21 June 2003

When the red herrings are ignored this opinion boils down to what I believe is supposed to be an argument for keeping the Malvo case in Fairfax??? The stuff about juries is incomplete and misleading (although it would take at least a 5-10 page article to explain the evolution of the jury well so perhaps this is forgivable). Then after a paragraph on venue change it goes on to a number of other remedies which have been tried without spectacular success (and are not even being suggested in this case). His one paragraph on change of venue:
Some courts have granted changes of venue. In Timothy McVeigh's case, for example, the trial was moved from Oklahoma City, where many prospective jurors knew victims of the 1995 bombing of a federal office building, to Denver. A change of venue can avoid the worst excesses of mob mentality in a community victimized by the perpetrator of a crime, but in today's information age it does not come close to guaranteeing an "untainted" jury pool.
And at the end he offers his "solution:"
How then should the courts ensure fairness in the sniper cases and other high-profile criminal trials? In selecting a jury, the judge should ask each prospective juror, "Have you heard or seen something about this case?" If the prospective juror answers yes, the judge should then ask, "Given what you have heard and seen, can you give the defendant(s) a fair trial?" If the prospective juror answers yes, the judge should trust the truthfulness of the response and seat the juror.
Has this man ever tried a jury trial? Jurors who want to convict your client will lie; others will not even realize their bias. Anyone who works in the courts hears the stories about the guy who went home and bragged to his friends that he got on the jury so now he can make sure that bastard fries or the lady who did not disclose she is the Aunt of one of the victims (and these are cases where it was caught before the trial proper started).

Change of venue is the best way to guard against these events. He's right; there is absolutely no way that you can guarantee there will be no bias (the test is jury bias - not taint). Nonetheless, if you moved this case to Roanoke (randomly chosen example) you are far less likely to run into someone who felt directly threatened and you don't run into relatives, friends or friends of friends (at least not many). People would still know but they will not feel directly involved and a fair trial is much more likely. The best solution for this case is to move it to a jurisdiction which was not in proximity too the threat and allow an indepth voir dire unlike Virginia's usual truncated mass voir dire. It will at least guarantee a fair trial. The result will probably be the same but at least we will be certain it was reached fairly.


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