If Skilling Can't Get A Change Of Venue, Who Can? Salvaging Common Law Implied Bias Principles from the Wreckage of the Constitutional Pretrial Publicity Standard

Fifty years ago the United States Supreme Court issued three landmark decisions recognizing local pretrial publicity and community hostility in a charging venue as extraneous forces that can impact jurors’ ability to be constitutionally impartial. It later held that local prejudice can be so incompatible with a defendant’s impartial jury rights that a trial in that community violates due process and may require a change in venue. Paradoxically, successful venue challenges under this federal constitutional pretrial publicity standard have become increasingly rare even as the volume, sensationalism, and pervasiveness of media coverage of criminal trials have increased with near-universal television and internet access in the United States. This article tracks the Supreme Court’s effort and ultimate failure to develop a coherent jurisprudence addressing the effects of pretrial publicity on juror impartiality in a media-saturated society; an effort that has culminated in a systematic dismantling of the pretrial publicity standard and resulted in a fragmented and highly malleable change of venue jurisprudence under a “totality of the circumstances” test that rarely results in a change of venue, even in the most notorious and highly-publicized of contemporary cases like the prosecution of Jeffrey Skilling for his Enron-related offenses. A few courts and commentators have argued that the extent of the harm caused by a crime in a venue should be an additional factor (along with pretrial publicity) that informs a federal trial court’s change of venue analysis under Federal Rule of Criminal Procedure 21 and/or the constitutional totality of the circumstances inquiry. This article agrees that the pretrial publicity standard does not adequately address the effect of widespread community harm on juror bias. However, it disagrees with the assumption that the Rule 21 inquiry is co-extensive with the constitutional inquiry and that grafting one more normative factor onto an already highly subjective multi-factor test will provide any more protection to the impartial jury rights of high-profile defendants or result in a more coherent change of venue jurisprudence. Rather, this article argues that a deeper problem with the current change of venue standard is that it has displaced common law principles of jury bias that should lead to a different analysis in cases involving contemporary crimes that bear little resemblance to the cases that gave rise to the constitutional change of venue standard. Specifically, crimes that cause or threaten catastrophic harm in the charging venue and create a large victim class in the community of people with a direct interest – pecuniary, emotional, or otherwise – in the outcome of the case. In those cases, this article argues, a natural extension of the common law doctrine of implied juror bias to the community requires a conclusive presumption of community-wide bias warranting a change of venue. Part I of this article discusses common law principles of jury bias. Part II tracks the evolution of the Court’s pretrial publicity standard, with a particular focus on the impartial jury/free press concerns that initially drove this jurisprudence, up to its most recent consideration of this area of law in United States v. Skilling. Part III explains why common law principles of implied bias warrant recognizing a conclusive presumption of community-wide bias in a discrete class of modern high-impact cases to fully protect the Sixth Amendment constitutional impartial jury guarantee.