On Appeal from the United States District Court for the District Court of New Jersey (D.C. No. 3-05-cv-04858) District Judge: Honorable Anne E. Thompson.
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Before: SLOVITER and HARDIMAN, Circuit Judges, and POLLAK*fn1, District Judge
Before and during his state court trial for capital murder, Ambrose Harris was the subject of numerous inflammatory articles in two local newspapers, the Trentonian and the Trenton Times. Ultimately, the court presumed prejudicial pretrial publicity. Harris moved for a change of venue or, in the alternative, for a jury from another county (a "foreign jury"). The trial court adopted the alternative proposal. Harris, who was convicted and unsuccessful in his state court appeal, filed a petition for a writ of habeas corpus in the federal district court claiming that the denial of his motion to transfer venue deprived him of his constitutional right to a fair trial. Harris appeals the District Court's denial of his petition for a writ of habeas corpus.
Harris was indicted in June 1994 for having murdered Kristin Huggins.*fn2 Due to the pervasive publicity surrounding the murder and his arrest, Harris moved the trial court to transfer his case from Mercer County, New Jersey, where the crime was committed, to a different venue or, in the alternative, for the impanelment of a foreign jury. More specifically, Harris argued that "a fair trial [could not] be had in Mercer County" because of highly prejudicial pre-trial media coverage by two newspapers -- the Trentonian and the Trenton Times -- which had a combined circulation in Mercer County of about 130,000. App at 59.
The trial court agreed with Harris that the "likelihood" that the "taint" from these sources would "permeat[e] the trial [could not] be ignored." App at 60. The trial court took particular note that the "intensity of [the] newspaper coverage [was] complicated by the vengeance-seeking crusade of the Trentonian" which generated a "stream of invective" that was "constant and prolonged and sensationalized," App at 60, and which "pander[ed] to its readers' worst instincts," App at 59.*fn3
Therefore, although the trial court denied Harris's motion for a change of venue, it granted his motion to impanel a foreign jury.
Harris filed an interlocutory appeal to challenge the trial court's decision to impanel a jury from Hunterdon County, and the State cross-appealed the trial court's decision to impanel a foreign jury in the first instance, arguing that it was unnecessary.
The Superior Court of New Jersey, Appellate Division, held that "the trial court did not abuse its discretion in concluding" that "prejudice [in Mercer County] may be presumed due to pretrial publicity," and affirmed the trial court's decision "that th[e] case should be tried before a foreign jury." State v. Harris, 660 A.2d 539, 541-42 (N.J. Super. Ct. App. Div. 1995) (Harris I). However, the Appellate Division also held that the trial court should have considered whether the racial demographics of the county from which it would draw the new jury pool were comparable to the racial demographics of the community in which the crime was committed, and further found that the trial court had abused its discretion in selecting Hunterdon County as the source of the jury pool because the racial demographics of Hunterdon County differed markedly from those of Mercer County. Id. at 544-45. It then remanded for further proceedings. Id. at 545.
On remand, the trial judge decided to impanel jurors from Burlington County, a county contiguous to Mercer County, where the racial demographics generally matched those of Mercer County, and where the combined readership of the Trentonian and the Trenton Times was only around 22,000, divided fairly evenly between the two. See State v. Harris, 716 A.2d 458, 471-72 (N.J. 1998) (Harris II). The jury voir dire was conducted in Burlington County. During jury selection, Harris moved the trial court to change venue from Mercer County to Burlington County. In support of this motion, Harris submitted evidence that, among other things, the Trentonian was sold at sites near the Mercer courthouse. The trial court denied Harris's motion. Instead, each day of trial the jurors were ...