Your points are well made, and I expect AT will assert them in a motion to change venue. But my point is that these motions fly in the face of a very strong local judicial inclination to keep the case, and the trial judge's discretionary decision to do so is very difficult to overturn.
In order to move the case before trial, the court must find the entire jury pool was so tainted by massive, pervasive, and prejudicial publicity that a legal presumption is created the defendant will be denied a fair trial. These circumstances are very rare, as courts acknowledge, and asking a local judge to make such a finding about her own community is a big ask.
*Especially after the judge has done everything she can to prevent prejudicial publicity by issuing a gag order.*
Although actual juror prejudice would also be grounds to change venue, that can only be established at the completion of voir dire. My observation is that this is the most common response to an early motion to change venue. To me, the fact that BK stipulated to the gag order is a form of acknowledgment that a change of venue is unlikely: he's taking all the protection he can get.
Since you aren't satisfied with the Colorado trial court case, here's an Idaho Supreme Court case that recites most of the same precedents and applies the same rationale, upholding a Kootenai County (pop. approx 100,000 at the time) judge's decision to deny the requested change to a defendant accused of the brutal and sensational murder of a Coeur d'Alene police officer.
Here's the pertinent portion of State v Yager (2004):
"2. Motion for Change of Venue
A motion to change venue is addressed to the discretion of the trial court (citations omitted). The validity of a court’s decision to try a case in a particular venue is tested by whether, in the totality of existing circumstances, juror exposure to pretrial publicity resulted in a trial that was not fundamentally fair. Publicity by itself does not require a change of venue, (citations omitted), and error cannot be predicated on the mere existence of pretrial publicity concerning a criminal case. Where it appears that the defendant actually received a fair trial and that there was no difficulty experienced in selecting a jury, the denial of defendant’s motion for change of venue is not a ground for reversal (citations omitted).
In determining whether a criminal defendant actually received a fair trial, the Court will consider, among other factors, affidavits indicating prejudice or absence of prejudice in the community where he or she is tried, the testimony of jurors at voir dire as to whether they formed an opinion of the defendant’s guilt or innocence based upon adverse publicity, whether the defendant challenged for cause any of the jurors finally selected, the nature and content of pre-trial publicity and the amount of time elapsed from the time of the publicity to the trial (citation omitted).
At the voir dire, which was conducted by the trial judge with each potential juror individually, thirty out of seventy-six jurors admitted that they had formed the opinion that Yager was guilty, that the police had arrested the right person or that the prosecution indicated that Yager had some connection to the case. Fifteen of the thirty jurors were excused for cause. Defense counsel’s challenges to the remaining fifteen were overruled, and they were retained as potential jurors. All peremptory challenges were exercised, after which the defense renewed its motion, arguing that the panel still contained persons who were not impartial because of the impact of pre-trial publicity.
The district court found that the media coverage was 'by and large... both factual and non-inflammatory' and not such as to adversely affect juror impartiality. The fifteen jurors who were not excused all stated to the trial judge that they could set aside any opinions they had formed from news accounts, listen to the evidence presented in the courtroom, and decide the case solely on that evidence.
Under the settled rule, it must be shown that the prejudice., against a defendant is of such magnitude as to prevent him from receiving a fair and impartial trial; and where the evidence before the court is conflicting, the decision will not be reversed on appeal(citation omitted). There was overwhelming evidence against Yager, and he has not shown that the setting of the trial was inherently prejudicial or that actual prejudice can be inferred from the jury-selection process of which he complains (citation omitted). We conclude that the district court did not abuse its discretion in denying Yager’s requested change of venue.
3. Challenge to two jurors
Continuing to focus on the jury, Yager expressed dissatisfaction with two jurors, who were challenged for cause but retained by the district court. He claims Juror Wilson’s and Juror Chandler’s admitted preconceived opinions regarding Yager’s guilt should have disqualified the jurors for bias despite their assurances that they would set aside their opinions and be fair and impartial.
The decision whether a juror can render a fair and impartial verdict is directed to the sound discretion of the trial court and will not be reversed absent an abuse of discretion. It is not incumbent upon the trial judge to find jurors who are totally ignorant of the facts and issues involved in this case (citations omitted). The test has been set forth as follows:
'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. (citation omitted)'
Juror Chandler never indicated that he had formed an opinion as to Yager’s guilt or innocence. He did state that at the time of the arrest, he believed that the person they arrested was probably guilty of murdering Trooper Huff and that nothing he had seen in the media or discussed with others had changed that belief. He stated unequivocally to the court that his opinion would not affect his deliberations as a juror. Juror Wilson initially told the trial judge that she 'figured it cut and dry' from the television reports she had seen; but on further questioning by the court, she denied that she had formed an opinion. Juroy Wilson explained not that she was convinced the person who was arrested was the person who had murdered Trooper Huff, but that 'it was pretty much all right there in one spot where it all happened and they didn’t have to chase anybody or there wasn’t a question.' She claimed that she had not heard anything recently about the case and that she was prepared to set aside all she had learned and to listen to the evidence presented in count alone to reach a verdict.
Although not always dispositive, the trial judge is entitled to rely on assurances from venire persons concerning partiality or bias. (citations omitted) As the appellate court has previously stated:
'Having formed or expressed an unqualified opinion or belief that the defendant is guilty, or not guilty, of the offense charged indicates an implied bias and is thereby a basis for challenging a juror for cause (statutes and citations omitted).'
The jurors’ testimony above is not indicative of an opinion that would raise a presumption of partiality. We therefore hold that the decision not to excuse Jurors Wilson and Chandler was within the discretion of the trial court."
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JMO
