Change of Venue - what does it take
A hearing was held this week was held in Waco, Texas to determine whether the trial of a local civic leader should be moved out of McLennan County. The individual was head of a local civic organization, and is accused of taking thousands of dollars. Few cases have generated this much coverage in Waco; reporters have even camped outside her house, and were there when she was arrested, and released from jail. Her attorneys are concerned that the coverage will prevent her from getting a fair trial, and tried to get the case moved. The judge denied the motion, which means the case will remain in Waco.
I've had many defendants tell me they needed to get their cases moved. Usually its because there have been a couple of news stories about the case, or they may think the judge is biased against them.. Few cases are notorious enough to even pursue a motion. Despite what most defendants think, potential jurors rarely know anything about the cases are selected for. Even if a few do know something, the burden for obtaining a change of venue is almost impossible to overcome.
So what it does it take to move a case to another county? The law is fairly broad - you have to establish the publicity has been so extensive that you cannot get a fair trial. Publicity alone is not enough; it has to be negative publicity, or coverage which leaves no doubt that the defendant is guilty. You try to establish that through affidavits from members of the community, and producing evidence of the coverage. Of course, if you submit an affidavit, the State is probably going to submit affidavits from people who believe your client can receive a fair trial. I've always thought that was silly way to handle the issue, because you are going to be able to find someone on both sides. I don't see how such affidavits can help a court decide whether the defendant can receive a trial; he can only do that by seeing the publicity and coverage, which as a member of the community, he has probably already seen.
This is one of the areas where a judge has almost total discretion. There are only a handful of cases that have been reversed because the court refused to grant a change of venue. The bottom line is that if the judge wants to try the case, he can. I've been involved in two change of venue cases. One was a capital murder defendant, who was being tried a second time; the first case generated a lot of publicity, and the court felt it was only fair to move it out of the county. The other was Kenneth McDuff, who had been accused of kidnapping a convenience clerk. It took several weeks to apprehend him, during which time there was constant coverage of his past, which included a prior conviction for capital murder. I have no doubt the judge (the same one in both cases) could have denied the motion to change venue in both those cases, but he knew that was not the right thing to do.
There is a lot to be said for trying defendants before their peers. However, that shouldn't trump the right to a fair trial. If there is some chance the potential jurors will have already made up their minds, a court should not hesitate to move the case to another county that has not been subjected to the publicity.
Defendants in high profiles cases are are in a tough enough position - they don't need the added problem of fighting both the facts, and the press.
It is crazy for this case to be tried in this community. It is no more than a publicity stunt for this judge and it probably will backfire on him with a reversal. Why else would someone take a chance on it in a case such as this?