Convicted kidnapper loses venue appeal
The Montana Supreme Court rejected an appeal by a man sentenced to 50 years in prison for the May 2006 abduction of an intoxicated Whitefish woman in Bigfork.
Charles Devlin, 59, was denied a change of venue from Lake County District Court for a bail-jumping charge. He entered into a guilty plea agreement with prosecutors but later appealed the denial of his motion.
Devlin was also charged with kidnapping, DUI, no insurance and obstructing a police officer. A jury found him guilty of the kidnapping and obstruction charges but not guilty of the other two charges.
He was sentenced to 50 years for the kidnapping and obstruction charges and 20 years with 15 suspended for jumping bail. The sentences were to be served concurrently. He will not be eligible for parole until he is 83.
In his appeal, Devlin claimed newspaper articles in the Polson Lake County Leader created “inaccurate,” “inflammatory” and “prejudicial” pretrial publicity.
In particular, Devlin cited an Aug. 31, 2006, article that reported he had “run up a $17,816 medical bill which comes at taxpayer expense” and contained assertions that Devlin had made repeated “false” medical complaints.
The article also quoted Dr. Stephen Irwin, the Lake County jail physician, as labeling Devlin “a manipulator supreme” and “a sociopath working the system every way possible.”
The supreme court, however, noted in its Jan. 27 ruling that “the latter portion of the article reported Devlin’s side of the story.” The article, for example, “reported Devlin’s explanation that his past crimes were attributable to post-traumatic stress disorder” and “that the pending charges against him were ‘trumped up’ and ‘inflated.’”
After Lake County District Court Judge Kim Christopher denied Devlin’s motion for a change of venue, she granted his request to conduct individual voir dire of prospective jurors in the bail-jumping trial.
But shortly after the first juror said she had learned about Devlin’s case from the newspaper and TV, Devlin changed his plea to guilty pursuant to a plea agreement.
The supreme court cited precedent cases in which defendants claimed the media prevented them from getting a fair trial. The court has ruled in the past that reporting factual accounts, trial proceedings and even background criminal history may not be inflammatory.
“The point to be taken from these cases is that the pertinent question in determining whether publicity is ‘inflammatory’ is not simply whether the media reports contain ‘editorializing,’ whether they were ‘calculated’ to achieve a sinister purpose, or whether they report ‘factual’ information,” the supreme court said. “Although these are relevant factors, the focus must be on the publicity’s likely effect on the jury pool.”
Devlin failed to meet this standard, the supreme court said, because he failed to present any evidence concerning the size of the jury pool, the readership of the Lake County Leader and Bigfork Eagle, and the size of radio and TV audiences.
As for the manner in which the Lake County Leader reported Devlin’s case, the supreme court provided some cautionary advice.
“Yet, while we do not condone the sort of character attack Dr. Irwin provided to the Leader, the media’s regurgitation of such pontification from willing and opinionated talking heads — a price we pay for a free press — is not inflammatory per se,” the court said.