The Sixth Amendment to the United States Constitution guarantees defendants the right to an “impartial jury.”
But it also said the trial should be held “in the state and district where the crime was committed.” So what happens when a defendant is virtually unable to receive an impartial jury in that state or district? (Related: Alan Dershowitz: Trump Indictment Failed Nixon Test)
In federal litigation, the law provides for a change of venue in appropriate circumstances. If Donald Trump is indicted at an event around January 6, 2021, it looks like the venue will need to be changed. The District of Columbia is the most extreme Democratic constituency in the country.
About 95% of jury candidates register and vote Democrat. Meanwhile, about 5% voted for Trump. Moreover, given the fact that the Jan. 6 events directly involved many of the district’s residents, the outrage at Mr. Trump is understandable. Additionally, the judge randomly selected to preside over the case has a longstanding bias against Trump and her supporters, and her law firm has a long history of disputes and corruption.
The goal of the Sixth Amendment is not only to ensure that defendants are treated fairly, exterior It also fills the heart of justice. Juries and judges who are impartial and perceived to be impartial are essential to achieving this goal.
It is therefore imperative that every effort is made to ensure impartiality when a sitting President asks the Attorney General to aggressively pursue political opponents. Prosecutors must lean back to convince the public that partisan considerations have had no bearing on prosecution decisions. Agreeing to a change of venue and judge would go a long way to ensure that justice is served.
Petitions to change venues are rarely granted, as are petitions to remove an elected judge. But this is a case requiring Justice to grant these allegations, both in the interests of the defendants and in the interests of justice. Governments should not oppose such motions, but generally do so when it would be tactically advantageous.
Therefore, these defense claims are likely to be dismissed by the trial judge. Trump’s lawyers plan to attempt an immediate interlocutory appeal before trial.
Such pretrial appeals are generally frowned upon, but the case is strong that they should be allowed. In particular, prosecutors want the trial in the middle of the election cycle, and the trial itself promises to play a key role in the 2024 election. A wrongful trial conviction would already have consequences, even if the verdict was reversed on post-election appeals, as prosecutors probably expected.
Appellate courts should therefore be able to ensure, in advance, that fair trials are presided over by fair judges and in fair forums, especially before presidential elections.
If the prosecution’s case is strong, there’s no need to fear juries and judges outside DC. As the Supreme Court has repeatedly said, the prosecutor’s job is not simply to maximize his chances of winning, but to ensure that he wins fairly and equitably. To that end, the prosecutor in this case should not oppose the defense’s motion for a change of venue and judge. Also, if the trial judge rejects these well-founded defense motions, he should not oppose the appeal. (Related: Alan Dershowitz: Jack Smith’s questionable indictment isn’t the slam dunk Trump haters think)
Presumably, the prosecution will vigorously resist any effort by the defense to secure an impartial jury and judge. Because prosecutors want every advantage to secure victory. They will point to advocacy to secure the interests of their clients and argue that a hostile justice system demands the same from them. But it’s not the law. The Supreme Court has clearly delineated the different roles of persecutors representing the government.
“The United States prosecutor is no ordinary party to the dispute, but a representative of sovereignty whose duty to govern impartially is as persuasive as that to govern at all, and therefore his interests in criminal prosecution are of little consequence. Lawsuits will be won, but justice will be served.”
Prosecutors in the Jan. 6 case should consider this opinion before denying Trump an impartial jury.
Alan M. Dershowitz is Felix Frankfurter Professor of Law, Professor Emeritus at Harvard Law School, and most recently author of The Price of Principles: Why Honesty Worth Results. He is a Jack Ross Charitable Foundation Fellow at Gatestone Institute and host of the podcast “The Dershow.”This work reissue From the Alan Dershowitz Newsletter.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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