“Through me you pass into the city of woe…abandon all hope, you who enter here!”
Inferno by Dante Alighieri (1265 – 1321)
“We gotta get out of this place, if it’s the last thing we ever do!”
The Animals (1965)
The Sixth Amendment to the U.S. Constitution guarantees a criminal defendant’s right to trial by an impartial jury. It also provides that trial should take place in “the state and district wherein the crime shall have been committed.”
When it is virtually impossible for an accused to get an impartial jury in that state or district, Federal Rule of Criminal Procedure 21(a) provides that, upon a defendant’s motion for change of venue, the court “must transfer” the proceeding to another district “if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial jury there.” (RELATED: Trump’s Inferno)
Following his federal indictment in the District of Columbia for election fraud, Donald Trump complained on Truth Social that he can’t get a fair trial in Washington, where public sentiment is overwhelmingly against him. In support of that position, commentators have pointed out that, in the 2020 election in D.C., Joe Biden received 317,323 votes to Trump’s 18,586.
So, if Trump’s lawyers move for a change of venue, would that voting disparity be sufficient proof for the court to grant the motion?
Hardly.
The required showing for a change of venue is to demonstrate that it will be almost impossible to find 12 impartial jurors who have not formed firm and settled opinions regarding the guilt or innocence of the defendant.
So, if Trump files a motion for a change of venue out of the District of Columbia, how will Judge Tanya Chutkan go about ruling on it?
If she is like most judges, Judge Chutkan will hold the motion in abeyance until jury selection. The practical rationale for doing this is that you don’t know if a fair and impartial jury can’t be seated until you actually try and fail. On the other hand, if a fair and impartial jury is selected, then the motion will be denied as moot.
But how you may ask, could 12 fair and impartial jurors ever be found in the anti-Trump Washington fever swamp?
The process for doing so is much easier than you might think.
In jury selection, Trump will have 10 peremptory challenges that his lawyers will use to strike potential jurors without having to state a reason. Moreover, he will have unlimited challenges for demonstrated cause, such as bias, prejudice, or prior knowledge that would preclude a potential juror’s fair and impartial evaluation of the evidence to be presented in court. (READ MORE: Georgia Levels Yet Another Indictment Against Trump)
With a jury panel drawn from the District of Columbia, the defense will undoubtedly and quickly use up its peremptory challenges. Therefore, the defense’s ability to strike potential jurors for cause will be a key factor in determining the composition of the jury.
There are different methods for picking a jury. One way is for potential jurors to be examined by the lawyers. Another way is for the judge to question the jury panel collectively with follow-up questions by the prosecution and defense. These are but examples of the many approaches to jury selection which are as varied as the judges overseeing the process.
But, in every form of jury selection, the potential jurors will be asked this magic question: “If selected to serve on this jury, could you put aside your feelings and any preconceived beliefs about the case and be a fair and impartial juror who will render a verdict based solely on the evidence presented in this courtroom and the judge’s instructions on the law?”
This will be asked no matter how extreme or definite a potential juror’s previous answers may have been.
For example, the potential juror may have expressed feelings of intense hatred for the defendant or say that the defendant must be guilty because he has been charged with a crime. Such a statement should disqualify the speaker from serving on the jury. But, in such circumstances, many — if not most — judges will not grant a strike for cause. Instead, they will seek to rehabilitate the potential juror by asking the magic question. (READ MORE: Third Trump Indictment Is a Replay of History)
And it frequently works as intended. After all, who is ever going to explicitly concede that he or she can’t be fair and impartial? The human ego doesn’t work that way. Almost invariably, a demonstrably biased potential juror will respond, “Of course, I can be fair!” And, with that less-than-credible answer, the trial judge will have the facially legal basis needed to deny the motion to strike and seat the respondent on the jury.
Couple that bit of legal legerdemain with the distinct possibility that other potential jurors who detest Trump may feign impartiality. This type of individual wants to serve on the jury in order to “do justice” by sticking it to the defendant. They are willing to conceal their true feelings and lie their way onto the jury, and are not unusual in high-profile cases in which public opinion is against the defendant.
These are by no means the only pitfalls facing Trump in jury selection. But they are examples of the many ways in which a purportedly “fair and impartial” jury of Trump haters could be empaneled, and his change of venue motion denied.
But what about an appellate review? Couldn’t a higher court step in and prevent the case from going to trial before such an unfit jury?
Under procedural rules, denial of a change of venue motion is not appealable before trial unless the trial court grants a certificate of immediate review. Otherwise, the denial can only be appealed after the defendant has been tried and convicted.
Presumably, given Judge Chutkan’s demonstrated hostility to the Jan. 6 defendants who have appeared before her and her complaints on the record that the persons who instigated the riot have not been charged, she would not allow pre-trial appellate review of her denial of Trump’s change of venue motion.
So, if Trump was convicted, what chance would there be of having the verdict reversed due to jury bias?
On issues such as alleged improper jury selection, appellate courts have only the written record of the trial court proceedings. Consequently, an appellate court would most likely defer to the determination by the trial judge as to the impartiality of the jurors.
Why? Because the trial judge would have directly observed the manner and demeanor of the jurors during jury selection and trial. As such, the trial judge would be deemed to have been in a better position than the appellate court to assess the sincerity and credibility of the jurors’ claims of fairness and impartiality. This is why, almost invariably, appellate courts defer to the trial judge’s evaluation of the jury’s fairness and fitness to serve.
So, as you read and listen to the excellent legal analyses and opinions by the learned law school professors and legal scholars about why Trump is entitled to a change of venue, keep in mind what you have just read.
It is a grunt-level estimate of the situation derived from 50 years of trying criminal and civil cases in federal and state courts. Based on that painfully earned practical education, it appears that there is a better than even chance that, if the federal election fraud case goes to trial in the District of Columbia, President Trump will be tried before a “fair and impartial” jury who loathe him and would just as soon skip the legal mumbo jumbo to get down to the exhilarating business of packing him off to the gulag.
George Parry is a former federal and state prosecutor. He blogs at knowledgeisgood.net.
