Government Opposes AJ Fischer's Novel J6 Change of Venue Request

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  • Source: UncoverDC
  • 01/29/2024

On Jan. 25, after two extensions, the Government argued that AJ Fischer "fails to establish that 'he cannot obtain a fair and impartial trial'" in the District of Columbia. UncoverDC spoke briefly with Fischer, who says the Government barely looked at the research he provided to prove juror bias in the District. According to Fischer, it may be that the "DOJ cannot find an expert to disprove the research" that underpins the arguments in his case. Fischer plans to file for an extension to respond.

One of the most challenging hurdles J6 defendants must overcome in their D.C. court cases is juror bias. The motion filed on Dec. 18, 2023, by J6 Defendant AJ Fischer seeks to prove his case will not be fairly heard by a D.C. jury. Using "novel Change of Venue arguments and legal theory," Fischer's attorneys hope to prove the case must be moved out of the District of Columbia because of insurmountable juror prejudice. The arguments put forward in the lawsuit may be the reason the DOJ received two extensions to reply.

So what novel arguments do Fischer and his attorneys present? Rather than using "outdated polling methods" or supporting methodologies that advocate asking juries whether they can keep their bias in check, Fischer uses data on media saturation and media consumption in the D.C. market as a basis for his arguments. These were also some of the arguments used in Ruby Freeman et al. v. Rudolph W. Giuliani. Fischer's lawsuit states:

"As will be demonstrated below, Fischer will establish by the latest available data that 1) the saturation of J6 coverage by media outlets in this District dwarfs that of any other District in the United States, 2) that residents of the District consume more J6 media stories than any other federal district in the United States, and 3) that implicit/inherent bias in this District is more pronounced on this issue due to the disproportionate exposure and consumption of media concerning the events of Jan. 6."


Fischer's motion to change venue uses Meltwater's analysis of the D.C. media market to prove jurors in the District have been inundated with negative and biased messaging about the J6 protests. Meltwater, according to the lawsuit, "serves as a trusted resource for allocating billions of dollars of marketing expenditures annually. This data science research tool serves household name brands, PR firms, advertising giants, and agencies to assess the influence of their advertising and as a guidepost to formulate future strategic planning." Meltwater compared nation-wide coverage of key events "summarized by geography," including the Capitol protest "to identify if there are systemic differences in media exposure across markets."

The Meltwater study looked at "a total of 1,494,847 unique media mentions" to show that media narratives in D.C. have an extraordinary influence on individuals concerning Jan. 6 compared to other markets. Data also show search terms related to Jan. 6 are much more prevalent and prominent in the D.C. market than in other U.S. cities. This lawsuit argues that between searches on the internet and media consumption in the D.C. market, "potential juror awareness of and interest in topics relating to J6" is significant enough to interfere with their objectivity. 

Attorneys in the case also looked at Google Trends to examine J6 search queries. Google Trends "analyzes the popularity of top search queries in Google Search across various regions and languages." Google Trends also examines search volume and "allows users to compare relative search volume of searches between two or more terms." The site is widely used to "examine trends in public interest and awareness" on various topics, including what happened on Jan. 6. Google Trends data were permitted in Ruby Freeman et al. v. Rudolph Giuliani. To clarify, search volume, as defined by Google Trends, according to the lawsuit, "does not measure the saturation of an area by media outlets. Rather, it measures how many individuals in that broadcast area take the affirmative step of typing into their search bar and clicking on a link." 

Google Trends shows how search terms, depending on the topic and region, can indicate what users seek in the media. As such, localized topics like hurricanes or, say, J6 protests will more likely generate search terms that look for news on those events. According to Google Trends, Jan. 6 happened in D.C., and individuals there will be more likely to search "J6" or "Capitol protest" than individuals in the middle of Iowa, for example. The lawsuit states, "[p]olitically charged references to the Capitol protest on Jan. 6 yield more telling results."

"Search terms such as "Capitol Terrorist," "January 6thCapitolAttacks," and even "Jan. 6" consistently rank 100 in the District of Columbia for all three search terms, meaning the District of Columbia had the highest ranking of searches across all states. By contrast, Ohio is at 34 for "Capitol Terrorist," Massachusetts is at 54 for "January 6thCapitol Attacks," and Iowa is at 60 for "Jan. 6."

Summarized below, residents in the District are highly likely to search for inflammatory terms related to J6, leading them to read corresponding media stories on the event. D.C. residents were also "eight times as likely" to search for and read the Select Committee's report on J6, which was anything but objective.

While this lawsuit does not argue that Google and social media algorithms affect searches, growing evidence suggests that user searches are narrowed by forces beyond their awareness. Add to that the government laundering information through its willing Big Tech and Media partners; you have a public greatly disadvantaged in its chances of seeing and hearing all sides of any given story.

Unconscious bias is another area addressed in the lawsuit. The lawsuit cites a video produced by "a committee of judges and attorneys" to help jurors understand how powerful their unconscious bias can be in criminal cases. Fischer's lawyers argue it isn't clear that merely showing a video to jurors will help overcome their bias when they are inundated daily with narratives reinforcing their opinions. They also argue that the method of asking jurors (voir dire) whether they can set aside their bias is proving, at least in J6 cases, to be a poor way of assessing their ability to be fair and impartial. They argue it may be ill-conceived to allow the Government to always default to the argument that "voir dire is the mandatory answer to everything and that change of venue cannot be a permissible solution to unprecedented, negative pre-trial publicity."

The D.C. courts would have you believe the juror pool is level-headed enough to hear J6 cases without bias. However, those who have witnessed jury selection in J6 cases will tell you a different tale. Denials for change of venue have happened repeatedly in J6 cases.

Bolstering the argument that D.C. juries are most likely compromised with bias is the fact that 92.1 % of those in D.C. who voted in the last presidential election voted Democrat. In reality, D.C. judges struggle to find jurors who do not have political bias, let alone biases against Trump-loving J6 protestors. And yet, judges in D.C., in case after case, continue to insist that finding unbiased jurors is possible.

Fischer's lawsuit asks, "Is justice blind just because we say it is?" The answer is almost certainly no. It surely isn't the case just because a juror says it is so, especially since the J6 protest occurred steps from D.C. courtrooms. The lawsuit highlights the fallacy of juror objectivity:

"From the leading researchers and peer-reviewed studies, we now know that, first, implicit bias or unconscious bias is so deeply ingrained that jurors will answer incorrectly, even if unaware, that they can be unbiased when they actually cannot. The development of the human mind over time and embedded values make it impossible for jurors to set aside their preconceived judgments and biases, even if they are trying to do so. Consciously or unconsciously, jurors will declare they are unbiased when they are, in fact, biased that they have not made up their minds in advance when, in fact, they have. The routine practice of asking prospective jurors if they can be unbiased or have made up their minds from pre-trial publicity was never based on any reality other than perhaps swearing an oath."

Citing Anthony Greenwald, a leading authority on implicit bias, Fischer's lawyers use his statement on the effectiveness of "rectifying existing implicit bias" by asking jurors to set aside their biases. Greenwald says those practices amount to "cures of the snake oil variety." Instead, Greenwald suggests courts look at "cures that involve redesigning procedures so that implicit bias, which can be assumed to be present in many people, just does not have a chance to operate."

If indeed it is central to our justice system that every person receives a fair trial with minimal prejudice from a judge or jurors, then the Fischer case makes compelling arguments as to why courts in D.C. may fall woefully short of the task. Local prejudice, with "inflamed passions in the host community" that "permeat[es] the trial setting...[such] that a defendant cannot possibly receive an impartial trial," as argued by Fischer's lawyers, seems to be a rational take on the challenges J6 defendants face in their trials. While it is easy to see why the Government would argue against a change of venue, it is not as easy to accept a judiciary that would agree. 

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