Criminal – Change of venue

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Where a defendant has moved to change the location of his trial, the motion should be denied without prejudice despite extensive pretrial publicity.

“Defendant Aaron Hernandez moves, pursuant to Mass. R. Crim. P. 37(b)(1), the Sixth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights, to change the location of his trial to a county ‘outside the boundaries of the Boston media market, such as Hampden or Worcester County.’ He contends that he is unable to obtain a fair trial in Bristol County due to the extensive prejudicial pretrial publicity surrounding his case. …

“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. The defendant has also not persuaded the Court to exercise its discretion under Rule 37(b)(1) to order a change of venue. The Court is confident that a careful and discerning individual voir dire will be an effective means of ensuring an impartial jury. Nothing about the polling proffered by the defendant provides any reason to believe that impaneling a jury in Worcester or Hampden County would be any more or less difficult. The reality is that the extensive media coverage of this case is not driven by local media or by any particular local interest. Because the defendant is an athlete from a nationally prominent professional football team, the case is of interest to people across the state, New England, and the country. Articles in the Boston and national newspapers tendered to the Court are available in these counties as are the on-line editions of those papers, the national magazines and the social media and numerous internet sites on which the defendant focuses. There is no reason to believe-that the television coverage in those counties of the case is materially different. There has been no showing that the same poll-conducted in Worcester or Hampden County would produce statistically significant different results, that the nature or amount of pre-trial publicity in Bristol County has been greater than in Worcester or Hampden County, that a different percentage of residents of Worcester or Hampden County are fans of the New England Patriots, or that residents of these counties are less focused upon this case or would be less biased against Hernandez than residents of Bristol County. Thus, there is no compelling reason to transfer the case. …

“The Court will reconsider its ruling if, during jury selection, it becomes apparent that it will not be possible to pick a fair and impartial jury in Bristol County.”

Commonwealth v. Hernandez (Lawyers Weekly No. 12-125-14) (14 pages) (Garsh, J.) (Bristol Superior Court) (Criminal Action No. BRCR2013-00983) (Nov.10, 2014).