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.

Nearly fifty years ago the same Court of Appeals described the claims raised by the defense in the Haldeman case as follows:

The unveiling of the conspiracy which is the central element of this case received extraordinarily heavy coverage in both national and local news media. In addition, the media fully covered allegations of wrongdoing at the upper levels of the Nixon Administration in matters unrelated to the Watergate break-in. Appellants contend that this pretrial publicity was so pervasive and so harmful to them that it must be assumed they could not receive a fair adjudication of the charges against them at the time and in the place at which they were tried. Alternatively, they contend that the voir dire of veniremen conducted by the District Court was insufficiently probing to assure empaneling of an impartial jury.

As a general proposition, that is essentially the same claim made now by January 6 defendants about trials being held in the District of Columbia.

Here is what the Appeals Court said in Haldeman when rejecting that claim as grounds for granting a change of venue and a new trial:

It is fundamental that "the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors…." To be "indifferent" a juror need not be ignorant: “It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. * * *”…. [A] defendant who claims he was denied a fair trial because the jury was not sufficiently "indifferent" generally must sustain that claim "'not as a matter of speculation but as a demonstrable reality.'"

From that language you can see the source of the question posed by D.C. judges to potential jurors that I set forth above — in 1976 it was enough to satisfy the D.C. Appeals Court if a prospective juror said “Yes, I can set aside my opinions and render a verdict based only on the evidence presented in court.” All the other relevant facts about the juror fall away as a consequence of that answer.

The idea that juror can set aside opinions they have already formed — “I think he’s guilty, but I’ll vote not guilty if the evidence I hear doesn’t fit my preconceptions” — is a “legal fiction” that allows the impression that there was “due process” when the underlying reality is that the defendant did not get an panel of 12 impartial jurors that the Sixth Amendment guarantees.

This fiction becomes a farce when applied to the factual realities of trials in the District of Columbia involving January 6 defendants. In 2020, 92% of those who voted in the election wanted Joe Biden to replace Donald Trump as President. On January 6 more than 100,000 people came to D.C. wanting the opposite of that. Somewhere in the range of 1500 people in the second group have now faced criminal charges and their only option to exercise their constitutionally guaranteed right to a jury trial is to select among 80 or so members of the former group when asserting their innocence.

Why didn’t the district judges recognize this practical reality and agree to move January 6 trials outside of D.C.? The answer to that question is also found in the Haldeman decision from 1976:

[W]e hold that the District Court was correct to follow this circuit's well established procedure by refusing appellants' pre-voir dire requests for a … change of venue….

As the Supreme Court stated in Nebraska Press Ass'n v. Stuart, (1976), "[P]retrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial."…Our conclusion that the voir dire was adequate does not end our review of the jury selection….

As is our duty, we have reviewed the record to ascertain for ourselves whether appellants were tried by an unbiased jury capable of basing its verdict solely on the evidence introduced at trial. Appellants appear to concede this ultimate conclusion, for they never suggest that the jury was actually prejudiced against them or that its verdict rested on anything other than the overwhelming evidence of their guilt. On the basis of our own review, we have no doubt that the jury was impartial.

The first paragraph above means in the D.C. Circuit the trial judge must first conduct a voir dire examination of potential jurors before granting a change of venue motion. Such motions should only be granted when 12 jurors cannot be found who meet the low bar qualification for being “impartial.”

The second paragraph means that “pervasive and concentrated” pretrial publicity in a criminal case does not automatically justify a change of venue — see the paragraph above for what that means.

And the third paragraph means that if the evidence against the defendant is overwhelming, it doesn’t matter whether the jury was biased or unbiased as the outcome would have likely been the same either way.

So, to all of those in the “Peanut Gallery” faulting defense counsel for failing to get trials moved out of Washington D.C., now you can see the brick wall that such efforts have long been up against. As noted above, in the Neely case decided last week the Appeals Court has reaffirmed its nearly 50 year old views set forth in Haldeman.

How can this problem be solved? Only by the Supreme Court telling the D.C. Circuit Court of Appeals that its Haldeman decision is outdated in the modern world of instance mass communication where the “media” no longer consists of three television networks, NPR, and a small number of newspapers with national readership as was the case in 1976. It would require the Supreme Court to expand its views expressed even before Haldeman that only the most pervasive and damaging pretrial publicity could be presumed to have created an atmosphere in the community where a defendant could not receive a fair trial.

The Supreme Court case law in this regard comes down to three decisions in state court cases — Irwin v. Dowd in 1961, Rideau v. Louisiana in 1963, and Sheppard v. Maxwell in 1966.

All efforts since the 1960s to compare other cases — including January 6 cases — to these three decisions have been rejected in nearly every instance.

Irwin v. Dowd was a case involving six murders in Vanderbaugh County, Indiana, where the City of Evansville is located. Shortly after the defendant was arrested, the Vanderbaugh County prosecutor and Evansville Police held a press conference during which they claimed the defendant had confessed to the murders. On a defense motion the trial was moved to Gibson County, but Gibson was a county adjacent to Vanderbaugh and was exposed to all the same pretrial publicity as was Vanderbaugh County. The total population of Gibson County in 1960 was only 28,000 people.

Of the potential jurors examined, 268 of 430 were dismissed because of their firm belief in the defendant’s guilt. But 8 of the 12 jurors ultimately seated expressed an opinion that the defendant was guilty, but said they could set that opinion aside and judge the case on the evidence presented. How thoughtful of them.

… 370 prospective jurors or almost 90% of those examined … entertained some opinion as to guilt — ranging in intensity from mere suspicion to absolute certainty. A number admitted that, if they were in the accused's place in the dock and he in theirs on the jury with their opinions, they would not want him on a jury.

The Supreme Court reversed the conviction in the case based on the pretrial publicity — specific to the defendant himself — that made finding an impartial jury in Gibson County impossible.

Rideau v. Louisiana involved a bank robbery, kidnapping and murder in Lake Charles, Louisiana. The population of Lake Charles in 1960 was approximately 63,000.

The day after the defendants arrest, a “movie” crew arrived at the jail and filmed and “interview” between the defendant and the Sheriff. The “interview” lasted approximately 20 minutes, during which the defendant confessed to the bank robbery, kidnapping, and murder. Later that same day, and each of the two following days, the interview was broadcast by the local television station.

The defendant’s motion for a change of venue was denied, and he was convicted and sentenced to death. In reversing his conviction, the Supreme Court stated:

What the people of Calcasieu Parish saw on their television sets was Rideau, in jail, flanked by the sheriff and two state troopers, admitting in detail the commission of the robbery, kidnapping, and murder, in response to leading questions by the sheriff. The record fails to show whose idea it was to make the sound film, and broadcast it over the local television station, but we know from the conceded circumstances that the plan was carried out with the active cooperation and participation of the local law enforcement officers….

But we do not hesitate to hold, without pausing to examine a particularized transcript of the voir dire examination of the members of the jury, that due process of law in this case required a trial before a jury drawn from a community of people who had not seen and heard Rideau's televised "interview."… "Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death."

Important there is the reference that no amount of voir dire by the trial judge — questioning of prospective jurors — would have produced an acceptable jury given the prejudicial nature of the pretrial publicity. Again, however, the publicity was specific as to the charged defendant — which has become a key focus of the court decisions that have followed for 60 years.

Sheppard v. Maxwell is the famous trial of Dr. Sam Sheppard who was accused of murdering his wife in a community outside Cleveland, Ohio.

The prejudicial events from the day of Sheppard’s arrest until the end of his trial are too numerous to set forth here. The entire affair was a circus sideshow, capped off by the actual involvement of the media in the trial, described as follows:

Twenty-five days before the case was set, 75 veniremen were called as prospective jurors. All three Cleveland newspapers published the names and addresses of the veniremen….

The courtroom in which the trial was held measured 26 by 48 feet. A long temporary table was set up inside the bar, in back of the single counsel table. It ran the width of the courtroom, parallel to the bar railing, with one end less than three feet from the jury box. Approximately 20 representatives of newspapers and wire services were assigned seats at this table by the court.

Behind the bar railing there were four rows of benches…. The first row was occupied by representatives of television and radio stations, and the second and third rows by reporters from out-of-town newspapers and magazines….

On the sidewalk and steps in front of the courthouse, television and newsreel cameras were occasionally used to take motion pictures of the participants in the trial, including the jury and the judge…. This group photographed the prospective jurors during selection of the jury. After the trial opened, the witnesses, counsel, and jurors were photographed and televised whenever they entered or left the courtroom….

All of these arrangements with the news media and their massive coverage of the trial continued during the entire nine weeks of the trial. The courtroom remained crowded to capacity with representatives of news media. Their movement in and out of the courtroom often caused so much confusion that, despite the loudspeaker system installed in the courtroom, it was difficult for the witnesses and counsel to be heard….

There is much more in the Supreme Court’s opinion reversing Sheppard’s conviction. But, again, a key factor in the pretrial publicity was that it focused on Sheppard himself.

The DC Judges all make note of the fact that the pretrial publicity about January 6 has focused on the event itself, without any one defendant being the subject of extensive prejudicial coverage to the degree that was the case in Irwin, Rideau, and Sheppard. There is no recognition of the concept of “collective” prejudice against the pro-Trump protesters by the pro-Biden juror pool.

More recently, the Supreme Court has twiced faced the question of prejudicial pretrial publicity and the existence of presumed bias that makes picking a fair jury impossible — the ENRON cases in Houston and the Boston Marathon Bomber case in Boston.

In United States v. Skilling, the question was whether the collapse of ENRON, and its impact on the financial well-being of tens of thousands of residents of Houston— combined with press coverage of ENRON — made it impossible for ENRON executives to get a fair trial in federal court in Houston, ENRON’s headquarters. The Court looked back upon the cases cited above, holding:

In each of these cases, we overturned a “conviction obtained in a trial atmosphere that [was] utterly corrupted by press coverage”; our decisions, however, “cannot be made to stand for the proposition that juror exposure to … news accounts of the crime … alone presumptively deprives the defendant of due process.”… [But] prominence does not necessarily produce prejudice, and juror impartiality, we have reiterated, does not require ignorance…. A presumption of prejudice, our decisions indicate, attends only the extreme case.

The Court noted that the ENRON publicity did not include the broadcast or publication of confessions as was the case in Irwin and Rideau. The Court also noted that Houston — with a population in excess of 4 million people — was not comparable to the small communities in its earlier decisions where it found a presumption of prejudice so pervasive as to make a fair trial impossible.

More recently, the Court reviewed a claim of presumed prejudice from pretrial publicity in the Boston Marathon bomber case — United States v Tsarnev.

We have repeatedly said that jury selection falls “ ‘particularly within the province of the trial judge…. That is so because a trial “judge’s appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record,” such as a “prospective juror’s inflection, sincerity, demeanor, candor, body language, and apprehension of duty.”…

Based on “years” of trial experience, the court concluded that jurors who came in with some prior knowledge would still be able to act impartially and “hold the government to its proof.” The District Court’s decision was reasonable and well within its discretion, as our precedents make clear.

The District Court summoned an expanded jury pool of 1,373 prospective jurors and used the 100- question juror form to cull that down to 256. The questionnaire asked prospective jurors what media sources they followed, how much they consumed, whether they had ever commented on the bombings in letters, calls, or online posts, and, most pointedly, whether any of that information had caused the prospective juror to form an opinion about Dzhokhar’s guilt or punishment.

The court then subjected those 256 prospective jurors to three weeks of individualized voir dire in which the court and both parties had the opportunity to ask additional questions and probe for bias.

The District Court also provided “ ‘emphatic and clear instructions on the sworn duty of each juror to decide the issues only on evidence presented in open court….’” In sum, the court’s jury selection process was both eminently reasonable and wholly consistent with this Court’s precedents.

What is noteworthy here is that the Court didn’t even deem it necessary to deal with the issue of “presumed” prejudice. It found the trial court judge spent much time during the jury selection process evaluating each jurors exposure to pretrial publicity and the effect that exposure had on the juror’s ability to be impartial.

I have not been shy about voicing my opinion that fair-minded jurors can’t be found in Washington D.C. for January 6 cases. The Judges have approached the task of screening out juror bias — based on the Supreme Court precedents — by focusing on the lack of exposure by jurors to prejudicial information about individually named defendants — the circumstance in the those Supreme Court cases that led to a finding that the defendants in Irwin, Rideau, and Sheppard did not get fair trials.

“Q: In what have seen or read about the events of January 6, are you familiar with anything concerning “John/Jane Doe” who is the defendant in this case?

With only a couple of high profile exceptions, the answer to that question is almost invariably “No.” That answer effectively distinguishes the individual January 6 defendants from the defendants in Irwin, Rideau, Sheppard, Skilling, and Tsarnev where the pretrial publicity focused on them specifically. This is one the primary reasons expressed by district judges for why they no reason to infer a presumption of prejudice by D.C. jurors — in their view — to January 6 defendants.

But, my view is that D.C. jurors come into the courthouse with many misconceptions and false beliefs about the nature of the protesters who came to D.C. on January 6. Those misconceptions/beliefs are not the kinds of biases that are adequately screened out by the voir dire process no matter how comprehensively done by the district judge. This became my view based on one incident questioning one potential juror in the second Oath Keeper trial.

Late in the third day of jury selection, a gray-haired retired gentleman came into the courtroom and took the seat where witnesses normally sit. He had previously submitted an completed questionnaire where he had answered more than 100 questions about himself, what he knew about January 6, how and from what sources he consumed news, etc. He said he knew something about the Oath Keepers from the media coverage, but nothing about them prior to January 6. He knew from the coverage that they were accused of having gone into the Capitol and been part of the effort to stop Congress from certifying the vote. But he hadn’t watched much in the way of videos, didn’t know anything about the four Oath Keeper members on trial, didn’t recognize any of their names, and wasn’t familiar with the specific allegations of what they had done.

In response to the magic question from the judge he said he could set aside any opinions he might have formed and render a verdict in the case based only on the evidence presented in court and the law as explained to him by the judge.

The prosecutor then asked a few questions but this was a juror that seemed to be of the kind favorable to the Government so the questions weren’t too probing.

Next, the four defense attorneys were allowed to question the juror one at a time. In this particular round — we rotated — I was going last of the four. The questioning by my three co-counsel covered all the usual issues, and the answers from the juror were common and consistent with what we had heard from dozens of other jurors before him. He knew what had happened, he followed the media coverage on January 6 and in the days and weeks afterward. He knew the protesters were Trump supporters who believed Trump had won the election and came to D.C. to prevent Congress from certifying the election, etc. There was nothing controversial in any of his answers — not the kinds of comments that the judge had already recognized as evidence of bias in other jurors who had been excused.

When it was my turn there really wasn’t much left to cover. But I just had a feeling that we were missing something with this older gentleman. All his questions reflected someone who was retired and followed news in the media on a consistent basis and understood the reporting that he was consuming at a level deeper than just a casual observer. Then a question occurred to me to ask him:

Q: “You said earlier that you didn’t know much of anything about the Oath Keeper organization prior to the coverage of actions allegedly taken by various members on January 6. Based on what you have read about them, do you have a view on what the nature of the Oath Keepers are as an organization?”

A: “Yes, my understanding is that they are a white supremacist militia.”

I can’t say I was totally shocked by the answer because so much coverage in the national media of the Oath Keepers related to January 6 described them in that way. They have been the subject of an entire day of proceedings in the January 6 Committee only weeks earlier.

I didn’t even have a follow-up question in mind. I looked at the Judge — who had already found that this gentleman was sufficiently impartial so as to pass muster with the Judge — and simply gestured in the fashion of “What now?”

The Judge knew based on nearly 2 years of pretrial proceedings up to that point that the Oath Keepers were not a “white supremacist” group. But the defense was now in the position — if this juror remained — of trying to convince him of that when a defendant in a criminal case has no obligation to convince the jury of anything.

The Prosecution STILL tried to save this juror from a challenge by the defense for bias. In the face of this clear mistaken factual belief that would have been extraordinarily prejudicial to the defendants, DOJ argued that the defense should be forced to use one of its peremptory challenges to remove him from the jury.

It has always been the undisclosed bias that the defense is unaware of that infects the jury trial in the January 6 case. It is the risk of the undisclosed bias that has defendants and defense attorneys opting for bench trials rather than jury trials in January 6 cases — even when you know going in that the judge has already convicted several defendants in many earlier trials on the same charges.

For nearly three years of trials the Government has described the events of January 6 as unique in our nation’s history. They have claimed that it broke a 220+ year tradition involving the peaceful transfer of power.

It seems to me that a corollary of such claims should be that trials of individuals charged with crimes in connection therewith should qualify as the “extreme case” mentioned by the Supreme Court in Skilling — “A presumption of prejudice, our decisions indicate, attends only the extreme case.”