When trying to decide whether Daniel Ehrlick Jr. and Melissa Jenkins can get fair trials in Ada County, 4th District Judge Darla Williamson went to a uniquely qualified source - the citizens who recently qualified for jury service.
And though 86 percent of the 210 people who returned the survey said they had discussed, read about or heard about the cases, 57 percent of those said they could put aside what they'd heard and make a decision solely based evidence presented at trial.
Williamson decided that the best way to tell if pre-trial publicity was a problem would be during individual interviews during the jury selection process - known as "voir dire" - which means "to tell the truth."
"The Court is confident that through a thorough and in-depth voir dire process a fair and unbiased jury can be selected in Ada County," Williamson wrote in a July 30 order denying Ehrlick's request for change of venue. Ehrlick and Jenkins are facing separate trials in the murder of Jenkins' 8-year-old son, Robert Manwill.
Williamson has said that if she determines through these interviews that an impartial jury can't be selected, she would reconsider the request to move the trials.
Attorneys for both Ehrlick and Jenkins claim that news reports of the search for Robert last summer, the discovery of his death, and continuing coverage of the murder charges have made it impossible to pick an impartial jury.
The boy's reported disappearance on July 23, 2009, sparked a communitywide search that included more than 2,300 volunteers and the FBI and garnered national attention. It ended in grief about two weeks later when his battered body was found near Kuna in an irrigation canal.
Both Jenkins and Ehrlick are charged with first-degree murder. Prosecutors say Ehrlick beat the boy in a pattern of "escalating physical violence" that ended in a fatal head injury, and that Jenkins knew about the abuse, hid it from state child protection workers and did nothing to stop it.
Jenkins' attorneys filed their motion to change venue in November and Ehrlick's team support that motion, according to court records. Last week, attorneys for both suspects told Williamson their defense strategy was simple - their clients "didn't do it."
One of Ehrlick's attorneys, public defender Amil Myshin, complained to Williamson that only one of the Idaho Statesman's numerous stories about the case since last summer was "positive" toward Ehrlick, and that was only when Myshin criticized the prosecutor's case as "one of the thinnest first-degree murder cases I have seen in years."
Myshin also complained about the anonymous commenters on the Statesman website, saying he feared that commenters who say they are convinced of Ehrlick's guilt could lie about being impartial just to get on the jury.
Williamson wrote in the order that while she agreed that some of the comments appeared "inflammatory," she questioned whether such user-posted comments "were publicity, as they are not written by the news agency itself."
"The court also notes there is no way to tell if the individuals who posted the comments are even from Ada County," she wrote.
Williamson also wrote that previous Idaho cases have established that pretrial publicity itself does not warrant a change of venue.
CHANGE OF VENUE IS RARE
It is unusual for local trials to be moved out - or out-of-town juries shipped in - due to publicity, but it does happen occasionally.
The last time it occurred in Ada County was in 2007, when 4th District Judge Thomas Neville bused in a jury from Gooding County for the second first-degree murder trial for Erick Virgil Hall.
Hall previously had been given the death penalty for the first-degree murder of visiting flight attendant Lynn Henneman, who was abducted and killed on the Greenbelt in 2000.
When a second trial was set to begin for the 2003 death of Cheryl Ann Hanlon, the judge and lawyers on both sides of the case agreed the jury should not know about the previous murder conviction.
Jury selection began, and the Statesman ran a front-page headline referring to Hall's previous conviction.
Neville said the headline was too prominent for potential jurors to avoid, even though they had been admonished not to read or listen to news stories about Hall. So he brought in the Gooding County jury, and that panel eventually found Hall guilty of first-degree murder and gave him the death penalty.
Ada County Prosecutor Greg Bower estimated at the time of the second Hall trial that he had to move four or five trials out of Ada County because of pretrial publicity since he took over as prosecutor in 1982.
Boise State University Criminal Justice Professor Craig Hemmens said then that the whole point of the jury selection process is "to find jurors that are competent, that have the necessary intelligence to be jurors.
"The system is set up to determine if they are unbiased, not if they are ignorant of current events. They should be given that chance.
"Otherwise, we would never have a criminal trial anywhere a high-profile crime occurs," Hemmens said. "They put O.J. Simpson on trial for murder in Los Angeles, and they did not expect to find 12 people who didn't know anything about it."
Patrick Orr: 373-6619