MEMORANDUM OF DECISION AND ORDER ON DEFENDANT AARON HERNANDEZ'S MOTION FOR A CHANGE OF VENUE
E. Susan Garsh, Justice of the Superior Court.
Defendant Aaron Hernandez moves, pursuant to Mass. R. Crim. P. 37(b)(1), the Sixth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights, to change the location of his trial to a county " outside the boundaries of the Boston media market, such as Hampden or Worcester County." He contends that he is unable to obtain a fair trial in Bristol County due to the extensive prejudicial pretrial publicity surrounding his case. For the reasons discussed below, the motion is denied without prejudice.
Due process requires that provisions prescribing the venue of a criminal trial not impede its transfer to a different county, at the defendant's request, " if extraordinary local prejudice will prevent a fair trial . . ." Skilling v. United States, 561 U.S. 358, 378, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). See also Commonwealth v. Toolan, 460 Mass. 452, 462, 951 N.E.2d 903 (2011) (art. 12 of Massachusetts Declaration of Rights and Sixth Amendment to U.S. Constitution guarantee right to be tried by impartial jury).
Massachusetts Rule of Criminal Procedure Rule 37(b)(1) provides that a trial judge may order a change of venue " if the court is satisfied that there exists in the community where the prosecution is pending so great a prejudice against the defendant that he may not there obtain a fair and impartial trial." Mass.R.Crim.P. 37(b)(1). A judge has substantial discretion in deciding whether to transfer a case to another county based on pretrial publicity. Commonwealth v. Hoose, 467 Mass. 395, 405, 5 N.E.3d 843 (2014).
To be entitled to a change of venue on the basis of presumptive prejudice,  the defendant has the burden of demonstrating, by a " solid foundation of fact, " that prejudgment of the case is so substantial that regardless of the voir dire procedures to be used, the defendant is unable to obtain a fair and impartial jury in Bristol County. Hoose, 467 Mass. at 405-406; Toolan, 460 Mass. at 466. See also Commonwealth v. McCowen, 458 Mass. 461, 476, 939 N.E.2d 735 (2010) (noting that change of venue should be ordered with great caution). Prejudice is presumed only in the most extreme case in truly extraordinary circumstances where the trial atmosphere is " utterly corrupted" by media coverage. Skilling, 561 U.S. at 381; Hoose, 467 Mass. at 406; Commonwealth v. Entwistle, 463 Mass. 205, 221, 973 N.E.2d 115 (2012), cert. den., 133 S.Ct. 945, 184 L.Ed.2d 736 (2013); Toolan, 460 Mass. at 463.
The size and characteristics of the community in which the crime occurred is relevant to whether the defendant has demonstrated a presumption of prejudice that requires a venue transfer. Skilling, 561 U.S. at 382; Toolan, 460 Mass. at 463. Based on the 2010 Census, the United States Census Bureau projected that in 2013, the population of Bristol County would have grown to 552, 780 without regard to eligibility for jury service. The county is diverse; it includes four cities as well as suburban and rural communities. This provides a large enough pool of potential jurors from which to select an impartial jury. See Commonwealth v. Leahy, 445 Mass. 481, 493-494, 838 N.E.2d 1220 (2005) (noting that Plymouth County has population and urbanity that greatly decrease risk that impartial jury could not be seated). Cf. Toolan, 460 Mass. at 464 (small size of Nantucket County, with only 10, 000 permanent residents and tight network of social relations, weighed in favor of finding local prejudice). There are no known significant links among the victim's or defendant's family and the over-all jury venire. Apart from the location of the killing in North Attleboro and the decedent's acquaintance with the defendant and his fiancé e, the decedent had no apparent connection to Bristol County; his family and friends live in the Boston area, and the defendant's sole connection is his relatively brief residence in Bristol County. Three of the four cities in Bristol County, all of which are larger than Attleboro, have no connection to the crime scene or to the parties involved in this case. There was nothing unusually shocking or repellent about the facts of this particular crime that would set community opinion in Bristol County against Hernandez. See Commonwealth v. Blackburn, 354 Mass. 200, 204, 237 N.E.2d 35 (1968) (" [i]ntelligent persons read and take an interest in events; because of the same endowments they are likely to give due regard to the evidence and to disregard rumor, report, and suspicion when in the solemnity of a court room a defendant is tried and his reputation and his liberty or his life are at stake").
The content and character of the news stories about the defendant, including whether they contain a confession or other blatantly prejudicial information which readers or viewers could not reasonably be expected to put out of their minds, obviously are also relevant. Skilling, 561 U.S. at 382-383; Toolan, 460 Mass. at 463. Pervasive, adverse pretrial publicity does not inevitably require a change of venue. Skilling, 561 U.S. at 384; Toolan, 460 Mass. at 463. " Prominence does not necessarily produce prejudice, and juror impartiality, [the Supreme Court has] reiterated, does not require ignorance ." Skilling, 561 U.S. at 381 (emphasis in original). Coverage that is more factual than inflammatory or sensational undermines a claim of presumptive prejudice. United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir.), cert. den., 498 U.S. 845, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990); Hoose, 467 Mass. at 407; Commonwealth v. Morales, 440 Mass. 536, 540-541, 800 N.E.2d 683 (2003).
Unquestionably, there has been extensive publicity about this case and about Hernandez. Most of the coverage contains factual reports about this case and other court proceedings involving Hernandez, his co-defendants, fiancé e and cousin. None of the media reports claim that Hernandez has made a confession. This type of coverage is not so inflammatory or sensational as to give rise to a presumption of prejudice. Hoose, 467 Mass. at 407 (fact-based publicity, even if it references charges pending against the defendant, a confession, or a prior criminal record, not the sort of sensational publicity that gives rise to a presumption of prejudice).
Some sensational stories, vituperative opinions, speculation, and allegations of prior bad acts have also been circulated. The defendant points, in particular, to an article in Rolling Stone Magazine in August of 2013, a CNN documentary that aired in June and September of 2014, a magazine article in Gentlemen's Quarterly dated September of 2014 entitled " The 25 Biggest Sleazebags in Sports, " and a May 2014 article from Metro, a New York newspaper, reporting on the results of a poll of the most hated persons in America. Their circulation does not mean that there is an actual predisposition against the defendant because " familiarity with [the defendant] or his past" must be distinguished from " an actual predisposition against him . . ." Murphy v. Florida, 421 U.S. 794, 800, n.4, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975) (declining to find prejudice where defendant was notorious thief whose prior crimes, including theft of Star of India sapphire from New York museum and a murder conviction, had received extensive press, including national newspaper coverage, but voir dire indicated no hostility to defendant by jurors who served in his trial suggesting a partiality that could not be laid aside); United States v. Angiulo, 897 F.2d at 1181 (frequent references in extensive media coverage to " reputed crime figure Gennaro Angiulo, " " mafia boss Angiulo" and " reputed leader of Boston underworld" fall far short of type of emotionally charged, inflammatory, sensationalistic coverage needed to support presumption of prejudice). There also is no credible evidence as to the likely number of potential jurors who were actually exposed to such media coverage.
The defendant relies upon two telephone polls he commissioned in support of his contention that the pre-trial publicity about him and his case has so predisposed the citizens of Bristol County against the defendant that venue must be transferred. The polls fall far short of being a " solid foundation of fact" to support a change of venue.
Hernandez hired SocialSphere, Inc. to design and construct a public opinion poll of Bristol County residents. Neither SocialSphere nor its principal, John Della Volpe, is a professional trial consultant. Upon SocialSphere's engagement counsel for Hernandez furnished Della Volpe with a copy of the American Society of Trial Consultants (" ASTC") Professional Code for Venue Surveys. In an affidavit submitted in support of the defendant's motion to change venue, Della Volpe attested that he is " confident that the poll constructed and executed by SocialSphere comports with these standards." In numerous ways it does not, as Della Volpe conceded in his testimony at the hearing on the defendant's motion.
On August 26 and August 27, 2014, a subcontractor of SocialSphere conducted a telephone poll of Bristol County residents over the age of eighteen. SocialSphere attempted to contact 9, 968 individuals. Only 409 people completed the telephone survey. This represents a response rate of only 4.1%. Cf. United States v. Tsarnaev, 2014 WL 4823882 at *2 (D.Mass. O'Toole, J.) noting that poll response rate of 3% was very low and small sample was not representative of geographic distribution of people in district). The defendant's conclusions from the poll are premised on the assumption, which is questionable given the lack of inquiry in the poll as to citizenship status, that the 409 respondents are all eligible for jury duty.
SocialSphere designed the poll so that its interviewers would request to speak to the youngest person eighteen years or age or older in the household. There is no credible reason to believe that the age distribution of the ...