondents (53.8%) than Kansas City division respondents (32.7%) perceive that they have been harmed by the management of Westar.
The March 2004 survey of the Denver division revealed that only 14.9% of the respondents are aware of this case or the defendants. This is not surprising given that there was no local news coverage of this case, the bank fraud case or Westar. Yet, of the Denver respondents who indicated some recognition, 66.6% believe Wittig to be definitely or probably guilty and 66.7% believe Lake to be definitely or probably guilty, nearly the same rate of prejudice as seen in the Kansas City division respondents who had some recognition of the case or defendants.
Qualitative Results
In the March 2004 survey, respondents who indicated recognition were asked some openended questions about their attitudes and feelings. Respondents primarily expressed negative views of defendants Wittig and Lake, comparing them to Martha Stewart or other "corporate raiders," and mentioning Enron and other corporate debacles. Parroting widely reported language in the indictment, one respondent stated that "public people like that shouldn't be looting public companies because it affects the stockholders and probably the retirees because of pension and things." Some respondents offered their literal or hyperbolic view of appropriate punishment. Some respondents reported or embellished various allegations that defendant Wittig committed corporate misfeasance and malfeasance, abused his fiduciary position, bilked people, abused trust, ran the company "downhill," received a large severance payment, and spent lavish sums on purchasing, remodeling and furnishing the Landon mansion. Other respondents expressed personal hostility towards defendant Wittig, referring to him as selfish or arrogant.
Responses included: they [defendants] should serve 50,000 years; they should serve the maximum; they should serve life in prison, they should lock the jail key and throw it away; they should receive more punishment than Martha Stewart; they should be held accountable, pay restitution and not be able to protect their assets; they should serve seven to ten years, assuming they are guilty; they should do "hard labor on the rock pile" not serve in a "country club prison"; they should serve a hard 40 or hard 50 years; they should be "painted with honey and dropped in a field full with fire ants."
For example, one respondent stated that Wittig took $43 million in separation pay, enough to pay the entire utility bill for every house in Topeka for one winter.
Defendants' expert Dr. Dillehay, did a qualitative, as well as quantitative analysis of media coverage. He testified that media coverage included ten potentially prejudicial "content areas" or themes, including: Wittig's conviction for bank fraud; Wittig's extravagant lifestyle, exorbitant expenditures and personal ambition; other high profile cases involving CEOs; charges and allegations arising from Westar's internal investigation and the indictment in this case; legal proceedings, pleadings and filings in the criminal cases, civil case and arbitration proceeding; political contributions and associations; the costs, plummeting stock value and economic injury to Westar from Wittig and Lake's executive decisions concerning managerial compensation; mergers, spinoffs and unregulated businesses. Another theme Dr. Dillehay found was the media's coverage of the media coverage of these matters and events. Dr. Dillehay testified that he found only eight news items that contained positive, non-prejudicial content.
DISCUSSION
Defendants move for a change of venue pursuant to Rule 21(a) of the Federal Rules of Criminal Procedure. The Constitution guarantees a defendant "a fair trial by a panel of impartial, `indifferent' jurors." "A fair trial in a fair tribunal is a basic requirement of due process." Indeed, "our system of law has always endeavored to prevent even the probability of unfairness." "The standards governing a change of venue ultimately derive from the due process clause of the Fourteenth Amendment which safeguards a defendant's Sixth Amendment right to be tried by `a panel of impartial, indifferent jurors.'"
Fed.R.Crim.P. 21(a) states: "Upon the defendant's motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there."
United States v. Abello-Silva, 948 F.2d 1168, 1176 (10th Cir. 1991) (overruled on other grounds) (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)).
In re Murchison, 349 U.S. 133, 136 (1955).
Id.
Irvin v. Dowd, 366 U.S. at 722.
The Constitutional requirement of impartiality does not limit jury membership to persons completely ignorant of the facts and issues of a case. But jurors must be able to lay aside impressions or opinions shaped by pretrial exposure to the media and render a verdict based solely on the evidence presented during trial. The question the trial court must consider is whether the publicity has given jurors such fixed opinions that they cannot impartially judge the defendant's guilt. In Sheppard v. Maxwell, the Supreme Court described the critical role of an impartial jury, noting:
See Irvin v. Dowd, 366 U.S. 717, 722 (1961).
Murphy v. Florida, 421 U.S. 794, 800 (1975).
Patton v. Yount, 467 U.S. 1025, 1035 (1984).
384 U.S. 333, 349-50 (1966).
[L]egal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper. And the Court has insisted that no one be punished for a crime without a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power.
Id. (internal quotations and citations omitted).
In Sheppard, the Supreme Court further noted the "pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of jurors," such that:
Id. at 362.
[T]rial courts must take strong measures to ensure that the balance is never weighed against the accused. . . . [W]here there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity.
Id. at 362-63.
Pretrial publicity in topical criminal cases is inevitable and only impacts a defendant's rights when it dictates the community's opinion as to guilt or innocence. Pretrial publicity can give rise to a due process violation in two ways: "(1) where prejudice is presumed because the publicity was `sufficiently prejudicial and inflammatory and [it] . . . saturated the community where the trial was held, . . . or [(2)] where the defendant establishes actual prejudice resulting from the publicity."
United States v. Abello-Silva, 948 F.2d at 1176.
United States v. Walker, 890 F. Supp. 954, 959 (D. Kan. 1995) (citing United States v. Awan, 966 F.2d 1415, 1427 (11th Cir. 1992).
The court has considerable discretion in passing on motions under Rule 21(a). The defendant has the burden of establishing the presumption of prejudice and it is only invoked in extreme situations. In determining whether presumptive prejudice exists, the court must consider the totality of the circumstances, "including the type of pretrial publicity, the time lapse between peak publicity and the trial, and the credibility of prospective jurors who indicate during voir dire that they could be impartial despite having been exposed to pretrial publicity about the case."
United States v. Neal, 718 F.2d 1505, 1510 (10th Cir. 1983), cert. denied 469 U.S. 818 (1984) (citations omitted).
United States v. Walker, 890 F. Supp. at 959 (citations omitted).
Id. (quoting United States v. Lehder-Rivas, 955 F.2d 1510, 1524 (11th Cir.), cert. denied sub nom., 506 U.S. 924 (1992)).
In this case, there has been substantial pretrial publicity in the Topeka division, and to a lesser extent in the Kansas City division. From 2000 to late 2002, much of the media coverage focused on Westar, defendant Wittig and other Westar executives, including defendant Lake. From 2002 to 2004, much of the media coverage focused on defendant Wittig and the bank fraud case; but during that time frame, there was also substantial media coverage of matters relating to this case, as well as civil and arbitration proceedings concerning management and financial troubles of Westar. Because the survey in this case was conducted in March 2004, the degree of media coverage as of the date of this order is not in the record, but the record does establish that there continues to be less coverage in the Kansas City division than in the Topeka division.
Another relevant consideration in determining presumptive prejudice is the nature of the coverage; is it factual, or editorial in tone and substance. Although the vast majority of documented news items in this case are factual, it is clear that even in these factual accounts, there is the use of emotionally charged language and reiterations of certain inflammatory subjects, including exorbitant spending on luxury items, plummeting stock prices, systematic looting of Westar, and comparisons with other high profile corporate fraud cases.
Yet, the coverage in this case does not approach the emotional tone and tenor of coverage in cases where presumptive prejudice was found. For example, in United States v. Tokars, defendant was a former assistant district attorney and criminal defense attorney who was facing charges of having arranged for the murder of his wife. The court inferred in that case that a widespread bias existed based on a saturation of inflammatory pretrial publicity, which included a significant number of satirical articles and a song broadcast on a local radio station "which "assume[d] awareness and acceptance of Mr. Tokars' guilt." Moreover, unlike the March 2004 survey in this case, in Tokars, the survey measured the degree of the respondent's recognition of the case, finding that 86% had heard "a great deal" or "a fair amount" about a state case involving the defendant, and that an overwhelming percentage of them indicated a perception that the defendant was guilty. In this case, because of the suggestive nature of the recognition questions in the March 2004 survey, it is impossible to ascertain whether respondents had minimal or great familiarity with the case, defendants and other associated matters. Although respondents were later asked open ended questions, their responses shed little light on the extent of their familiarity independent of the information provided to them in the recognition questions.
839 F. Supp. 1578, 1581-84 (N.D. Ga. 1993), aff'd, 95 F.3d 1520 (11th Cir. 1996), cert. denied 520 U.S. 1151 (1997).
Tokars, 839 F. Supp. at 1581-84.
The survey demonstrates that people often have inaccurate information or faulty memory. For example 31% of respondents in the Kansas City division who were deemed to have recognition knew of defendant Wittig's other conviction, but 50% thought the charges were related and only 18% were aware that he had been sentenced.
In United States v. Abrahams, the court found presumptive prejudice where the defendant had been extensively vilified in voluminous newspaper articles in a community where there was substantial local interest in the defendants and their affiliation with a prominent brokerage firm. Defendant had been the subject of a magazine article that named him "Turkey of the Year" and was illustrated by what appeared to be a United States Marshals Office mugshot. In fact, the community interest and salience described in Abrahams, sounds much like the Topeka community's local interest in this case and other matters pertaining to Westar. But the extent of coverage and the degree of salience in the Kansas City division are demonstrably less than in Topeka. Defendants have failed to establish presumptive prejudice in the Kansas City division. And absent a showing of actual prejudice, the Court appropriately waits until voir dire to determine whether there is actual prejudice precluding a fair and impartial trial.
466 F. Supp. 552, 556-58 (D. Mass. 1978).
See United States v. Fastow, 292 F. Supp.2d 914, 919 (S.D. Tex. 2003) (denying change of venue for defendant in Enron case, holding that issues regarding the media coverage of her case and possible community prejudice can be dealt with during jury selection with a questionnaire and voir dire). See also 2 Wright Miller, Fed. Prac. Proc. Crim.3d § 342; United States v. Lamb, 575 F.2d 1310, 1315 (10th Cir.), cert. denied 439 U.S. 854 (1978) (the proper occasion for determining juror partiality is upon voir dire examination); United States v. Gressett, 773 F. Supp. 270, 277 (D. Kan. 1991) (same).
Although defendants argue that the degree of recognition and prejudice in the Kansas City division approximates the degree of recognition and prejudice in the Topeka division prior to the bank fraud trial, the defendants misconstrue the Court's basis for transferring the bank fraud trial to the Kansas City division. The Court did not find that defendant Wittig and his co-defendant could not receive a fair and impartial trial in Topeka, nor did it hold that the prior survey results "mandated" a transfer to Kansas City. Rather, the Court exercised its discretion to order an intra-district transfer, based on the markedly lesser recognition, prejudice and salience in the Kansas City division as compared with the Topeka division. As the Court made clear at the May 11, 2004 hearing, it rejects defendants' attempt to inaccurately extrapolate its previous order to the March 2004 survey results.
Notably, Weidner, the co-defendant in the bank fraud case unsuccessfully moved to have the cases effectively severed so that he could be tried in Topeka.
Even assuming the March 2004 survey accurately determined the potential venire's recognition of these defendants and this case, there is still markedly less recognition in the Kansas City division. In the Topeka division, 89.9% recognize this case, compared to 71.4% in the Kansas City division. But the Court finds that the survey's flawed methodology renders suspect its measure of recognition and prejudice. A comparison of the recognition questions in the March 2004 survey and the prior survey highlights the questionable integrity of the questions. In the bank fraud case survey, recognition was ascertained by first asking if the respondents recognized defendant Wittig and his co-defendant by name, then by asking if they recognized them by their titles, chairman and CEO of Westar and President of Capital City Bank. For the few who indicated no recognition of names or titles, the survey provided more detail about the allegations in the indictment, concealment of the purpose of a $1.5 million loan used to invest in Arizona real estate. The objective tone and substance of even this third question stands in stark contrast to the prejudicial tone and substance of the three recognition questions asked in the current survey.
The first question prompted recognition of approximately 54.9% in Topeka and 16% in Kansas City; the second question prompted recognition by approximately 21.2% of the remaining 45.1% of Topeka respondents and 19.8% of the remaining 84% of Kansas City respondents.
Most of those indicating recognition in Topeka (89.9%) responded affirmatively to the first recognition question (88%). But in the Kansas City division, only 67.6% responded affirmatively to the first recognition question, despite the question being loaded with such inflammatory words as "40 different criminal charges" and "accused of systematically looting Westar." Those 32.4% of Kansas City division respondents who did not indicate recognition in response to the first question, were then asked a second loaded question, which informed them that there was use of a company plane for private trips, expenditure of $6 million on a mansion and $230,000 on a Ferrari. In the Kansas City division, this prompted recognition in 11.9% of the 32.4% who had answered no to the first recognition question. All of this suggests that in the Kansas City division, far more people had to be prompted or coached to recognition, with these loaded, suggestive questions.
These suggestive questions not only may have caused an overstatement of the respondents' recognition, they likely caused an overstatement of their prejudice. The results of the survey in the Denver division further serve to illustrate the inadequacy of the survey's measure of recognition and prejudice. In Denver, where 14.9% the respondents indicated recognition of the defendants or the case, the respondents claimed that their familiarity came from newspaper, television or other media sources. But, there was no local coverage of any of these matters in the Denver press, although there were approximately 13 news items in several newspapers with national circulation. This suggests that the respondents in Denver who claimed familiarity had little or no exposure to these matters. Yet, of the Denver respondents who indicated recognition, 66.6% believed that defendant Wittig was definitely or probably guilty (compared with 81.3% in the Topeka division and 68.2% in the Kansas City division); and 66.7% believed that defendant Lake was definitely or probably guilty (compared with 78% in Topeka and 61.7% in Kansas City). These similar levels of prejudice in Denver, where there was virtually no media coverage suggests either: (1) the loaded, suggestive survey questions prompted respondents to indicate prejudice, and/or (2) in this time of high profile corporate fraud cases, respondents indicate prejudice to any such allegations. As defendant Wittig acknowledges, during the time period of the survey:
American society as a whole began to be inundated with allegations — and, in some cases, admissions — of misconduct at the highest levels of major corporations. Losses of staggering proportions were attributed to "cooking the books" and accounting shenanigans. Corporate executives were featured in "perp walks" on the front pages of the nation's newspapers and as lead stories on the evening news.
Needless to say, to the extent it is this cultural phenomenon that engenders respondents to indicate prejudice, a change of venue to some other district will not be curative.
Finally, even assuming the current survey accurately determined the prejudice of respondents, there still exists markedly less prejudice in the Kansas City division than in the Topeka division. Of those reporting recognition of the case in the Topeka division, 81.3% and 78.0% indicate prejudice against defendants Wittig and Lake, respectively. Of those reporting recognition in the Kansas City division, 68.2% and 61.7% indicate prejudice against defendants Wittig and Lake respectively. Applying the prejudgment factor used by Dr. Dillehay, of all respondents in the Topeka division, with or without recognition, 73.1% are prejudiced against defendant Wittig and 70.2% are prejudiced against defendant Lake. In comparison, in the Kansas City division, 48.7% are prejudiced against defendant Wittig and 44.1% are prejudiced against defendant Lake.
The relatively lower rate of recognition, lesser indication of prejudice and lesser salience in the Kansas City division justify a transfer of the trial to that division. More importantly, given the large population in the Kansas City division, even if the March 2004 survey accurately reflects prejudice, more than half of the potential venire in the Kansas City division is not impaired by prejudice.
The Court concludes that through pretrial juror questionnaires, vigorous individualized and sequestered voir dire of all potential jurors called to the jury box, and the Court's instructions, a body of twelve fair and impartial jurors can be selected. Defendants' experts opine that the voir dire process cannot be trusted, for juror's responses to voir dire questions are inherently unreliable. These experts opine that during voir dire, jurors are concerned with articulating the socially desirable, normative response that they can be fair and impartial. Yet, these experts do not explain why during the deliberative process, jurors would abandon their desire to exhibit conformance with socially desirable, normative behavior. Surely, jurors are influenced by taking an oath, by the judge's instructions, and by the peer pressure of their fellow jurors, to honor their oaths and follow the instructions. Juror deliberations are accomplished communally, with open discussion and debate among jurors. This process serves to encourage socially desirable, normative behavior. It encourages jurors to be fair and impartial. This Court is not persuaded by defendants' experts' view that jurors are influenced by out-of-court experiences and extraneous information, but not affected by their oath, the judge's instructions, or their desire to do what is just and right.
CONCLUSION
Despite the heavy pretrial publicity, much of which has been negative in substance and tone, the Court concludes that among a potential jury division of over 745,000 people in the Kansas City division, 12 people can be selected who will not be tainted by exposure to this pretrial publicity for several reasons. First, the Court has serious reservations that the March 2004 survey accurately reflects the degree of recognition and prejudice. Given the highly suggestive nature of the questions purportedly asked to determine recognition, the Court concludes that it is quite likely that the survey overstates the degree of both the recognition and prejudice.
Second, even if the survey's methodology should cast no doubt on its results, the survey of the potential venire in the Kansas City division reveals that more than 50% of potential jurors do not hold prejudicial attitudes or beliefs, to the extent they have even some minimal degree of recognition of these defendants, this case, or other matters reported in the press concerning defendant Wittig and/or Westar. Given the sizeable population in the Kansas City division, which exceeds the population in the Topeka division by more than 200,000, the Court is convinced that there are a significant number of potential jurors who can serve as fair and impartial triers of the facts. In this case, as in the bank fraud case, potential jurors in the Kansas City division demonstrate relatively less recognition and prejudice than in the Topeka division. As the Court previously found in the bank fraud case, there is much greater salience, or community interest in Topeka, where there are far more Westar ratepayers and stockholders, with a perceived personal stake in these matters.
Finally, given the actual experience of voir dire in the bank fraud case, the Court concludes that the defendants' Constitutional right to trial by a fair and impartial jury can be ensured by: (1) transfer of this case to the Kansas City division; (2) utilization of non-suggestive, comprehensive juror questionnaires; and (3) utilization of individualized, sequestered voir dire of those called to the jury box. Of course, if the voir dire process evidences actual prejudice precluding a trial by a fair and impartial jury, the Court will entertain motions to change venue at that time, for these motions are denied without prejudice.
IT IS THEREFORE ORDERED that Defendants' motions for change of venue (Docs. 57 60) are DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that this case is transferred to the Kansas City division of the United States District Court for the District of Kansas, for trial.
IT IS SO ORDERED.