Why Judges Hate Relocating Trials Like Aaron Hernandez’s

Associated Press

Judges have been pretty loathe to move the trial locations of Massachusetts’ most famous accused criminals out of the counties where the alleged crimes took place of late. There’s a long history that explains why.

On Wednesday, a judge denied the defense’s request to move the murder trial of former Patriots tight end Aaron Hernandez out of Bristol County. In September, a federal judge refused to move Dzhokhar Tsarnaev’s trial out of the city where he is alleged to have set off a bomb. In both cases, defense lawyers argued that pre-trial media coverage had so prejudiced the pool of potential jurors here that the defendant would be unable to get a fair trial.

“The relentless avalanche of prejudicial publicity—the like of which have not been seen in this Commonwealth—has had a devastating effect on the jury pool in Bristol County,” Hernandez’s lawyers wrote.

But in general, judges are unlikely to move a trial out of the county or state where a crime was allegedly committed. Our aversion to it dates all the way to the American Revolution. One of Britain’s “Intolerable Acts,” passed to punish the disobedient colonists of Massachusetts in the wake of the Boston Tea Party, allowed the governor to move trials of accused royal officials back to Great Britain if he felt they couldn’t get a fair shake here. Thomas Jefferson railed against this practice in the Declaration of Independence, and our Constitution now explicitly forbids it. Article III holds that a criminal trial “shall be held in the State where the said Crimes shall have been committed.”

Since then, the Supreme Court has found that there are exceptions to this rule. Sometimes, holding a trial in the community where a sensational crime was committed would deny a defendant’s Fifth Amendment guarantee to due process. In those cases, the Court has decided, the Constitution is in conflict with itself. The right to a fair trial gets priority. Thus, judges sometimes allow trials to be moved elsewhere within a state and, in extreme federal cases, out of state. Oklahoma City bomber Timothy McVeigh stood trial in Colorado. (Some good it did him.)

Lawyers for both Tsarnaev and Hernandez argued that their clients meet these extremely high standards required to move a trial. Neither, they argued, could find a pool of impartial jurors to try their case. Hernandez’s lawyers conducted a poll of Bristol County to make their point.

“The effect of all this media coverage is apparent in the poll’s most alarming finding: more than 7 in 10 Bristol County residents believe Aaron Hernandez is definitely or probably guilty of the murder of Odin Lloyd.”

In both cases, a judge disagreed.

“Pervasive, adverse pretrial publicity does not inevitably require a change of venue,” Hernandez’s judge wrote in her decision. “Hernandez has not demonstrated by a solid foundation of fact that there exists in Bristol County so great a prejudice against him that he cannot obtain a fair and impartial trial there.”

In other words, yeah, most of the jury pool is prejudiced. But defense lawyers will have the chance to interview jurors and find those three in 10 who don’t have an opinion.

In both cases, judges argued that the pretrial publicity had received so much national attention that moving either case elsewhere wouldn’t much affect its fairness.

“It is doubtful whether a jury could be selected anywhere in the country whose members were wholly unaware of the Marathon bombings,” Tsarnaev’s judge said. Even Hernandez’s lawyers had pointed out that he’d received negative coverage in outlets like Rolling Stone and ESPN.

Given the changing nature of media, particularly media surrounding sensational murder trials (hello, Nancy Grace!), perhaps we’ll see that point made more and more. The national media has changed a lot since the Supreme Court carved out the ability to move a trial elsewhere in a state. Now, it’s the rare case that would receive a fairer shake in Worcester than in Boston. In Hernandez’s case, a judge didn’t think it was worth carving out an exception.