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…
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