VIRGINIA:
IN THE CIRCUIT COURT OF PULASKI COUNTY
COMMONWEALTH OF VIRGINIA
v.
ASHLEY JENNIFER WHITE
)
)
)
)
)
Case Nos. CR15.568
CR15.569
CR15.704
MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR CHANGE
OF VENUE
COMES NOW, the Defendant, Ashley Jennifer White, by counsel, and files this
memorandum of law in support of her Motion for Change of Venue.
INTRODUCTION
Section 19.2-251 of the Code of Virginia permits, on motion of the accused or the
Commonwealth, a change of venue when it is necessary to ensure a fair trial. Evans v.
Commonwealth,161 Va. 992, 1003 (1933). When a defendant cannot receive a fair trial in
a vicinage because of adverse publicity, however, the Due Process Clause of the United
States Constitution requires a change of venue. Rideau v. Louisiana, 373 U.S. 723
(1963). The purpose of a change of venue is to accord litigants a fair and impartial trial.
Newcomer v. Commonwealth, 220 Va. 64, 67 (1979). “The theory of our [trial] system is
that the conclusions to be reached in a case will be induced only by evidence and
argument in open court, and not by any outside influence, whether of private talk or
public print.” Patterson v. Colorado ex rel. Attorney General of Colo., 205 U.S. 454, 462,
(1907). Criminal defendants have an especial right to be tried in a forum “free of
prejudice, passion, excitement, and tyrannical power.” Sheppard v. Maxwell, 384 U.S.
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333 (1966).
A motion for change of venue faces the presumption that a defendant can “receive
a fair trial in the jurisdiction where the offense occurred.” Thomas v. Commonwealth, 263
Va. 216, 230 (2002). A defendant can overcome this presumption by establishing that the
feeling of prejudice on the part of the citizenry is widespread and is such that would be
“reasonably certain to prevent a fair trial.” Mueller v. Commonwealth, 244 Va. 386, 398
(1992) (quoting Stockton v. Commonwealth, 227 Va. 124, 137 (1984)).
When considering evidence of community prejudice based on pretrial publicity,
widespread knowledge of the case alone is insufficient to overcome the presumption.
Thomas v. Commonwealth, 263 Va. 216, 230 (2002). A substantial amount of media
coverage will likewise not, in and of itself, support a change of venue if the coverage is
fair and accurate. Id. at 231. However, a substantial amount of news coverage that is
inaccurate, inflammatory, and tends to incite prejudice within the community can
produce a “trial [that] would be deemed inherently lacking in due process.” Id. at 232.“In
addition to the volume of publicity, factors identified as relevant in determining the
impact of pretrial publicity on the defendant’s ability to obtain a fair trial are whether the
publicity is accurate, temperate, and non-inflammatory, and the timing of the publicity.”
Id.
Generally, it will be necessary for a trial court to attempt to seat the jury prior to
ruling on a motion to change venue. Id. Nevertheless, there are circumstances in which
the pretrial publicity “‘involves such a probability that prejudice will result that it is
deemed inherently lacking in due process, and the defendant is not required to establish
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identifiable prejudice.’” Wansley v. Commonwealth, 210 Va. 462, 468-469 (1970)
(quoting Estes v. Texas, 381 U.S. 532, 542-543 (1965)).
Even if an impartial jury is eventually selected, difficulty in selecting that jury can
show that the entire process is infected with so much prejudice that the defendant cannot
receive a fair trial. Thomas, at 232. Indeed, so dangerous is the subconscious and
conscious effect of pervasive pretrial publicity on a potential juror’s mind, that when
pretrial publicity approaches the saturation level, courts must disregard prospective
jurors’ assurances of impartiality and presume prejudice. See Mu'Min v. Virginia, 500
U.S. 415, 429-30 (1991) (recognizing that when pretrial publicity is pervasive within a
community, a “juror’s claims that they can be impartial should not be believed” and voir
dire is an inadequate curative). See also Sheppard, 384 U.S. at 355; Estes, 381 U.S. at
551; Rideau, 373 U.S. at 727; Irvin, 366 U.S. at 722-723.
The defendant, Ashley White, cannot receive a fair trial in Pulaski County due to
the continuous barrage of highly inflammatory media reports that far exceed the standard
of “fair and accurate” coverage. Additionally, the widespread prejudice among Pulaski
County residents, most readily demonstrated on several social media pages, indicates a
community obsessed with the conviction and punishment of Ms. White. The community
has been so “warped by passion or prejudice that there is a danger of the jury being
influenced by the opinions and prejudice of the public, and not entirely and exclusively
by the evidence, in reaching a verdict.” Muscoe v. Commonwealth, 87 Va. 460, 462
(1891). Further, the small size of Pulaski County, combined with the circumstances of the
charged offenses, predict that a jury free from bias cannot be selected and that such a jury
cannot be easily selected.
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I.
VOLUME AND NATURE OF PRETRIAL PUBLICITY
A. Residents of Pulaski County Have Been Continuously Exposed to Hundreds
of Media Reports Regarding Defendant and the Alleged Victim
On March 22, 2015, Noah Thomas, age five, was reported missing from his home in
Dublin, Virginia. A four-day search of the area surrounding his home followed,
conducted by over one thousand professional searchers and hundreds of local volunteers.
On March 26, 2015, Noah Thomas’ body was recovered from the septic tank of his
family’s home. A funeral for Noah Thomas was held on April 2, 2015. On April 3, 2015,
the next day, Ms. White was arrested for two charges of Child Abuse and Neglect, one
alleging Noah Thomas as the victim. On June 10, 2015, Ms. White was charged with
Felony Murder for allegedly causing the death of Noah Thomas. That charge was
ultimately dismissed on August 12, 2015, at a preliminary hearing in the Juvenile and
Domestic Relations District Court of Pulaski County.
According to the United States Census Bureau’s 2010 census, Pulaski County has
a population of 34,872. Pulaski County is served by two major news stations: WDBJ71
and WSLS10, two major newspapers: The Southwest Times2 and The Roanoke Times3,
and multiple radio stations, including WVTF Talk Radio, and WFIR. In addition to print
articles, the Southwest Times and the Roanoke Times operate Facebook pages and offer
online articles on their respective websites. Similarly, in addition to broadcasts, WDBJ7
and WSLS10 operate Facebook pages and publish online articles that often include video
1
WDBJ7 broadcasts to 13,630 households in Pulaski County.
The Southwest Times averages a daily print readership of 17,000. The newspaper’s website averages
50,000 visits per month. Every story that appears in print is also posted on the Southwest Times’ website.
3
The Roanoke Times averages a weekday print readership of 55,747 and an average Sunday readership of
73,447. The newspaper’s website, roanoke.com, averages 1,729 page views per story.
2
4
newscasts.4 Facebook users are able to comment either directly on the online stories, or to
the media outlet’s Facebook page.
The media coverage surrounding the initial disappearance of Noah Thomas was
extensive. Four days elapsed from the date Noah Thomas was reported missing to the
date his body was recovered. During that time period, WDBJ7 aired twenty-five
broadcasts reporting on details of the search, often featuring pictures of Noah Thomas.
WSLS10 aired twenty-nine broadcasts while Noah Thomas was considered missing, and
the Roanoke Times published five articles from the date of his disappearance up until the
discovery of his body, four of which were featured on the front page. The Southwest
Times published six articles during the same four-day period.
Between March 27, 2015, and April 1, 2015, news outlets reported information
about funeral arrangements and the eventual service, and speculated on the timeline of
autopsy results. WDBJ7 aired twenty-seven broadcasts describing vigils held in memory
of Noah Thomas and providing details on the funeral for “Little Noah.”5 WSLS10 aired
thirty-four broadcasts with similar content. The Roanoke Times published four articles,
three of which appeared on the front page.
Beginning with Ms. White’s arraignment on April 3, 2015, the four major news
outlets in Pulaski County provided extensive coverage of every court appearance by Ms.
White, and her co-defendant, Paul Thomas. WDBJ7 has devoted a total of fifty-four
broadcasts to court appearances of Ms. White and her co-defendant. WSLS10 has aired
102 broadcasts describing court appearances. The Roanoke Times has published twelve
articles summarizing court appearances, nine of which have appeared on the front page.
4
Wdbj7.com averaged 7,628,022 page views from January through October (with August removed) and
during that same time period, averaged 1,245,255 unique users.
5
WDBJ Mornin: (WDBJ7 television broadcast Apr. 29, 2015).
5
In total, WDBJ7 aired 137 broadcasts and WSLS10 aired 213 broadcasts
involving Ms. White, her co-defendant, and/or Noah Thomas. The Roanoke Times
printed twenty-nine articles, twenty of which appeared on its front page, and the
Southwest Times printed thirty-six articles.
B. The News Reports Go Beyond Dispassionate Reporting and Contain
Inaccurate Information
1. Multiple News Reports Suggested Foul Play in the Death of Noah Thomas,
Creating a Popular Narrative of Filicide
When Noah Thomas’ body was discovered, the majority of news reports informed the
public that no one had yet been charged in his death.6 Nevertheless, the news outlets
suggested the presence of criminal activity before any arrests were made. On March 27,
2015, on its front page, the Roanoke Times quoted the uncle of Noah Thomas saying
“You don’t get into a septic tank by accident. Someone’s going to pay.”7 In a 5pm
broadcast that same day WDBJ7 reporter Orlando Salinas reported that police had
received a “hard, credible tip that they needed to look inside the septic tank.”8 This
information was repeated on several WDBJ7 broadcasts, and on its Facebook page until
April 2, 2015, when they revealed in a broadcast that law enforcement had never received
a tip to look inside the septic tank.9 On March 27, 2015, WDBJ7 further elicited the
opinion of a sanitation specialist who speculated that it is “highly unlikely a child would
be able to remove a lid, whether it’s cement or plastic.” On April 2, 2015, during a 6pm
broadcast, WDB7 reporter Orlando Salinas says he’s been “told by one law enforcement
6
See WDBJ7 Evening News, 5pm, 6pm (WDBJ7 television broadcast, Apr. 1, 2015).
Cameron Austin, Body of Noah Thomas found near his home, THE ROANOKE TIMES, Mar. 27, 2015,
at A1.
8
See WDBJ7 Evening News, 5pm (WDBJ7 television broadcast, Mar. 27, 2015).
9
See WDBJ7 Evening News, 5pm (WDBJ7 television broadcast, Apr. 2, 2015).
7
6
officer, most of the time when a child is missing or has been abducted there is a family
connection.”10 Mr. Salinas ends his report by telling viewers that the parents of Noah
Thomas “have not been charged at all in their son’s murder.” After Mr. Salinas’ report
concludes, the WDBJ7 anchor quickly corrects Mr. Salinas pointing out that it is not yet
clear whether Noah Thomas was murdered.11
On April 30, 2015, the headline on the Roanoke Times read “Slain boy’s dad to
remain jailed.”12 Merriam-Webster Dictionary and common understanding defines
“slain” as “to kill violently, wantonly, or in great numbers.” Again, a news outlet
determined that the death of Noah Thomas was a killing, reinforcing the narrative that
someone was criminally culpable. In reality, the manner of death of Noah Thomas was
never determined.
In addition to the inaccurate and confusing initial reports regarding Noah
Thomas’s manner of death, there was also extensive coverage of the Felony Murder
charge brought against Ms. White on June 10, 2015. The Roanoke Times featured a story
on its front page June 11, 2015.13 WDBJ7 aired six broadcasts with reports specifically
dedicated to the murder charge. WSLS10 aired nine broadcasts detailing the murder
charge and its maximum sentence.
The public responded to these reports, expressing pleasure over Ms. White’s
eventual arrest, and hope that she would receive the maximum sentence, which many
mistook to be the death penalty. Nancy Cannady Tinsley commented on WDBJ7’s online
article, “…you are a sack of crap. I hope if you don’t get the death penalty that the
10
WDBJ7 Evening News, 6pm (WDBJ7 television broadcast, Apr. 2, 2015).
WDBJ7 Evening News, 6pm (WDBJ7 television broadcast, Apr. 2, 2015).
12
Cameron Austin, Slain boy’s dad to remain jailed, THE ROANOKE TIMES, Apr. 30, 2015, at A1.
13
Cameron Austin, Mother charged with homicide, THE ROANOKE TIMES, Jun. 11, 2015, at A1.
11
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inmates in the prison find out what you have done and make your life a living hell, just
like it was for poor little Noah!!”14 Lesa Smith commented, “I am 99.9% sure teh [sic]
murder charges are coming”15 while Cindy Odum Hicks agreed that Ms. White murdered
her son, commenting:
she should have thought about ‘being the topic of conversation around the
dinner table’ before she neglected, abused, and ‘murdered’ this sweet boy!
You WILL rot in Hell maam [sic] and will be the topic for many months to
come. You two should save yourself some ebarrasment [sic] and confess to
the murder.16
Many expressed frustration that Ms. White was not charged with the murder of Noah
Thomas from the beginning. “Why hasn’t the mother been charged with murder? Neglect
and abuse charges are not heavy enough. She murdered that little boy when she placed
him in that septic tank.”17 In response, Megan Culhane Bordenave informs the previous
poster, “Rhonda, the CHARGE OF MURDER will be added when the Grand Jury
convenes…it is just normal procedure. It could be a FELONY 6!!!”18 These comments
are representative of the responses to online articles following Ms. White’s arrest and
arraignment, with many expressing their hope that Ms. White would be tortured.
I SAY FIND A SEPTIC TANK ABOUT HALF FULL AND 20 FT.
TALL AND PUT BOTH OF THEM IN IT ALIVE (WITHOUT
SHOOTING THEM UP WITH HERION [sic]) AND TAKE A CAR AND
Comment on: David Kaplan, Noah Thomas’ parents arraigned; next hearing is August 12 (last modified
Apr. 3, 2015) < http://www.wdbj7.com/news/local/parents-of-noah-thomas-to-be-arraigned-fridaymorning-through-video-uplink/32171790>
15
Lesa Smith, Comment to David Kaplan, Noah Thomas’ parents arraigned; next hearing is August 12
(last modified Apr. 3, 2015) < http://www.wdbj7.com/news/local/parents-of-noah-thomas-to-be-arraignedfriday-morning-through-video-uplink/32171790>
16
Cindy Odum Hicks, Comment to David Kaplan, Noah Thomas’ parents arraigned; next hearing is
August 12 (last modified Apr. 3, 2015) < http://www.wdbj7.com/news/local/parents-of-noah-thomas-to-bearraigned-friday-morning-through-video-uplink/32171790>
17
Rhonda Hales, Comment to David Kaplan, Noah Thomas’ parents arraigned; next hearing is August 12
(last modified Apr. 3, 2015) < http://www.wdbj7.com/news/local/parents-of-noah-thomas-to-be-arraignedfriday-morning-through-video-uplink/32171790>
18
Megan Culhane Bordenave, Comment to David Kaplan, Noah Thomas’ parents arraigned; next hearing
is August 12 (last modified Apr. 3, 2015) < http://www.wdbj7.com/news/local/parents-of-noah-thomas-tobe-arraigned-friday-morning-through-video-uplink/32171790>
14
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PARK THE TIRE RIGHT ON TOP OF THE LID AND LEAVE THEM IN
THERE FOR 4 DAYS. LET THEM SUFFER DOWN IN THE CRAP TIL
THEY D-I-E..........R.I.P. SWEET NOAH19
In response to the above comment, Penny Cheek says “also let the public line up to use
the bathroom on them, like they probably did that morning!!!!!”20
In a Facebook post on March 27, 2015, WDBJ7 featured a story with the headline
“Pulaski Co. sheriff confirms death of Noah Thomas; no one in custody.”21 While some
posters cautioned against immediately blaming Ms. White, others provided parenting
advice and judgments on her character. Alexis Aliff commented, “I know people parent
different [sic] but in MY OPINION you are a crappy mom if you go back to sleep letting
a curious child roam free.”22 Brandon Akers comments, “All fault falls on mother for not
watching her kid,”23 while Bonnie Rodriguez suggests her fellow Facebook users should
be less quick to pass judgment: “I know our minds want to blame someone, otherwise we
would have to admit this could happen to us. What if we are wrong?”24
Many Facebook commenters prayed that Noah Thomas did not go into the tank
alive.25 The narrative enforced by news outlets and social media had created only two
Peggy Ferris, Comment to David Kaplan, Noah Thomas’ parents arraigned; next hearing is
August 12 (last modified Apr. 3, 2015) < http://www.wdbj7.com/news/local/parents-of-noahthomas-to-be-arraigned-friday-morning-through-video-uplink/32171790>
20
Penny Cheek, Comment to David Kaplan, Noah Thomas’ parents arraigned; next hearing is
August 12 (last modified Apr. 3, 2015) < http://www.wdbj7.com/news/local/parents-of-noahthomas-to-be-arraigned-friday-morning-through-video-uplink/32171790>
19
21
WDBJ7 Facebook, Pulaski Co. sheriff confirms death of Noah Thomas; no one is in custody (last
modified Mar. 27, 2015) < https://www.facebook.com/wdbj7/?fref=ts>
22
Alexis Aliff, Comment to Pulaski Co. sheriff confirms death of Noah Thomas; no one is in custody (last
modified Mar. 27, 2015) < https://www.facebook.com/wdbj7/?fref=ts>
23
Brandon Akers, Comment to Pulaski Co. sheriff confirms death of Noah Thomas; no one is in custody
(last modified Mar. 27, 2015) < https://www.facebook.com/wdbj7/?fref=ts>
24
Bonnie Rodriguez, Comment to Pulaski Co. sheriff confirms death of Noah Thomas; no one is in custody
(last modified Mar. 27, 2015) < https://www.facebook.com/wdbj7/?fref=ts>
25
See comments on: Nadine Maeser, Sanitation technician describes discovery of Noah Thomas (last
modified Mar. 27, 2015) < http://www.wdbj7.com/news/local/sanitation-technician-describes-discovery-ofnoah-thomas/32052894> “I sincerely hope the little tyke was not alive when he was thrown in the
septic tank”; “I hope the poor baby was already dead before he was put in that tank!!”
9
explanations for the death of Noah Thomas: either someone murdered him by putting him
into the septic tank, or he was murdered and then placed in the septic tank. Many ignored
the possibility that his death was accidental. Karla Shepherd commented,
I am sickened by the way this precious little boy was discarded as if he was a
piece of sh*t!!!! I pray that these sick excuses for parents and humans get the
death penalty & made to pull their time at the bottom of the Prison’s septic
system!! RIP NOAH!! JUSTICE WILL BE DONE FOR YOU!!26
This comment was made on April 3, 2015, the day of Ms. White’s arraignment, and
before any evidence had been presented in her case.
When the murder charge was dismissed on August 12, 2015, online commenters
directed their rage towards the Juvenile and Domestic Relations District Court Judge. The
following comments are representative of the online reaction to the dismissal:






“I would bet all I have this judge is a liberal”
“How in the world do you get a REDUCTION in charges when he obviously was
alive when he was put in the septic tank?”
“If the court doesn’t /can’t/won’t give them what they deserve, let’s all pray that
their future fellow inmates in the big house gives it to them.”
“the judge needs to be removed from the case and one brought in from a different
state that will not allow these fools to ever see the light of day again”
“them and the judge should burn in hell”
“the judge that dismissed the charge of murder should recuse himself from this
case because he Definately [sic] doesn’t want Justic [sic] for Noah”27
The largest volume of information regarding the death of Noah Thomas was released at
the preliminary hearing on August 12, 2015. However, as demonstrated in the comments
above, very little of that evidence was actually considered in the realm of social media.
Karla Shepherd, Comment to David Kaplan, Noah Thomas’ parents arraigned; next hearing is August 12
(last modified Apr. 3, 2015) < http://www.wdbj7.com/news/local/parents-of-noah-thomas-to-be-arraignedfriday-morning-through-video-uplink/32171790>
27
Comments on Justin Ward, More details emerge of Noah Thomas’ death, Pulaski community reacts (last
modified Aug. 13, 2015) < http://www.wdbj7.com/news/local/more-detail-emerge-of-noah-thomas-deathpulaski-community-reacts/34685338>
26
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The community had already decided on Ms. White’s guilt and that decision was based on
faulty, inaccurate, and guilt presumptive media reports and online speculation.
2. News Coverage of Four Bail Hearings Revealed Information to the Public
That Is Highly Prejudicial and Misleading, and Is Likely To Be Inadmissible
at Trial.
Ms. White and her co-defendant appeared before Juvenile and Domestic Relations
District Court Judge Loftin on April 15, 2015 for bail hearings. Multiple news
organizations were present at both hearings. At each bail hearing, the Commonwealth’s
Attorney alleged that the co-defendant admitted to weekly marijuana use, and
prescription drugs and marijuana were found in Ms. White’s home. The
Commonwealth’s Attorney also proffered that Ms. White’s 6 month-old daughter had
“fairly serious respiratory issues” and was removed from the home by Social Services. 28
The Commonwealth’s Attorney’s proffer of evidence, which was heavily reported on,
also contained admissions by Ms. White and her co-defendant that may not be admissible
at trial.29
After evidence and arguments were presented at Ms. White’s bail hearing, Judge
Loftin commented that “putting her in a house with a child is unthinkable at this point.”30
Social media users applauded the denial of bail, with one commenting, “Hell is waiting
on these two…They should be put in septic tank and DIE!”31 Another user, Nita Sexton,
Cameron Austin, Noah Thomas’ mother loses 2nd bond motion, THE ROANOKE TIMES, Apr. 22, 2015,
at B2.
29
See Cameron Austin, Child’s parents denied bond, THE ROANOKE TIMES, Apr. 16, 2015, at A1;
Noah Thomas’ parents denied bond, admit to leaving children home alone (last modified Apr. 16, 2015) <
http://www.wdbj7.com/news/local/father-of-noah-thomas-denied-bond-mother-due-in-court-at-1pm/32380440>
30
Cameron Austin, Child’s parents denied bond, THE ROANOKE TIMES, Apr. 16, 2015, at A1.
31
Comment on Noah Thomas’ parents denied bond, admit to leaving children home alone (last modified
Apr. 16, 2015) < http://www.wdbj7.com/news/local/father-of-noah-thomas-denied-bond-mother-due-incourt-at-1-pm/32380440>
28
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demands a more violent death for Ms. White: “I say pump their cells full of sewage water
and let them breathe it”.32
Both Ms. White and her co-defendant appealed the denial of bail to Pulaski
County Circuit Court. Ms. White’s hearing was held on April 20, 2015. At the hearing,
the Commonwealth’s Attorney referenced a pending toxicology report as “critical
evidence,” leaving many to speculate as to whether drugs were a factor in Noah
Thomas’s death. 33
On April 29, 2015, during Paul Thomas’s appeal, the Commonwealth’s Attorney
stated that medical records revealed Ms. White’s infant daughter was born with Neonatal
Abstinence Syndrome, meaning she was “exposed to addictive opiate drugs while in the
mother’s womb.”34 Again, Facebook users responded aggressively. Theresa Moore
suggested, “[t]he judge should give him and her death now. Just like they did Noah. Flush
them both”.35 Dan Irwin agreed, saying, “[t]hese low life piece of shits need to be dipped
in the sewer for 4 days straight til close to death and then on the 5th day drown them in
shit”.36 Some Facebook dissidents attempted to remind their fellow posters of the
importance of due process. Stephanie Batts replies with, “[t]hey don’t deserve a damn
Nita Sexton, Comment on Noah Thomas’ parents denied bond, admit to leaving children home alone
(last modified Apr. 16, 2015) < http://www.wdbj7.com/news/local/father-of-noah-thomas-denied-bondmother-due-in-court-at-1-pm/32380440>
33
Cameron Austin, Noah Thomas’ mother again denied bond (last modified Apr. 21, 2015) <
http://www.roanoke.com/news/crime/pulaski_county/noah-thomas-mother-again-deniedbond/article_c3bdc216-f1d8-5356-afe6-85d15ae20142.html>
34
Bond appeal denied for father of Noah Thomas, (last modified Apr. 29, 2015) <
http://www.wdbj7.com/news/local/new-river-valley/father-of-noah-thomas-to-seek-bond-onwednesday/32633726>
35
Theresa Moore, Comment on Bond appeal denied for father of Noah Thomas, (last modified Apr. 29,
2015) < http://www.wdbj7.com/news/local/new-river-valley/father-of-noah-thomas-to-seek-bond-onwednesday/32633726>
36
Dan Irwin, Comment on Bond appeal denied for father of Noah Thomas, (last modified Apr. 29, 2015) <
http://www.wdbj7.com/news/local/new-river-valley/father-of-noah-thomas-to-seek-bond-onwednesday/32633726>
32
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due process. They deserve a hanging.”37 Facebook users expressed frustration with the
appeals process, with Judi Huffman questioning, “how many appeals did little Noah get?”
Others speculated on a sinister motive for the appeal, with one user asking, “Is there
something they gotta [sic] finish before the cops find it?”38
The constant mention of drugs, from the marijuana found in the home to the
alleged Neonatal Abstinence Syndrome did not go unnoticed in the social media realm.
Dorothy Bobbitt comments, “[s]o, they were on drugs, that’s y [sic] they left the children
at home alone, or did one of them kill the child, I’m hearing so many different things”.39
3. Additional Prejudicial and Inflammatory Character Information
Regarding Ms. White Was Published and Will Likely Be Found Inadmissible
On April 2, 2015, the Roanoke Times posted an online article titled “After arrest
of Noah Thomas’ parents, Commonwealth’s Attorney says ‘our job is far from over.’”40
On April 3, 2015, the same article was posted on its front page with the headline “Noah
Thomas’ parents jailed day after burial.”41 This article contained information on the
relationship between Ms. White and Tara Munsey, the victim of an attempted rape and
murder that occurred in January, 2000. The article includes quotes from Ms. Munsey’s
father who recalled Ms. White assisting in the search of his daughter. The ultimate
prosecution of Ms. Munsey’s murderer, Jeffrey Thomas, generated such a large amount
37
Stephanie Batts, Comment on Bond appeal denied for father of Noah Thomas, (last modified Apr. 29,
2015) < http://www.wdbj7.com/news/local/new-river-valley/father-of-noah-thomas-to-seek-bond-onwednesday/32633726>
38
Comment on: Bond appeal denied for father of Noah Thomas, (last modified Apr. 29, 2015) <
http://www.wdbj7.com/news/local/new-river-valley/father-of-noah-thomas-to-seek-bond-onwednesday/32633726>
39
Dorothy Bobbitt, Comment on <https://www.facebook.com/wdbj7/?fref=ts>.
40
Cameron Austin, After arrest of Noah Thomas’ parents, commonwealth’s attorney says ‘our jobs are far
from over’, (last modified Apr. 2, 2015) <http://www.roanoke.com/news/crime/pulaski_county/after-arrestof-noah-thomas-parents-commonwealth-s-attorney-says/article_317ae1ed-ccc2-52cc-bb940ebfb2e94095.html>
41
Cameron Austin, Noah Thomas’ parents jailed day after burial, THE ROANOKE TIMES, Apr. 3, 2015,
at A1.
13
of negative and inflammatory press that his conviction was eventually overturned by the
Virginia Supreme Court because Defendant’s Motion for Change of Venue was denied.
The information in the article served no purpose other than to tie Ms. White’s name to a
murder with widespread notoriety in the Pulaski County community, further tarnishing
her name and character.
On May 6, 2015, the Roanoke Times featured an online article titled “Noah
Thomas case: police were called to hotel room of parents”.42 The article also appeared on
the front page of the Roanoke Times on May 7, 2015.43 The article contained no
information about Noah Thomas or progress with the investigation. Instead, it described
cigarette odor and burns inside the hotel room where Ms. White was staying.
Commonwealth’s Attorney, Mike Fleenor, told The Roanoke Times that “deputies also
found a very small amount of what was believed to be marijuana residue, but it was not
enough to test the substance and charges were not pressed.”44 In addition to its
appearance on the front page of the Roanoke Times, WSLS10 featured this story on their
website on May 7, 2015, and it was aired on the 5pm, 6pm, 7pm and 11pm broadcasts.45
The story was irrelevant, but for its effect of fueling further attacks on Ms. White’s
character.
4. Social Media Users Have Created Numerous Pages to Share Speculation,
Rumors, and Prayers for Ms. White’s Execution
42
Cameron Austin, Noah Thomas case: Police were called to hotel room of parents (last modified May 6,
2015) < http://www.roanoke.com/news/crime/noah-thomas-case-police-were-called-to-hotel-roomof/article_2eb0c3cf-4196-5d23-8e16-e73b21f42e61.html>
43
Cameron Austin, Police were called to hotel room, THE ROANOKE TIMES, May 7, 2015, at A1.
44
Cameron Austin, Noah Thomas case: Police were called to hotel room of parents (last modified May 6,
2015) < http://www.roanoke.com/news/crime/noah-thomas-case-police-were-called-to-hotel-roomof/article_2eb0c3cf-4196-5d23-8e16-e73b21f42e61.html>
45
Bethany Teague, Police called to hotel room where parents of Noah Thomas stayed (last modified May
7, 2015) < http://wsls.com/2015/05/07/police-called-to-hotel-where-parents-of-noah-thomas-stayed/>
14
The advent of social media and the internet has catapulted already negative and
pervasive coverage to an unprecedented level in Pulaski County. Social media has
impacted the Noah Thomas investigation from the beginning, garnering several
comments from public officials cautioning against online rumors and speculation.46 On
March 29, 2015, WDBJ7 posted an online article titled “Family wrongly targeted in
social media backlash.”47 The article references a “vulgar Facebook post” referencing
Noah Thomas that had gone viral. In response to the Facebook post, users began sharing
what they thought was the poster’s home address in Radford, Virginia. The address was
shared three thousand times. The address did not belong to the person who had made the
initial Facebook post, rather, it belonged to Roni Boswell, a Radford University student
and mother of a three year-old son, who was recently diagnosed with cancer. Ms.
Boswell and her family were forced to flee their home because of the harassment that
ensued.
In the wake of Noah’s disappearance and death, several memorial pages have
been created. “Noah Thomas our ‘Small Town Angel’” has 20,927 “likes” and is
described as “a place to grieve the loss of Noah Terry Thomas and celebrate his 5 years
on this earth.”48 The page features collages and pictures dedicated to Noah Thomas’
memory. The user comments on the page are generally focused on praying for Noah
Thomas and preserving his memory.
46
See Melinda Williams, Authorities not giving up on Noah (last modified Mar. 26, 2015) <
http://www.southwesttimes.com/2015/03/authorities-not-giving-up-on-noah/>; Shane Dwyer, Community
pitching in to help search for Noah Thomas (last modified Mar. 25, 2015) <
http://www.wdbj7.com/news/local/search-for-5yearold-noah-thomas-enters-third-day/31988010>;
Cameron Austin, Search for boy baffles officials, THE ROANOKE TIMES, Mar. 26, 2015, at A1.
47
Shane Dwyer, Family wrongly targeted in social media backlash (last modified Mar. 30, 2015) <
http://www.wdbj7.com/news/local/family-wrongly-targeted-in-noah-thomas-social-mediabacklash/32079740>
48
See Noah Thomas our ‘Small Town Angel’
<https://www.facebook.com/findmissingnoahthomas/?fref=ts>.
15
“Justice for Children Without Voices In
Memory of Noah Thomas” is a Facebook page with
7,208 user “likes” and its administrators describe
themselves as individuals “who are here to speak up for
children who’s [sic] voices have been gone too soon.”49
The page was “made in memory of Noah Thomas and
all the children of abuse and neglect.” This page is
focused on punishing individuals whom the online mob labeled as child abusers. The
page often features inflammatory graphics such as the head of Noah Thomas photoshopped on the body of an angel, a
superhero, a firefighter, Buzz
Lightyear, and other popular
children’s figures. The page also
features multiple graphics of Ms.
White clad in shackles or a
bulletproof vest. 50 Those who
participate on the page are often
violent and threatening. The following are some representative examples:



“They should have a court house hanging”51
“Kill that bitch!”52
“Casey Anthony all over again”53
49
See Justice for Children Without Voices
<https://www.facebook.com/JusticeForChildrenWithoutVoices/?fref=ts>
50
See Justice for Children Without Voices
<https://www.facebook.com/JusticeForChildrenWithoutVoices/?fref=ts>
51
See Justice for Children Without Voices
<https://www.facebook.com/JusticeForChildrenWithoutVoices/?fref=ts>
52
See Justice for Children Without Voices
<https://www.facebook.com/JusticeForChildrenWithoutVoices/?fref=ts>
16





“Poor little Noah didn’t deserve any of this. He was killed and then thrown into a
septic tank. His life was stolen from him by evil monsters.”54
“Bet the monsters still look better than PRECIOUS NOAH DID LYING IN A
SEPTIC TANK .I ASK OUR LORD FOR FORGIVENESS......BUT I HATE
THESE NONSTERS [sic] WITH A PASSION....I WANT THEM DEAD AND
ANYBODY INVOLVED,,,,,,,I LOVE YOU NOAH THOMAS......” 55
“Let me get a hold of them !!!! I beat them both have [sic] to death and make
them eat their own S*** !!! I can't stand common trash and low life good for
absolutely nothing and has no right to continue to breathe! !! What kind of
monsters could abuse a child?? I wish all the worst and most pain on these so
called people for as long as they both live!!!!! NO MERCY”56
“Bring back the death penalty !!! It worked in the past ! Also not years on death
row , make it rapid & save taxpayers $$ ! Also , might make MURDERS [sic]
think twice !”57
“PUT THEIR ASSES IN A SEPTIC AND COVER IT UP!!!! That's not good
enough FLY HIGH NOAH”58
On December 14, 2015, the page posted that Ms. White had filed a motion to change the
venue in her case. Users responded in disgust:59




“Fair, huh??? Where is Little Noah's "fair"??? She needs to face this full force,
face on, in the town/county in which she KILLED our Sweet Noah!!”
“She needs to die like her son did. Social services takes kids from ppl [sic] who
DO NOT deserve for their children to be takin [sic] but u [sic] worried about a
baby killer getting a fair trail?? [sic] SMH.. Only in Pulaski..”
“No way!! Her rights?? What about Noah and his sister's rights to have good
parents love and protect them.. If the public had our way we would hang them
both!! How's that for the rights to get justice for Noah?”
“That lawyer oughta [sic] be ashamed of herself. . Pulaski Co cps isn't fair.. But
the people of Pulaski are good folks and she shouldn't make such generalizations”
53
See Justice for Children Without Voices
<https://www.facebook.com/JusticeForChildrenWithoutVoices/?fref=ts>
54
See Justice for Children Without Voices
<https://www.facebook.com/JusticeForChildrenWithoutVoices/?fref=ts>
55
See Justice for Children Without Voices
<https://www.facebook.com/JusticeForChildrenWithoutVoices/?fref=ts>
56
See Justice for Children Without Voices
<https://www.facebook.com/JusticeForChildrenWithoutVoices/?fref=ts>
57
See Justice for Children Without Voices
<https://www.facebook.com/JusticeForChildrenWithoutVoices/?fref=ts>
58
See Justice for Children Without Voices
<https://www.facebook.com/JusticeForChildrenWithoutVoices/?fref=ts>
59
See Justice for Children Without Voices
<https://www.facebook.com/JusticeForChildrenWithoutVoices/?fref=ts>
17

“Why give someone a a [sic] fair trial. That little boy didn't have a fair chance.
Why say it's not fair. She did it and she knows she did. It's unfair to know a little
boy is dead and the boys [sic] sister will never know who her brother was or even
grow up. I hope someone in that jail f***KS [sic] her up on there along with the
other douchebag”
The comments overwhelmingly show an opposition to the motion for a change of venue,
but not because the commenters believe she will receive a fair trial in Pulaski County.
Rather, they would like to see Ms. White tried in Pulaski County because they want to
ensure she receives the maximum sentence, or because they do not believe she is
deserving of constitutional rights.
The administrators of Justice for Children Without Voices were present in the
Juvenile and Domestic Relations courtroom during the preliminary hearing on August 12,
2015, despite the courtroom being closed to the public. The administrators, “Dawn and
Anna,” posted a detailed account of the preliminary hearing and shared it to the Justice
for Children Without Voices Facebook page.60 The administrators of the Facebook page
presenting themselves as members of the news media is especially worrisome because
they are not bound by journalistic standards such as drawing a distinction between
advocacy and news reporting, or fact-checking to assure accurate content.
Former WDBJ7 reporter Orlando Salinas operates a Facebook page where he
frequently posts under the headline of “More TV Truth.” His page has 5,046 followers
and 5,000 “friends.”61 On April 29, 2015, Mr. Salinas alleged (via Facebook post) that
the hotel room Ms. White stayed in while Noah Thomas was missing had been
60
See Justice for Children Without Voices In Memory of Noah Thomas, Untitled Post, Aug. 12, 2015, <
https://www.facebook.com/JusticeForChildrenWithoutVoices/photos/pb.1594862397423664.2207520000.1451405396./1634107923499111/?type=3&theater>
61
See Orly Salinas<https://www.facebook.com/profile.php?id=100009086300671&fref=ts>.
18
“trashed.”62 Mr. Salinas questions whether the Pulaski County taxpayers are responsible
for covering the cost of the alleged damage to the hotel room.
In another post on May 7, 2015, Mr. Salinas says he has “confirmed through law
enforcement sources NOT authorized to speak with journalists, that the prescription
painkillers seized from the home of the parents of #NoahThomas [sic] during the course
of the investigation, were liquid vials of methadone.” Mr. Salinas alleges that Ms.
White’s daughter is being “fostered by a family with experience caring for children born
with addictions.” Mr. Salinas goes on to describe a “not uncommon practice whereby
adults on a prescribed methadone treatment program, will dip their finger into the vial of
liquid methadone and wipe that finger inside the mouth of crying child.” Mr. Salinas
applies this purely hypothetical scenario to the death of Noah Thomas and fabricates a
possible explanation. “Sources with intimate knowledge, say the scenario of either Paul
Thomas or Ashley White inserting their finger – knowingly laced with an uncertain
amount of liquid methadone – into the mouth of their son Noah is being strongly
considered.”63 Mr. Salinas’s Facebook followers respond to this post with comments such
as, “I liked your reporting always truthful,” and “excellent reporting Orly!” Again, the
posts are especially dangerous because while Mr. Salinas has the Facebook following of a
former reporter, he is not bound by journalistic standards.
II.
EMOTIONAL INVOLVEMENT OF PULASKI COUNTY RESIDENTS
The media coverage attests to the significant emotional interest that residents of
Pulaski County have in Ms. White’s case. Hundreds of Pulaski County residents
62
63
See Orly Salinas<https://www.facebook.com/profile.php?id=100009086300671&fref=ts>.
See Orly Salinas<https://www.facebook.com/profile.php?id=100009086300671&fref=ts>.
19
contributed their time and energy to searching for Noah Thomas during the four-day
period when he was missing.64 Following the discovery of his body, several vigils were
held in his memory.65 Three months after Noah Thomas’s death, community members
gathered for a balloon release in celebration of his sixth birthday. In an online article
titled “Community gathers to remember Noah Thomas’ birthday,” WDBJ7 quoted one
attendee who said, “I’m happy that he is probably enjoying (what) is probably the first
birthday he’s ever enjoyed.”66
On October 17, 2015 a 95 mile bike ride was held in memory of Noah Thomas.
Dozens of riders attended, and $2,500 was raised in support of NRV Cares, a group
whose aim is to prevent child abuse. Tickets were sold where the ride began: the Pulaski
County Sheriff’s Office.67
III.
POTENTIAL FOR VIOLENCE
If Ms. White’s trial is held in Pulaski County, the Court should have concerns
regarding the safety of Ms. White. When Ms. White was transported on August 12, 2015
from the New River Valley Regional Jail to the courthouse in Pulaski, jail officials put
64
Calvin Pynn, Community volunteers turn out to find missing boy (last modified Mar. 27, 2015) <
http://www.southwesttimes.com/2015/03/community-volunteers-turn-out-to-find-missing-boy/>
65
See Brie Jackson, Candlelight vigils held for Noah Thomas, (last modified Mar. 25, 2015)
http://wsls.com/2015/03/25/candlelight-vigils-held-for-noah-thomas/; Justin Ward, Community mourns
Noah Thomas during vigil Thursday night (last modified Mar. 27, 2015)
<http://www.wdbj7.com/news/local/community-mourns-noah-thomas-during-vigil-thursdaynight/32041352>; Bland Co. community set to hold prayer vigil for Noah Thomas; (last modified Mar. 24,
2015) <http://wsls.com/2015/03/24/bland-co-community-set-to-hold-prayer-vigil-for-noah-thomas/>; Duke
Carter, Dozens attend vigil in Radford to remember Noah Thomas (last modified Mar. 30, 2015)
<http://wsls.com/2015/03/30/dozens-attend-vigil-in-radford-to-remember-noah-thomas/>; Shane Dwyer,
Community still coping with news of Noah Thomas death (last modified Mar. 28, 2015)
<http://www.wdbj7.com/news/local/community-still-coping-with-news-of-noah-thomas-death/32070176>.
66
Shane Dwyer, Community gathers to remember Noah Thomas birthday (last modified Jun. 26, 2015) <
http://www.wdbj7.com/news/local/community-gathers-to-remember-noah-thomas-birthday/33804664>
67
Khiree Stewart, Fundraiser held in honor of Noah Thomas (last modified Oct. 17, 2015) <
http://www.wdbj7.com/news/local/fundraiser-held-in-honor-of-noah-thomas/35901736>
20
her in a bulletproof vest, demonstrating an obvious concern for her safety. Additionally,
social media users have made the same observation. When Ms. White’s co-defendant
appealed his denial of bail, Jeanette Cockram Chaffin commented on WDBJ7’s Facebook
post:
If he was to get out we may have Baltimore right here in our community.
I pray they are wise in this decision…Really don’t mean to imply the
people of our community are thugs though. There are just sooo [sic]
many angry, disgusted people over this. 68
Several comments indicate confusion about why Ms. White or her co-defendant
would want to get out of jail, because they were safer in custody.69 Another poster, Benny
Garrido, shared a picture of a noose being tied.70 Regarding Ms. White’s bail attempts,
Shirley Linkous commented “she better hope she don’t get out. I’m sure some one [sic]
out here is waiting on her.”71
While it may be tempting to dismiss Facebook comments as idle threats, or as
only slightly mentally disturbed individuals who will remain hidden behind their
computer screens, recall the story of Roni Boswell and her family. The Boswell family
was forced to flee their home after the address was shared on social media.
ARGUMENT
The publicity surrounding Ms. White’s case is so extensive and inherently
prejudicial that “the trial proceedings should be deemed tainted.” United States v.
Church, 217 F.Supp.2d 696 (W.D. Va 2002). It is highly improbable that any resident of
68
See WDB7 Facebook, <https://www.facebook.com/wdbj7/?fref=ts>
See WDBJ7 Facebook, <https://www.facebook.com/wdbj7/?fref=ts>
70
See WDB7 Facebook, <https://www.facebook.com/wdbj7/?fref=ts>
71
Shirley Linkous, Comment on Chris Hurst, Judge: No bond for mother of Noah Thomas (last modified
Apr. 21, 2015) < http://www.wdbj7.com/news/local/mother-of-noah-thomas-to-appeal-bonddenial/32426680>
69
21
Pulaski County is unfamiliar with the rumors, speculation, and widespread hatred
surrounding Ms. White’s case that are evidently taken as truth. While in some
circumstances it may be reasonable to believe that a prospective juror could set aside any
prejudices held regarding the case, the emotional involvement of the community
combined with the pervasive media coverage makes selecting an impartial jury in Pulaski
County impossible.
The evidence presented at the bail hearings held for Ms. White and her codefendant was extremely prejudicial, bore no relevance to the issue of bail, and is
unlikely to be admissible at trial. The Commonwealth,
having chosen to feed the flames of public hysteria over this case, must
bear the consequences of this tactic. We think that the [State] is put to a choice
in this matter: If the [State]... chooses to ... [generate] damaging publicity
prejudicial to a person awaiting trial on a pending indictment, then the [State]
must accept the consequence…
Delaney v. United States, 199 F.2d 107, 114 (1st Cir. 1952).
The court need not speculate as to whether the coverage tends to incite prejudice or
passion in the community. Social media demonstrates a community that is warped by its
desire for perceived retribution, one that is incapable of remaining unbiased in the face of
continuing media reports and speculation fueled by social media. The Pulaski County
community’s emotional response to Ms. White’s case creates the concern that community
members, eager for a conviction, may circumvent the voir dire process to carry out what
they may perceive as the will of the public. Even those members of the public who wish
to be fair and impartial might fear negative social consequences if they did not convict
Ms. White.
22
Undoubtedly, the consequences of an acquittal in Pulaski County would weigh
heavily on any juror’s mind. Social media allows the public to voice their threats in a
manner that would influence even the most unbiased juror.
One reason threats are more menacing on the Internet is their ability
to reach a much larger and more widespread audience. Town criers are
no longer constrained by the volume of their voice. Before the Internet,
it was difficult for a speaker’s message to spread throughout a small community,
much less to the rest of the world. Now, the same message posted on a web
page is available twenty-four hours a day, seven days a week in almost any
country in the world.72
Even if a juror honestly believes she can objectively hear the evidence before trial, she
may come to fear “return[ing] to [her] neighbors” with anything other than a guilty
verdict. Estes, 381 U.S. at 545; see Turner, 379 U.S. at 472. Empirical evidence on the
subject of jury bias confirms the effect of community pressure on jury verdicts. Defined
as “conformity prejudice,” these studies show that “when the juror perceives that there is
such strong community reaction in favor of a particular outcome of a trial he or she is
likely to be influenced in reaching a verdict consistent with the perceived community
feelings rather than an impartial evaluation of the trial evidence.”73
Jurors should not be asked to face harassment and threats of violence if they
acquit Ms. White. An acquittal by the jury should not be an act of bravery. This principle
was illustrated by the trial of the individuals accused of the Oklahoma City bombing. The
district court in that case recognized that community pressure can adversely affect the
72
Scott Hammack, The Internet Loophole; Why Threatening Speech On-line Requires a Modification of
the Courts’ Approach to True Threats and Incitement, 36 C OLUM. J.L. & S OC. P ROBS. 65, 81(2002).
73
See Neil Vidmar, Case Studies of Pre- and Midtrial Prejudice in Criminal and Civil Litigation, 26 L. &
HUM. BEHAV.73, 81-82 (2002). Id. 81-82.
23
ability of individual jurors to act impartially when “there is such identification with a
community point of view that jurors feel a sense of obligation to reach a result which will
find general acceptance in the relevant audience.” United States v. McVeigh, 918 F.Supp.
1467, 1473 (W.D. Okla. 1996). When there is a strong community reaction in favor of a
particular outcome – as there was in the Oklahoma case, and as there is in this case –
jurors feel compelled to reach that result, notwithstanding their promises to the contrary.
IV.
The Prejudice Cannot Be Rebutted Through Voir Dire
Voir dire is an inadequate cure for the widespread prejudice and pervasive vitriol on
social media surrounding Ms. White’s case. The Supreme Court has long and consistently
held that a change of venue is required when “the community and media reaction” is “so
hostile and so pervasive as to make it apparent that even the most careful voir dire
process would be unable to assure an impartial jury.” Flamer v. Delaware, 68 F.3d 736,
754 (3d Cir. 1995). That is, when “adverse pretrial publicity” combines with the “added
pressure” of a “huge wave of ... public passion” to create an “atmosphere corruptive of
the trial process,” the Supreme Court “will presume a fair trial could not be held, nor an
impartial jury assembled.” Mu'Min, 500 U.S. at 448-50 (Kennedy, J., dissenting). Since
that is precisely what has occurred here, voir dire can no longer be expected to perform
its usual function of securing a fair and impartial jury. See Mu'Min, 500 U.S. at 429-30;
Patton, 467 U.S. at 1031-33, 1040; Sheppard, 384 U.S. at 362-63; Estes, 381 U.S. at 55051; Rideau, 373 U.S. at 726-27; Irvin, 366 U.S. at 725-28.
In Irvin, although each juror committed to impartiality and fairness during voir
dire, the Supreme Court analyzed the popular news media surrounding the trial and the
24
2,738-page voir dire record to test the accuracy of the jurors’ assertions of fairness. The
Supreme Court determined there was a clear and convincing “build-up of prejudice” in
the media. Id. at 725-27. Therefore, the court held that the promises of jurors during voir
dire could not be believed. Id. at 727.
While Irvin may be understood as a case addressing actual prejudice of a
particular jury, the Supreme Court generalized the presumed prejudice rule in Rideau. In
that case, the Supreme Court held that “only a change of venue was constitutionally
sufficient” to ensure “an impartial jury,” because the jurors’ community “had been
exposed repeatedly and in depth to the prejudicial pretrial publicity there involved.”
Groppi v. Wisconsin, 400 U.S. 505, 510-11, (1971) (describing Rideau). The defendant in
Rideau gave a filmed confession to murder, which was broadcast on local television
stations. 373 U.S. at 723-25. The Supreme Court presumed potential jurors were
prejudiced by the publicity, and therefore reversed the convictions “without pausing to
examine a particularized transcript of the voir dire” to see whether it actually produced
impartial jurors. Id. at 727. The Supreme Court did so even though voir dire showed that
a small percentage of jurors (only 3 of the 12) had seen the broadcast; none of the 3
“testified to holding opinions of [defendant’s] guilt”; and all three claimed they could
“give the defendant the presumption of innocence” and “base their decision solely on the
evidence.” Id. at 731-32 (Clark, J., dissenting). However, the Supreme Court explained:
“Any subsequent court proceedings in a community so pervasively exposed to such a
spectacle could be but a hollow formality.” Id. at 726.
25
V.
Jury Instructions Are An Inadequate Remedy
Judicial admonitions to disregard pretrial publicity are frequently suggested as sufficient
to counter or mitigate the damaging effects of that publicity. In reality, instructions from
a judge to ignore pretrial publicity in high-profile cases do not affect verdicts or the
propensity of jurors to contest references to pretrial publicity during jury deliberation.74
In a study of whether voir dire could work effectively when nearly everyone in the
community had been exposed to pretrial publicity, the authors concluded that “reliance
on standard cautionary instructions as a remedy for prejudicial pretrial publicity appears
to be unwarranted.”75
Justice Jackson recognized half a century ago that “[t]he naïve assumption that
prejudicial effects can be overcome by instructions to the jury … all practicing lawyers
know to be unmitigated fiction.” Krulewitch v. United States, 336 U.S. 440, 453 (1949)
(Jackson, J., concurring). Nowhere is this more true than under circumstances of
presumed prejudice, when a barrage of constant and hostile media coverage is likely to
make judicial instructions ineffective at best, and counter-productive at worst.
CONCLUSION
It is in the best interest of justice to remove the case to another county within
Virginia pursuant to § 19.2-251 of the Code of Virginia to preserve Ms. White’s right to a
fair trial. “While both victims and society have an interest in punishing those individuals
74
See Geoffrey P. Kramer, Norbert L. Kerr, & John S. Carroll, Pretrial Publicity, Judicial Remedies, and
Jury Bias, 14 L. & HUM. BEHAV. 409, 430 (1990).
75
Kramer, et al., 14 L. & HUM. BEHAV. At 430. See also Minow and Cate, 40 AM. U.L. REV. at 648
(“there has not been a single study which indicates that judicial instructions limit the effects of jury bias.”);
Kerr et al., 40 AM. U.L. REV. at 675 (“Judicial admonitions had no effect on individual jurors or jury
verdicts.”)
26
who violate our criminal statutes, no one’s interests are served when the process by
which a defendant is found guilty is not above suspicion. The fairness of a criminal
proceeding cannot be sacrificed because of the heinousness of a crime charged, the
apparent guilt of the offender or the station in life in which [the defendant] occupies.”
Thomas, 263 Va. At 233 (citing Irvin v. Dowd, 366 U.S. 717, 222 (1961)). A change of
venue provides the only method of avoiding the appearance and reality of unfairness
created by the impact of pretrial publicity and prejudice in the community. An effort to
seat an impartial jury in Pulaski County would be futile, and nothing more than a “hollow
formality.” Rideau, at 726.
For the foregoing reasons, Ms. White respectfully requests that this Court enter an
Order changing venue in this case.
Respectfully submitted,
Ashley Jennifer White
By: _________________________
Of Counsel
Kelsey M. Bulger, Esq.
Virginia State Bar #87352
Office of the Public Defender
58 North Washington Ave. Suite 200
Pulaski, VA 24301
540-994-5008 (voice)
540-994-5020 (fax)
27
CERTIFICATE
I certify that a copy of this request was mailed, faxed, or hand-delivered to K.
Mike Fleenor, Jr., Esq., 240 North Jefferson Avenue, Pulaski, VA 24301, this _______
day of December, 2015.
_____________________________
Kelsey M. Bulger, Esq.
28