The D.C. Appeals Court -- Again -- Finds No Basis To Change Venue for January 6 Trials

A 1973 Watergate case remains the law in the D.C.Circuit, and only the Supreme Court can fix this problem.

“Judge: No matter what you might have read in the media or on social media, and no matter what video you might have seen in the news coverage or on websites like YouTube or TikTok about January 6, are you able to set all that aside and render a verdict in this case based solely on the evidence presented in court and the law as it applies to this case based on the instructions I will give to you?

Prospective Juror: Yes.”

If you were a prospective juror and wanted to sit on a jury of a high profile case, would the answer to that question posed by the judge be self-evident? Would you expect that if you answered that question “No” that the judge would allow you to serve as a juror on the case?

Yet this is usually the last question posed by the Judge to a prospective juror after a few minutes of exploring the juror’s background and knowledge about the case. If the juror gets this far, and answers this last question “correctly,” that is usually all it takes for the judge to “pass” the juror for “bias.” The attorneys then have a chance to ask questions to see if they can uncover more in the way of juror honesty than was the case with the juror’s answers to the questions posed by the judge.

Sometimes this additional questioning will draw out more information than the juror offered up to that point. Sometimes this additional information is enough to get the judge to reconsider his/her earlier view regarding the juror being sufficiently “unbiased.” But too often a juror who answers this last question correctly becomes “bullet proof” with regard to efforts by the defense to get a juror removed for bias.

Last week in United States v. Neely, the Court of Appeals for the District of Columbia, for the second time, sustained the denial of a motion to change venue while affirming the conviction of a January 6 defendant. For the second time the Court re-affirmed its seminal case on this question, United States v. Haldeman, a 1976 decision involving H.R. Haldeman, Chief of Staff to Pres. Richard Nixon, convicted in connection with the Watergate burglary.