So Judge Susan Garsh finally ruled that former New England Patriot Aaron Hernandez can be tried by a fair and impartial jury...in Bristol County. No surprise there. Last month, after oral arguments were given by both sides, I predicted this outcome on FOX25 television. As I saw it, with Judge Denise Casper finding that a fair and impartial jury could be empanelled in a trial for someone as notorious as James "Whitey" Bulger in June of 2013 (), and Judge George O'Toole ruling last month that a fair and impartial jury can be selected in a case as notorious as the Marathon Bombing death penalty case (), the decision to keep the Hernandez murder case in Bristol County was an all but foregone conclusion. Yes, Bulger and Tsarnaev are federal cases, and Hernandez is in state court. However, it is not unusual — indeed it is common place for lawyers to look to federal case law and precedent when similar issues arise in concurrent state and federal jurisdictions, as they did here. In fact, the Hernandez prosecutors did so to such degree that the defense accused them of plagiarizing.
Yet it wasn't just an issue of "if impartial jurors can be found for those cases, clearly they can be found for this one, too." Judge Garsh was also faced with the issue of "if not here in Bristol County, where else in Massachusetts?" The Hernandez defense team had pressed for either Worcester or Hampden (Springfield) County, but that's essentially "apples to apples." As I also told FOX25, Hernandez was a "New England Patriot," not a Fall River or New Bedford Patriot. Because of Massachusetts' obsession with their home state professional football team — indeed the entire region's obsession with it — there is likely to have been as much interest and press exposure in Agawam as there's been in Attleboro. In other words, it isn't going to matter if the case is tried in Worcester, Hampden , Franklin or Bristol County; just as many folks will have been exposed to news articles and reports in any of one of those counties as anywhere else in the Commonwealth, and since, unlike in federal court where Judge Casper and Judge O'Toole actually did have the option of moving their cases to federal courts in states outside of Massachusetts (as happened in the Oklahoma City Bombing case in ), Judge Garsh was limited to the confines of Massachusetts. In essence, she was being asked to confront a dilemma that had no viable resolution.
But was it really a dilemma to begin with? I've reminded folks many times, the issue is not whether a prospective juror has heard of the defendant, or read about the case, or even been exposed to related news reports and articles. With high profile cases such as these, in most instances jurors will have had some pretrial familiarity and/or exposure to the case — and let's face it, neither side wants a juror so ignorant or out-of-touch to appear as though he or she was living under a rock. Instead, the question is, have they formed an opinion or already made up their minds based on what they've read, seen, or heard, and ultimately, and/or regardless, can they can keep an open mind and remain fair and impartial?
In Bulger, taking into account the high probability that three out of four prospective jurors were likely to have at least read, or heard, something about the defendant or his case, Judge Casper elected to question a proportionately large pool of 750 prospective jurors (selected from Eastern Massachusetts) to increase the odds of finding 18 jurors (12 of whom would deliberate) who could be impartial. In Tsarnaev, Judge O'Toole's calculations to the same effect have resulted in him concluding he will need an unprecedented pool of some 1,200 prospective jurors, an increase not simply occasioned by the case's national and international renown, but also by the daunting task of selecting a "death qualified jury" in notoriously anti-death penalty Massachusetts. That the Bugler jury nonetheless deliberated for a full seven days before announcing its verdicts plainly validated Judge Casper's decision, and more than likely informed both Judge O'Toole's and Judge Garsh's analyses as well.
If changes of venue in Bulger, Tsarnaev, and Hernandez weren't granted, does that mean there is nothing longtime criminal defense attorneys like me can do for high profile cases we handle in Boston or elsewhere? Well, the answer is yes and no, and maybe. The defense teams in both Tsarnaev and Hernandez properly used a technique I have used before myself: employing experienced pollsters to conduct telephone polls to try to obtain empirical scientific/mathematic data to establish juror predisposition and bias. However, in Hernandez, Judge Garsh found the random sampling of four hundred prospective jurors to "fall far short of being a 'solid foundation of fact' to support a change of venue," which is unfortunately a byproduct of cost — polling is very expensive — not methodology. In Tsarnaev prosecutors appeared to have successfully argued that many of the questions were skewed towards the intended result and amounted to little more than the highly disfavored "push-polling" technique often employed by political campaigns seeking to "goose" their own numbers, which unless or until the Trial Courts decide to undertake their own independent polling (a concept worth considering) will always make defense poll results vunerable. Still, I can't help but give defense counsel credit for trying in these cases, and trying, and trying again. The fact is, any change of venue motion is the longest of long shot propositions. The strong and immediate preference is always to try the case in the community where the crime was committed. That's where proper venue lies. That's where logistics are easiest. That's where it is presumed the proverbial "jury of one's peers" is most readily identifiable. And frankly, it's where all direct and indirect stakeholders reside. Moreover, the current judicial trend and predilection is to view individual juror voir dire (1×1 questioning) as the most practical and efficient way to expose juror bias and identify impartiality (See , 561 U.S. 358, 378 (2010)), and for the most part, that approach, usually preceded by, or accompanied with submission of written questionnaires or juror surveys, is the best a seasoned criminal defense lawyer like me can hope for here in Boston, or anywhere in Massachusetts, when filing change of venue motions these days with such established precedence.
Yet the beauty of a change of venue motion is it is never a one-off proposition - the law is always evolving and the motion is always fact specific and considered under the individual circumstances. As Judge Garsh correctly said, there remains an opportunity to revisit the issue if bias and lack of impartiality is established during actual selection. So too, is it in Tsarnaev. Also, by raising the issue and pressing it forward, defense lawyers in both cases already have a ready issue for appeal, and I encourage them to keep trying (and keep thinking outside the box as lawyers did in Boston's Mattapan Massacre case, who, when denied a change of venue, asked that the jury pool be drawn, and bused in, from Worcester County). That is zealous representation, which is what all litigation attorneys are tasked with, regardless of the side they represent. What folks often lose sight of in the vitriol directed towards a defendant accused of a heinous crime is that a trial by a fair and impartial jury, wherever they may be found, is a fundamental right in a criminal case. Moreover, it is the job of criminal defense attorneys like me to do everything we can within the bounds of the law to ensure those rights are enforced. Even if a motion for change of venue seems unlikely to be granted, it still must be pressed – not just to protect the defendant's rights, but to ensure the integrity of the system upon which the public relies.
So, at the end of the day, while losing a motion to change venue may feel like "justice denied," filing and arguing the same is always a case of "justice served;" which is always a good reason to keep trying.
About the author:
Brad Bailey was a felony prosecutor in Manhattan (NY) and an Assistant
District Attorney in Middlesex County (MA) where he prosecuted murders,
sex crimes and serious narcotics trafficking cases. He went on to prosecute
federal drug crimes and the mafia/organized crime as an Assistant U.S.
Attorney for the U.S. Attorney's Office in