“Reputation Precedes Me”: Taylor Swift, Paul Manafort, and (No) Change in Trial Venue

What do Paul Manafort and Taylor Swift have in common? A bad reputation, some unsavory recorded phone calls, and nonstop media coverage. While Swift’s duplicity and feud with the Kardashian-Wests sent the likes of E! News and other entertainment sources into a frenzy, Manafort’s flavor of deceit took on a criminal nature, catching the attention of the Mueller probe . . . and every news outlet in America. Surely Manafort, D.C. lobbyist and former chairman of the Trump campaign, wished the only jury he faced was one along with Swift in the court of public opinion. Unfortunately for him, the multiple counts of criminal charges have meant facing multiple juries—juries full of people that likely know the details of his “alleged” crimes as well as every teenage girl knows the lyrics to “Shake it Off,” thanks in large part to the 24-hour news cycle.

There is a remedy for criminal defendants anticipating jury trials in locations where the media has berated the public with details of the case. Defendants may request a change in venue, alleging that the jury pool in the current location is polluted with information that could bias jurors against the defendant. Since Manafort was facing a trial in D.C., where media coverage of his misdeeds were pervasive, his attorneys called for a change in venue—a request the judge unsurprisingly denied. Criminal defense attorneys have become accustomed to the denial of these requests. The standard for changing venue due to publicity and ensuing prejudice is so high that only a small and ever-shrinking class of defendants can enjoy the privilege of such a remedy.

To move venues based on pre-trial publicity, the media’s coverage must create prejudice so “extraordinary” that it prevents a fair trial. To be clear, “a presumption of prejudice . . . attends only the extreme case.” The Supreme Court has articulated considerations that might warrant a change in venue:

• Size and characteristics of the community—the smaller, the better
• Inclusion of a confession or other specific information in media reports—the more salacious or damning, the better
• A wide class of victims—preferably a substantial portion of the tiny aforementioned community

So, who exactly gets the benefit of a changed venue in this constant stream of media attention? The likes of Timothy McVeigh. In his case, the judge weighed opinion polls submitted by his attorneys and found that “the entire state had become a unified community, sharing the emotional trauma of those who had become directly victimized.” Though Oklahoma City is not a particularly small community, the media coverage was so pervasive, the number of victims was so broad, and the community so united that a new venue was necessary to “see that justice is done.” That was 1996.

As courts have grown increasingly leery of granting a motion to move a trial for publicity-induced prejudice, the same sorts of characters are not receiving such “justice” in more recent cases. Aside from Manafort, the Boston Bomber was denied a change in venue on similar facts to those of McVeigh’s. Even defendants accused of crimes originating in small communities (to the tune of 9,538 people) that receive national media attention have been denied a change in venue—even when full podcasts about the case rife with new evidence (including a leaked confession) have received national acclaim.

The reticence to change venues in light of pervasive media coverage makes sense. Defendants should not receive a procedural advantage (a change in venue and the delays that occur as a result) merely because technology, globalization, and an increasing interest in true crime podcasts have led to a more informed populous. Jurors are no tabula rasa—they are humans with access to the internet, radio, and push notifications from CNN. If staying current makes a juror biased, the number of eligible jurors will dwindle as access to information increases. For that reason, the standard for a change in venue is necessarily high.

But if the Boston bomber or even a murderer from Ocilla, Georgia, who is now in every podcast listener’s repertoire, can’t get a trial moved based on publicity-generated bias, we may need to reevaluate that standard. At the very least, courts should apply the existing factors without what is now a near-ironclad presumption against the move. The continued rigid application of the test runs the risk of making broad space in courtrooms for overly-inundated jurors at the expense of the due process the trial is supposed to serve.

 Should Manafort have gotten a change in venue under a reevaluation of the factors? Probably not—D.C. is big, there were no specific media reports of a confession prior to the trial, and his crimes were perceived as “victimless” (insert your opinion here, or consider this one). But the Boston Bomber? Probably a different story. Since criminal defendants don’t have the Swift ability to transform bad press into a 3x Platinum album, and the consequences of media for them are more likely to inform a guilty verdict than rake in millions of dollars, courts must take seriously the potential impact of prejudicial publicity. Due process requires it.