As the Melissa Brannen abduction trial grows near, much of the legal debate over the case has focused on whether the intense publicity of the 5-year-old girl's disappearance has been so great that it is impossible to conduct a fair trial in this area.
The trial of groundskeeper Caleb Daniel Hughes, accused of abducting Melissa from a 1989 Christmas party, is scheduled to start Jan. 28 in Fairfax Circuit Court.
Concern for a fair trial is a familiar one in highly publicized cases -- consider the warnings of defense lawyers for Marion Barry, Oliver North and Lyndon H. LaRouche Jr. But what sets the Hughes case apart from other high-profile cases, legal observers say, is the vivid image of Melissa's angelic smile captured on a Brannen home video and broadcast repeatedly by local television stations.
Hughes's lawyer, Peter D. Greenspun, is one of many who have questioned whether conventional safeguards against allowing prejudice into the jury box can overcome the sympathy engendered by Melissa's smile, the media's obsession with every detail of the case or the public's hunger for resolution.
"This community needs finality in this case," Greenspun said. "This case is about a tragedy under any circumstance, and there is huge pressure on all sides for there to be finality. But that is not a reason to convict an innocent man."
Other legal experts, including a few federal judges who recently reviewed aspects of the Hughes case, continue to press their faith in the jury system. They argue that the defense team will have ample opportunity to weed out tainted jurors, and they reproach skeptics who underestimate the ability of jurors to set aside emotion and judge the facts.
"It verges upon insult to depict all potential jurors as nothing more than malleable and mindless creations of pretrial publicity," wrote Circuit Judge J. Harvie Wilkinson III, a federal appellate judge from Richmond, who ordered that an FBI affidavit in the case be released to the public. The unsealing of the affidavit, sought by The Washington Post, is before the U.S. Supreme Court.
Although Fairfax Commonwealth's Attorney Robert F. Horan Jr. has said he will have a difficult time ensuring a fair trial for Hughes if the affidavit is released, he also said that the publicity so far has not sensationalized the case or ruined prospects for finding an impartial jury.
"The mere fact that people know about the case doesn't prohibit a person from sitting on a jury unless there is some prefixed knowledge of guilt or the publicity is inflammatory," Horan said.
Francis J. Socko, of Fairfax, was a juror in an unrelated federal case last spring in which a man was convicted of tricking Melissa's mother, Tammy Brannen, into thinking he had Melissa captive and would return the girl for several thousand dollars.
Having seen Tammy Brannen's pain up close, Socko would like nothing more than to ease her loss.
But as much as Socko wants justice done, he said, he is sure that neither he nor anyone else can rightfully assume that Hughes is the cause of Brannen's sadness.
"Just because you don't like someone or their background or the type of crime they're accused of committing, doesn't mean you can assume that that person is guilty," Socko said.
As in all local courts, Fairfax Circuit Court employs two primary safeguards of a defendant's Sixth Amendment right to a fair trial: a review of potential jurors before trial and, as a last resort, a change of venue that moves the trial to a part of the state where publicity has had less impact.
Legal observers say they can't remember a single instance in the past decade when a trial was moved from Fairfax because publicity had tainted the community. Horan, with more than 20 years' experience in the Commonwealth's Attorney's Office, recalled two cases in recent history that were moved.
One, a manslaughter case that was moved to Southwest Virginia, involved the 1973 collapse of an apartment building under construction in Baileys Crossroads that killed 14 people. The trial ended with the acquittal of Robert Gilbert Arnold, a supervisor on the job. The other was the 1972 abduction and murder of a girl whose body was tied to a tree. John Gilreath was convicted by a Virginia Beach jury in that case and sentenced to life plus 50 years in prison.
Jury selection in Fairfax usually is accomplished in less than an hour, during which the judge and lawyers on both sides ask prospective jurors questions such as whether they know anyone involved in the case or have themselves been recent victims of crime. Defense lawyers sometimes complain that they are limited to generic questions that give them little genuine insight into the thoughts of possible panelists.
Fairfax County Public Defender R. Dean Kidwell, a former prosecutor, said, "Courts are fond of asking the ultimate question: 'Do you know of any reason you would not be able to render a fair and impartial verdict in this case?' If they say 'no' you are stuck with that answer."
Gerard F. Treanor, who represented former American University president Richard E. Berendzen in a case last year involving obscene phone calls, said people are sometimes not inclined in the public setting of a courtroom to admit their biases. "I have never in 20 years heard a member of a jury panel say, 'I cannot be fair when presented with that question,' " Treanor said.
The most prominent recent case in which principals felt the jury system may have stumbled was the drug and perjury trial of former D.C. mayor Barry. Barry was convicted on one misdemeanor count of possession and acquitted of another. The jury deadlocked on 12 other charges.
U.S. District Judge Thomas Penfield Jackson broke with the custom of judicial silence shortly after the trial by assailing the jury in a speech he delivered at Harvard Law School. Jackson said some jurors lied to the court when they said they would be objective. Those jurors would not have voted to convict Barry "under any circumstances," the judge said.
R. Kenneth Mundy, Barry's lawyer, countered in an interview last week that the District "had a population that had been deluged with commentary and news comments about the case," and that some jurors were consequently predisposed against Barry.
Mundy added that publicity and the nature of the crime in the Brannen case present even tougher obstacles for Hughes's defenders. The publicity about Melissa's disappearance "has stirred the sensibilities of the public at large to the terror and horror of the crime, and in effect polluted" the community's judgment, Mundy said.
Brenda E. Callahan, a Springfield resident and one of Socko's colleagues on the jury that convicted the Brannen extortionist, said it would be impossible for her to sit in judgment of Hughes, not because she is convinced of Hughes's guilt, but because she is unnerved by the diabolical character of the crime.
"I would excuse myself from the jury because I have six nieces and nephews all under 8," Callahan said, "and I get very upset when things happen to little children."