Jury selection was completed this week in the trial of Jerry Sandusky, the former Penn State defensive coordinator charged with 52 counts of sexual assault of minors. Sandusky has denied guilt and has tried to portray himself in his media appearances as a benevolent fan of children and not a pedophile. Sandusky’s counsel did not seek a change of venue in the highly publicized case, opting for a local jury that would, of necessity, include many with connections to Penn State.
Jury consultants and legal pundits have been critical of this decision. The theory posited for the defense decision is that PSU fans are so loyal that at least one of the jury may refuse to convict Sandusky, regardless of the extent of the proof. Frankly, that is a short sighted belief, failing to recognize that jurors take the oath of service seriously.
Venue is a term that refers to the locus of a prosecution. It does not implicate the jurisdiction of the court to hold a defendant to answer charges in a trial; rather, it merely focuses on the locale of the trial. Judges are vested with the discretion to move a case to a different district only if the court finds that the jury selection method is not working to select a fair and impartial jury. As our courts have stated, “In requesting a change of venue, the defendant bears the burden of demonstrating that he could not otherwise receive a fair and impartial trial.”
The importance of venue was never more striking than in the choice of locations for the murder trial of O.J. Simpson. In the years that followed the surprise verdict many have suggested that the prosecution chose the wrong location for the trial and the racial composition of the jury would have been significantly different if the case had been tried in Santa Monica where the crime occurred rather than in downtown Los Angeles.
Pre-trial publicity is inevitable in cases such as this one. Instantaneous internet news coverage results in most prospective jurors knowing about the case in some detail. Mere knowledge of the case is not enough to seek the exclusion of potential jurors. In one Connecticut prosecution Judge Robert Devlin, noted, “It is well established that the fact that a juror has some prior knowledge about the case does not constitute juror prejudice.”
The United States Supreme Court noted in the seminal case of Murphy v. Florida, in 1975, that a defendant cannot rely on the simple fact of extensive news coverage to prove inherently prejudicial publicity, but must demonstrate that the publicity was so inflammatory or inaccurate that it created a “trial atmosphere utterly corrupted by press coverage.” Not even some opinion on guilt or innocence is enough to excuse a juror, as the court noted in the Murphy case, “‘To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”
In ruling on a request by Sandusky’s attorney to excuse a particular juror because the connection to PSU was too great in the lawyer’s view Judge Cleland remarked, “We’re in Centre County. We’re in rural Pennsylvania, there are these (connections) that cannot be avoided.” News reports indicate that of the 12 regular and 4 alternate jurors selected, half have ties to Penn State, including one retired professor and one current professor, three graduates, two employees and one current student. It remains to be seen whether these close connections will lead to the jury nullification the defense may be seeking.