On Those Change of Venue Rumors for Jared Loughner
The Washington Post reported anonymous federal sources said a federal judge in Arizona would decide on moving the trial of Jared Loughner to San Diego and it would probably happen in the next few weeks. It predicted the trial would be moved. The Justice Department responded with a statement it would oppose any motion to move the trial out of Arizona.
Slow down. First, the Arizona federal bench has recused itself and only Judge Larry Burns, who has been assigned to preside over the case by designation, can make the decision.
Second, and more importantly, the trial can only be moved if Jared Loughner asks for it to be moved. [More...]
Fed. Rule 21(a) states:
The court upon motion of the defendant shall transfer the proceeding as to that defendant to another district whether or not such district is specified in the defendant's motion if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district.
As the advisory committee notes to the rule state:
[A] change of venue can be granted only on the motion of a defendant since the constitutional requirement for trial in the state and district where the offense was committed under Article III and Amendment VI is a right of the defendant.
The Sixth Amendment says: (my emphasis)
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed--
Article III of the Constitution states that criminal trials shall be held in the state where such crimes have been committed.
The Due Process Clause of the Fifth Amendment requires fundamental fairness in the prosecution of federal crimes. The import of Rule 21 is that the fundamental fairness requirement can override the place of trial provisions in both Article III and the Sixth Amendment.
If Loughner moves for a change of venue, Judge Burns will decide if the trial should be moved and if so, the place to which it is moved.
The decision as to whether to seek the death penalty is likely to play a large role. As Judge Matsch said said in his ruling the OKC bombing trials would be moved from Oklahoma to Colorado:
Because the penalty of death is by its very nature different from all other punishments in that it is final and irrevocable, the issue of prejudice raised by the present motions must include consideration of whether there is a showing of a predilection toward that penalty.
As to the victims, Judge Matsch said:
In reaching this ruling, the court is acutely aware of the wishes of the victims of the Oklahoma City explosion to attend this trial and that it will be a hardship for those victims to travel to Denver. The attorneys for the government have earnestly argued that statutory provisions for victims must be considered by the court.
...The interests of the victims in being able to attend this trial in Oklahoma are outweighed by the court's obligation to assure that the trial be conducted with fundamental fairness and with due regard for all constitutional requirements.
The decision whether to seek the death penalty does not have to be made when the Indictment is returned. And a lot of factors go into the decision. For example, DOJ rules require that before making the final decision, the defense must be provided an opportunity to present mitigation. See here and here.
Department of Justice Review
In any case in which (1) the United States Attorney recommends that the Attorney General authorize seeking the death penalty, or (2) a member of the Capital Review Committee requests a Committee conference, a Capital Case Unit attorney will confer with representatives of the United States Attorney's Office to establish a date and time for the Capital Review Committee to meet with defense counsel and representatives of the United States Attorney's Office to consider the case. No final decision to seek the death penalty shall be made if defense counsel has not been afforded an opportunity to present evidence and argument in mitigation..(my emphasis)
The OKC ruling has been cited by numerous other courts. The Supreme Court in the case of Enron's Jeffrey Skilling (not a death penalty case), recognized that "[t]he Constitution's place-of-trial prescriptions . . . do not impede transfer of the proceedings to a different district at the defendant's request if extraordinary local prejudice will prevent a fair trial." United States v. Skilling, 561 U.S. , 130 S. Ct. 2896, 2913, 177 L. Ed. 2d 619 (2010).
The process could take months. The defense may decide not to move for a change of venue until that decision is made.
Any motion by the defense is also likely to include reports by experts who have conducted surveys among Arizonians as to whether they would be more likely to recommend death in the event of a conviction and where the trial should be held. The Government will respond with its own experts and surveys. the Court will hold hearings. This process also is likely to take months.
It can't be said often enough - the death penalty is different. If the feds really want to increase the likelihood the trial will be held in Arizona, it should decide against bringing the death penalty.
For more on this topic, read Judge Matsch's decision.
Bottom line: Only if Jared Loughner asks for a change of venue, will Judge Burns decide whether the trial should be moved, and if so, to where. It's unlikely any request or decision is imminent.
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