The state court decision concerning venue was neither contrary to nor an
unreasonable application of federal law as determined by the United States
Supreme Court. First, it is clear that the pretrial publicity in this case does
not merit a presumption of prejudice. Although there was significant media
attention when Foley was arrested, when the bodies were discovered in the septic
tank, and when there were significant developments in the case, this was not one
of the rare cases tried in a circus-like atmosphere. There is nothing in the
record to suggest any contact between the media and the jury during the trial.
The dissent saw things a little differently. While the majority opinion gave a general overview of the juror responses and the trial court's curative instructions, the dissent quoted to the record and to the lower court's opinion with the exact words and statements of the jurors, which seemed to indicate their bias. Here's the dissent's conclusion:
Accordingly, I believe the district court gave short shrift to the actual,
un-rehabilitated prejudice that many of Foley's jurors possessed. Foley's case
is unique in that most of the seated jurors--not simply a majority of those on
the venire--were aware not only of the circumstances surrounding the two murders
on which they were to pass judgment, but also of the four other murders with
which Foley was accused. In a small, rural county such as Laurel, it strains
credulity to think that facts and rumors swirling about Foley's gruesome
quadruple murder would not have significantly tainted his double-murder jury. [
] This was borne out by the number of potential jurors dismissed immediately
from the venire, as well as by the voir dire statements of jurors whom Foley
challenged for cause but who were ultimately seated by the trial judge. I cannot
deem "reasonable" the Kentucky Supreme Court's contention that these jurors had
been "rehabilitated" on voir dire.
UPDATE: Apparently there are a few unanimous decisions in the Sixth Circuit. (Volokh)
