As Judge Sack notes in his dissenting opinion in United States v. Elfgeeh, 06-744, 2008 WL 383046 (2d Cir. February 14, 2008), charting a course between protecting a defendant's Due Process rights and the public's right to learn about a trial through uninhibited press coverage is a difficult challenge.  Hence a series of procedures, established in the Second Circuit decision of United States v. Lord, 565 F.2d 831 (2d Cir. 1977), to deal with prejudicial trial publicity:  first ascertain whether the publicity contains potentially prejudicial material and whether the jurors might have been exposed to it; second, if the answer to that question is yes, do an initial inquiry of the jury to determine if any of its members have been exposed to it; and third, examine individual jurors exposed to the publicity, outside the presence of the others, to determine the extent of the exposure and effect on the juror's attitude to the trial. 

In Elfgeeh, the defendants, an uncle and nephew, were charged with operating an unlicensed money transmitting business that was used largely by members of Brooklyn's Yemeni-American community to transfer money abroad.  While the government harbored concerns that the business had been used to funnel money to support terrorist activity, no such charge was included in the indictment, and the court made clear that the government and its witnesses could not allude to terrorism throughout the trial.  The issue was, nonetheless, the elephant in the room at the trial, which commenced (how inappropriately) on September 12, 2004.  Moreover, days later, all the major New York tabloids carried stories on the trial, strongly suggesting a link between this trial and other terrorism prosecutions, and questioning the district court's ruling that the issue of terrorism be avoided.

On the day the articles appeared, the prosecutor brought the issue of the press reports to the attention of the judge, asking the court to admonish the jury to avoid press accounts of the trial, which the court duly did. Counsel for Aref Elfgeeh (the nephew) asked that the jury be polled as to whether any had read the particular articles discussing the trial.  Counsel for Abad Elfgeeh (the uncle, who, incidentally, had connections to an individual connected to Al Qaeda), however, indicated a preference for not polling the jury.  The court stood by the decision to issue merely a general admonishment.

The majority held that the court's decision not to follow the Lord procedures was not an abuse of discretion, finding that it was hardly clear that the jurors had seen the offending articles, and, in any event, it was within the district court's discretion to side with Abad, whose attorney had stated a preference against polling.  The court also, in a troubling statement, found that where the standard admonishment not to read or watch anything about the trial is given, "we may presume in the absence of any indication to the contrary, that the jurors have followed the court's instructions and have rendered their verdict solely on the basis of the evidence at trial."

In a compelling dissent, Judge Sack rejects the idea that a general admonishment was sufficient when the negative publicity was widespread, quoting Krulewitch v. United States, 336 U.S. 440, 453 (1949) (Jackson, J., concurring) (“The naive assumption that prejudicial effects can be overcome by instructions to the jury all practicing lawyers know to be unmitigated fiction.”).  He points out that the idea the jurors in a high profile trial may not have read articles in the three major New York tabloids as they commuted into court is preposterous.  Moreover, he took issue with the Court's conclusion that here, "in a situation where there was an extraordinary danger of actual prejudice," Abad's preference for not polling should be privileged over Aref's request for polling.
 
At the heart of the dissent is a legitimate concern that an innocent man may have been convicted.  As Judge Sack states:

This is not purely a theoretical matter. I fear that there is a substantial danger that Aref, at best a third-string player in the scheme for which he was indicted, was convicted because he was a member of the Yemeni community, and the jury suspected that the prosecution was, at bottom, about terrorism and Al Qaeda, supported by publicity to that effect. I do not see how, with respect to Aref, the error can be said to be harmless.

This decision joins another recent decision from the Second Circuit, discussed here, that shows a disturbing disregard for Due Process issues relating to Muslim-Americans.  Once again, I ask the question, who will reign in hysterical responses to terrorism other than independent federal judges, tenured for life?

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.