EDNY Judge Denies Trial Transfer in Media Case in Part Because of Defense Litigation

A motion for change of venue based on pretrial publicity is an up-hill battle at the best of times – requiring “prejudicial and inflammatory coverage” that “saturates” the community, rendering a fair trial by an impartial jury “virtually impossible.” The fact that change of venue was denied in federal criminal cases relating to the notorious 1993 World Trade Center bombing and the police assault of Abner Louima says it all.

But in a recent decision, an EDNY judge proposed a new obstacle – defense litigation leading to additional court proceedings, and thus media coverage. In United States v. Sabhnani, 2007 WL 2769487 (E.D.N.Y. September 21, 2007), a case involving a forced labor charge against a wealthy Long Island couple, defense lawyers moved for a change of venue, arguing “unrelenting and virulent” publicity, including 30 newspaper articles in the space of a 6-week period, allegedly generated by the government’s “sensationalized rhetoric” during bail hearings. Denying the motion, the district judge based his decision in part on a finding that “the bulk of the publicity was generated by defendants” because (a) their attorneys “repeatedly put themselves and their clients in the media spotlight by commenting upon, inter alia, the merits of this case, the bail proceedings, and attacking the credibility of the complaining witnesses” and (b) “the constant pre-trial attention in this case [was] created by defendants’ motions in this and the Court of Appeals for [the defendants’] release on bail.”

Sabhnani is the first case I found -- at least in the Second Circuit -- where a transfer denial was based in part on defense-initiated litigation that occasioned additional opportunities for negative publicity. Arguably, the proposition runs contrary to the basic principle underlying venue transfer – the achievement of a fair trial. In any event, the case demonstrates the tension in high profile cases between, on the one hand, maintaining a viable venue transfer motion by avoiding the claim that the publicity is defense-generated, and on the other, speaking to reporters in order to counteract negative publicity.