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Prejudicial Pre-trial Publicity: Trump & a Death Penalty Case

NY Times Trump Headline

A few years ago, I wrote an article about the pre-trial publicity in the case of Jussie Smollett, who was eventually convicted of staging a hate crime and lying to the police.

The prosecutor had dismissed the charges, and I argued that the defendant was charged, tried, and convicted in the press.

Worse, the Bigot in Chief at the time (you know who) tweeted that the FBI and DOJ should review the case because [the dismissal] “is an embarrassment to our nation.”

Many applauded the president’s tweet because they had determined that Smollett was guilty. Why? How? At the time of the tweet, Smollett was tried and convicted by the “three P’s,” the press, the police, and the president. The fact that the charges were later reinstated and Smollett was found guilty by a jury is beside the point. In my opinion, pre-trial publicity prejudiced his right to a fair trial.

Trump Claims Prejudicial Pre-Trial Publicity

Fast forward to the present. In a Manhattan courtroom, citizen Donald Trump, who cheerled Smollett’s conviction and declared him guilty until proven innocent, now claims he, Trump, is the victim of prejudicial pre-trial publicity.

The problem for Trump, compared to Smollett, is that the former president generates all the publicity. We haven’t heard much from the prosecutors, have we? Alvin Bragg has been remarkably closed-mouthed about the case, and for good reason. He knew Trump would argue for a change of venue and cleverly avoided providing any ammunition for the trial judge to grant a motion for the change.

The judge correctly denied the former president’s motion; jury selection is still on track for Monday, April 15.

The Idaho Death Penalty Case

In a high-profile case pending in Idaho, a similar situation plays out in a criminal courtroom, where Brian Kohberger faces the death penalty, accused of brutally murdering four college students.

His defense team argues he cannot get a fair trial in the county where the murders took place. To prove it, they commissioned a survey, telephoning prospective jurors, reaching out to the community, and asking questions designed to demonstrate that the county jury pool is hopelessly biased. The prosecution argues that the survey violates a gag order in the case and taints any potential jury pool.

This is a small community. The case is a big deal, and press coverage is extensive. A strong case can be made for a venue change. I’m not arguing Kohberger’s guilt or innocence, but the glare of media attention often distorts justice and makes it difficult for a high-profile defendant to get a fair trial. Pre-trial publicity inundates potential jurors with information, usually biased, and shapes their opinions before being called to serve as jurors in the courtroom.

In a case like the one pending in Idaho, media coverage sensationalizes details and often paints a vivid picture of guilt. The presumption of innocence becomes a casualty when individuals selected for jury duty have preconceived notions, rendering impartiality nearly impossible. Since the trial judge’s most important responsibility is to safeguard the integrity of the judicial process, he must carefully evaluate media sensationalism to ensure the defendant’s right to a fair trial.

Factual evidence is all that matters in a court of law. It is the only evidence a jury can consider when rendering its verdict. Sensational headlines and speculative commentary often fuel a public discourse that conflates accusation with guilt, corrupting a defendant’s ability to receive a fair trial.

Implementing a change of venue can pose complex logistical, cost, and administrative challenges, which may complicate the process. The public and, especially, the victim’s families deserve a fair and transparent process. Notwithstanding those issues, a change of venue is an appropriate remedy in Idaho. Given the local media’s pervasive pre-trial publicity, a venue change might mitigate its prejudicial effects and facilitate the selection of jurors who have not been unduly influenced by media coverage.

A more neutral venue may enhance the prospects of a fair trial, which should be the goal of both defense and prosecuting attorneys. After all, justice must be administered without fear or favor, free from the undue influence of external factors. Presenting this case to a jury untainted by sensational media coverage upholds that principle.

In the final analysis, a neutral venue may be needed to preserve the integrity of the process. After all, a criminal defendant is innocent until proven guilty in a court of law.

Bello's books

Please check out Mark Bello’s ripped-from-the-headlines legal thrillers, all available online at Amazon and other major online booksellers. He has quite the hero in Attorney Zachary Blake, who fights for justice on all fronts. His books are Betrayal of Faith, Betrayal of Justice, Betrayal in Blue, Betrayal in Black, Betrayal High, Supreme Betrayal, Betrayal at the Border, You Have the Right to Remain Silent, The Final Steps – A Harbor Springs Cozy Legal Mystery, and his latest, The Anti-Semite Next Door. Also, he’s written a wonderful children’s book about bullying, “Happy Jack, Sad Jack,” and he's just announced the pre-order release of "Love Hate Law," a new legal romance novel. For more info, just check


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