Never before in the history of the American criminal justice system has an accused gone to trial with such unfavorable media attention as Eddie Ray Routh, the accused killer of American Sniper Chris Kyle. While it is not uncommon for a defendant to receive unfavorable media attention on the eve of his or her trial, i.e., the Boston Marathon bomber, never before has a defendant gone to trial while a movie about his “alleged” victim was being played in theaters throughout the nation.
N.B. The term “alleged” is used in this post solely in recognition of Mr. Routh’s presumption of innocence. This is done notwithstanding that Routh’s attorney has admitted that Routh killed Kyle and that Routh’s defense will be not guilty by reason of insanity. There is no doubt that Routh killed Kyle. There is nothing “alleged” about it. Nevertheless, until proven beyond a reasonable doubt, the term “alleged” must be included in this narrative.
Texas Governor Greg Abbott compounded matters by declaring “Chris Kyle Day” in the midst of jury selection. The timing of this announcement was completely unnecessary. It could have waited until Routh’s trial was completed.
An infamous crime will always generate publicity. The publicity will almost universally place the accused in a negative light. The danger of this negative publicity is that it might taint the pool of citizens from which the defendant’s jury will be selected. Criminal defendants attempt to bypass negative pretrial publicity by seeking to change venue.
Venue is to be contrasted with jurisdiction. Jurisdiction is the power of the court to hear the case. Routh is being tried for an offense against the State of Texas. Any Texas state court has jurisdiction to conduct Routh’s trial.
Venue is another matter. Venue is the place within the jurisdiction authorized to hear the case. Various states have various rules concerning the place where the trial must be held. In a criminal trial, the general rule is that trial will be held in the county where the offense allegedly occurred.
A criminal defendant claiming unfair prejudice because of pretrial publicity can ask the court to move his or her trial to another court within the jurisdiction. This remedy will work well where the pretrial publicity is localized.
If the pretrial publicity were confined to the location where the alleged offense occurred, a change of venue to a location outside the area where the alleged offense occurred would cure any prejudice. The trial would still have to be held in the state where there is jurisdiction, but it could be moved far away where the pretrial publicity does not reach. Texas is a huge state. If the media attention was localized, the venue could be moved to some distant county and Routh would not be subject to negative pretrial publicity.
However, in this case, the pretrial publicity consisted of a movie made about the decedent. The movie was circulated nationwide. A change of venue to some remote part of Texas would not alleviate the effect of this kind of pretrial publicity.
Routh needed both a continuance and a change of venue. He needed a continuance until the force of the movie’s release was spent, preferably after sales of the DVD had peaked, and he also needed to move the trial away from the location where the offense occurred in order to mitigate the prejudice of local media accounts which would again arise whenever the trial was commenced.
To my understanding, Routh’s counsel moved for a change of venue, which was denied, but he did not move for a continuance. Without the latter, the former was a useless gesture.