Before he was arraigned Tuesday, former President Donald Trump suggested in a social media post that he might seek a change of venue, to transfer his criminal case from Manhattan to another county less likely to be hostile to him. “THIS CASE SHOULD BE MOVED TO NEARBY STATEN ISLAND — WOULD BE A VERY FAIR AND SECURE LOCATION FOR THE TRIAL,” he wrote.
Just because a defendant has been accused of committing a highly publicized crime that has inflamed public passions, it doesn't mean he's entitled to a change of venue.
The U.S. Supreme Court has long held that a criminal defendant has the right to a fair trial, one not dominated by a “wave of public passion,” not overwhelmed by media coverage and not conducted in a “carnival atmosphere.” To prevent this type of unfairness, New York law provides for a criminal case to be moved to another county.
But just because a defendant has been accused of committing a highly publicized crime that has inflamed public passions, it doesn't mean he's automatically entitled to a change of venue. New York courts caution that even pervasive pretrial publicity doesn’t necessarily lead to an unfair trial. Trump would have to meet an “extraordinary” burden to get the court to transfer his case to another county, especially before the jury selection process.
On the other hand, he has access to unique data about local bias against him: namely, the 2020 New York presidential election results. These numbers give us at least an idea about what people thought about Trump, the candidate, in every New York county. In Manhattan, 86.7% of voters voted for the Democratic candidate, Joe Biden, compared to the 12.3% who voted for Trump. Compared to the national breakdown of the vote (51.3% for Biden and 46.8% for Trump), a court — or anyone — could reasonably infer that Trump is particularly unpopular in Manhattan.
But even those hard numbers might not be enough. New York courts have taken the view that “detection of actual prejudice is not accomplished through juggling statistics” or poll numbers. The courts have shied away from saying that a fixed percentage of potential jurors with preconceived opinions requires a change of venue. And, in fairness, just because a prospective juror voted for Biden doesn’t automatically mean he or she would be unable to set aside that “bias” and give Trump a fair hearing.
Even if Trump’s legal team were to persuade a judge to transfer the case to another county, the next controversy would be: which one? In fact, this selection process would be so controversial that it alone could weigh against granting a venue transfer motion.
The law isn’t designed to let the accused shop around for a favorable jury pool or demand a county with a particular demographic makeup. The law isn’t designed to turn the tables in favor of a defendant; it’s designed only to ensure a “neutral forum.” But figuring out where exactly to send the case is, according to a previous court case, a “more delicate task.” According to New York’s highest court, within reasonable limits, the trial should be transferred to a county that “reflect[s] the character of the county” where the crime is said to have been committed. That’s not much help. Beyond that, courts have suggested — but not required — that if the venue is changed, an “adjoining county” should be selected. This isn’t much help, either.
Consider the four remaining counties that make up New York City: Queens, the Bronx, Brooklyn and Staten Island. If 2020 voting data is any indication, transferring the case to the Bronx (which went 83.4% for Biden and 15.9% for Trump) would strike Trump as being just as bad as keeping it in Manhattan. But if Trump were to get his wish and the case were transferred to Staten Island (which went 57% for him and 42.1% for Biden), he would then appear to have the advantage. Does that mean the judge would have to look for the New York county that had the smallest separation between the presidential candidates? Cortland County, just south of Syracuse, went 47.8% for Biden and 49.8% for Trump. But it’s also more than 200 miles from Manhattan. That’s not going to happen.
If Trump were to get his wish and the case were transferred to Staten Island, he would then appear to have the advantage.
Judge Juan Merchan will most likely never reach the question of what county in New York state would give Trump the fairest trial. That’s because any motion for a change of venue will probably be denied.
When you think about it, it’s the only just result. A former president would be as controversial in New York City as he is in Nome, Alaska. If folks are polarized about Trump in Manhattan, then they will be just as polarized about him everywhere else. If a court acknowledges that a county in America is unable to give a former president a fair trial, then it might mean no president could get a fair trial anywhere in America. And that might lead to someone truly being treated as being “above the law.”