Appellant McCowen Brief - Mass Cases

(1983). The trial court‘s media packet proved the point,
yet it refused to change venue or sequester. Tr. 35.
Media frenzy ran at fever pitch during trial, when the
jury was not sequestered, was watching TV news, reading
about the prosecutor’s nomination as a judge on the
front page, and conversing out of court about the case
as four jurors admitted during post-trial hearings.
These abhorrent crimes, their devastating .impact on
so many Cape Codders, and the negative way McCowen was
repeatedly portrayed by local media made it impossible to
seat a panel of impartial, indifferent jurors in
Barnstable County. The case should have been transferred
to protect his right to a fair trial. U.S. Const. Amend.
14; Irvin v. Dowd, 317 U.S. 717, 122 (1961), When failure
to change venue abrogates this fundamental sight, due
process is violated, see Groppi v. Wisconsin, 400 U.S.
505 (1971); Rideau v. Louisiana, 373 U.S. 723 (1963).
especially when accusations are “so shacking and
repellent in the crime or the circumstances as to suggest
that community opinion might be set against the person
accused.” Commonwealth v. Blackburn, 354 Mass. 200, 204
(1968); Commonwealth v. Smith, 353 Mass. 487, 489-90
(1968). Ghastly publicity raged before, during and after
McCowen’a motion which the court tried tu handle
unsuccessfully. Tr. 3769-3770. Its denial abrogated due
-58-