Monday, January 30, is the deadline that has been set for Mike Miske or any of his co-defendants to seek a change of venue so that the trial can be moved to a different location.

But after after looking at the legal criteria for such a move, and the U.S. Supreme Court rulings on the issue, it appears to me that any motion to move the trial would be a long shot and very unlikely to succeed.

The presumption is that a case will be tried in the community where the crime(s) took place, although a defendant can request a change of venue just a few reasons.

—Excessive pretrial publicity, if the news reporting is so extensive that it would make it unlikely to find enough unbiased jurors to provide a fair trial.

—A biased jury pool. This has arisen is cases that have racial tinge and the trial takes place in a racially charged setting, or, as one web site suggested, if it is a “death penalty-eligible crime being tried in a community where there is strong political support favoring the death penalty.

—There is also a “catch-all” category for other considerations “in the interest of justice,” which may include considerations of cost, the availability of witnesses, or allegations that a presiding judge is biased.

Do any of those exclusions appear to apply to this sprawling 22-count case against Miske and the six last co-defendants?

Most of the witnesses live and/or work in Hawaii, including victims who will be witnesses. The families of both defendants and victims, who have a keen interest in the outcome of the trial, live in Hawaii, most here on Oahu. This trial will be a major production expected to last as long as five months. Most of the actors, whether in central roles or bit parts, live here, and moving the whole thing to another location would entail staggering costs for transportation, housing, food, etc. It certainly appears that the “interests of justice” support keeping the trial in Honolulu’s Federal District Court.

How about the question of jury bias. It seems to me that given Hawaii’s diverse population, these defendants have their best chance of getting a jury of their peers, those who understand the community and its norms, by keeping the trial right here. Hawaii tends to be more liberal on issues of crime, and eliminated the death penalty nearly 70 years ago. Again, these would appear to provide reasons for defendants in the case to be tried here at home.

So what about pretrial publicity?

There are two decisions by the U.S. Supreme Court that are widely cited on the issue of pretrial news coverage and the right to a fair trial, both involving cases that drew national attention and intense news coverage.

The first decision came in a case stemming from the collapse of Enron, an energy company that had quickly grown to one of the largest corporations in the country. Jeffrey Skilling resigned as CEO of the company in August 2001, and just a few months later, the company filed for bankruptcy.

After an investigation uncovered an elaborate conspiracy to prop up Enron’s stock prices by overstating the company’s financial well-being, the Government prosecuted dozens of Enron employees who participated in the scheme. In time, the Government worked its way up the chain of command, indicting Skilling and two other top Enron executives. These three defendants, the indictment charged, engaged in a scheme to deceive investors about Enron’s true financial performance by manipulating its publicly reported financial results and making false and misleading statements….

In November 2004, Skilling moved for a change of venue, contending that hostility toward him in Houston, coupled with extensive pretrial publicity, had poisoned potential jurors. He submitted hundreds of news reports detailing Enron’s downfall, as well as affidavits from experts he engaged portraying community attitudes in Houston in comparison to other potential venues. The District Court denied the motion, concluding that pretrial publicity did not warrant a presumption that Skilling would be unable to obtain a fair trial in Houston. Despite incidents of intemperate commentary, the court observed, media coverage, on the whole, had been objective and unemotional, and the facts of the case were neither heinous nor sensational. Moreover, the court asserted, effective voir dire would detect juror bias.

The district court denied Skillings motion to move the trial.

“Despite “isolated incidents of intemperate commentary,” the court observed, media coverage “ha[d] [mostly] been objective and unemotional,” and the facts of the case were “neither heinous nor sensational,” the court held.

Skilling appealed this issue, and several others, to the Supreme Court.

The Supreme Court’s decision was issued in 2010.

The Supreme Court quoted from a number of prior cases, noting “we overturned a ‘conviction obtained in a trial atmosphere that [was] utterly corrupted by press coverage’; our decisions, however, ‘cannot be made to stand for the proposition that juror exposure to . . . news accounts of the crime . . . alone presumptively deprives the defendant of due process.’”

“Prominence does not necessarily produce prejudice, and juror impartiality, we have reiterated, does not require ignorance.”

“Jurors are not required to be ‘totally ignorant of the facts and issues involved’; ‘scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.’”

“[E]very case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits.”

A presumption of prejudice, our decisions indicate, attends only the extreme case.

The court noted two additional points, First, the passage of time lessons the impact of pretrial news coverage. In Skillings case, four years passed between Enron’s highly publicized bankruptcy, and the trial.

“Although reporters covered Enron-related news throughout this period, the decibel level of media attention diminished somewhat in the years following Enron’s collapse,” the court noted.

And the other factor the court relied on is the view that careful screening of jurors can reduce or eliminate the impact of pretrial publicity. The process of creating a detailed questionnaire to be completed by prospective jurors in the Miske case is already underway.

Last year, the Supreme Court again considered the question of pretrial news coverage in the case of Boston Marathon bomnber Dzhokhar Tsarnaev, who challenged whether the jury selection process in his trial had adequately protected against bias created by the extensive publicity in the case.

From the opinion (citations omitted):

The District Court did not abuse its broad discretion by declining to ask about the content and extent of each juror’s media consumption regarding the bombings. The court recognized the significant pretrial publicity concerning the bombings, and reasonably concluded that the proposed media-content question was “unfocused,” risked producing “unmanageable data,” and would at best shed light on “pre-conceptions” that other questions already probed. At voir dire, the court further explained that it did not want to be “too tied to a script” because “[e]very juror is different” and had to be “questioned in a way that [was] appropriate” to the juror’s earlier answers. The court was concerned that a media-content question had “the wrong emphasis,” focusing on what a juror knew before coming to court, rather than on potential bias. Based on “years” of trial experience, the court concluded that jurors who came in with some prior knowledge would still be able to act impartially and “hold the government to its proof.” The District Court’s decision was reasonable and well within its discretion, as our precedents make clear.

There has not actually been much ongoing news coverage of the Miske case in mainstream media, which is the primary reason why I’ve pursued my reporting. But although I’ve written over 100 articles and blog posts about the case, this is not reflective of broader media coverage, except Civil Beat. But I don’t believe either Civil Beat or this blog reach the broad audiences enjoyed by broadcast news which, along with the daily newspaper, has had only sparse coverage of the Miske case. Overall, news coverage has been miniscule and mild compared to the amount of coverage in the Enron and Marathon Bomber cases.

That brings me back around to my own conclusion, at the start of this post, that there isn’t a realistic basis for the Miske defendants to argue for a change of venue.