Navigating Prejudicial Pretrial Publicity
People v. McCrary

by Jess Brovsky-Eaker
Newsstand

Pretrial publicity was a notable issue in the 1994 murder case against O.J. Simpson. While that case resulted in a highly unusual halt to grand jury inquiries, many others with similar pretrial coverage are unsuccessful. / LAW WEEK FILE

The news media often covers sensationalized cases in-volving serial killers, but rarely does that coverage backfire for prosecutors. Colorado Attorney General John Moore and his team of prosecuting attorneys learned pretrial publicity could endanger their hopes of a 1976 conviction for the kidnapping and murder of a local waitress.

Leora Looney on Aug. 20, 1971 was reported missing as patrons and management found the small Lakewood donut shop where she worked was unattended.

Her purse was found open and her car remained parked in the lot, but Looney was not found for three days. Her nude body was discovered in a field miles away, in Weld County, and coroners reported gunshot wounds and strangulation marks on her body.

Witnesses identified Sherman McCrary and his son-in-law Carl Taylor as the most recent patrons of the shop before Looney’s disappearance. According to statements McCrary made to police, Taylor orchestrated a kidnapping and robbery at the shop while McCrary and his wife sat in the car outside. But as prosecutors were building a case against the McCrary family, the news media took the story and began running various articles prior to trial indicating that McCrary may have been involved in more than 20 killings across the country.

McCrary contended, among other objections, that a change of venue was needed to mitigate any negative press coverage circulating in the area. The trial court disagreed with his assertions, and he was convicted and sentenced to life in prison with a consecutive sentence of 30 years for the kidnapping charge.

McCrary appealed, arguing the trial court erred by denying his motion for change of venue and his motion to appoint a public opinion pollster to determine the effect of the publicity as well as for failing to dismiss several jurors because of their exposure to pretrial publicity. He also objected to the use of a photo of Looney’s strangulation marks that showed her face.

“Some of the cumulative factors to be considered by a trial court in determining whether there is such massive, pervasive and prejudicial pretrial publicity as to bias a community are: the size and type of the locale, the reputation of the victim, the revealed sources of the news stories, the specificity of the accounts of certain facts, the volume and intensity of the coverage, the extent of comment by the news reports on the facts of the case, the manner of presentation, the proximity to the time of trial and the publication of highly incriminating facts not admissible at trial,” stated the 1976 court opinion.

Because the court ruled the pretrial publicity was not prejudicial, it ruled public opinion pollsters were not needed and the trial judge handled juror dismissals appropriately. As for the photo of Looney’s strangulation marks, the court ruled it was admissible and probative in nature.

The Colorado Supreme Court concluded no reversible error existed and affirmed the trial court’s judgments. People v. McCrary has been cited more than 65 times in cases with similar elements.

This article appeared in the Nov. 9 issue of Law Week Colorado. To read other articles from that issue, order a copy online. Subscribers can request a digital PDF of the issue.