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    Sam's motion for change of venue

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    AndresEscobar

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    Sam's motion for change of venue

    Post by AndresEscobar on Tue Feb 16, 2010 5:04 pm

    Here's some research i've pulled up on the grounds for a motion to change venue in VA. Bold is mine.

    "Venue in a criminal proceeding in Virginia is located in the county or city where the offense was committed. A motion for a change of venue must be made at least seven days before the day fixed for trial. Either the Commonwealth or the accused may move for a change of venue."

    These are the procedures for a motion to change venue. They are self-explanatory.

    A former Rule of Court provided that the only grounds for a change of venue is “that there exists in the place where the prosecution is pending so great a prejudice against the accused that he cannot obtain a fair and impartial trial.” “Merely showing extensive publicity or general knowledge of a crime or of the accused, including his criminal record, does not justify a change of venue.” Courts recognize a presumption that the accused can receive a fair trial in the locality where the offense occurred; thus, the burden to overcome this presumption rests upon the party moving for a change of venue.

    The “sheer volume” of media coverage does not establish that the accused cannot receive a fair and impartial trial. This is especially true when the media accounts are “fairly accurate and temperate accounts” as distinguished from “outrageous press behavior” designed to inflame prejudices. Merely conclusory affidavits asserting that the accused cannot receive a fair trial will not justify a change of venue, whereas affidavits from a diverse group of residents which disclose the polarization of public opinion may justify a change of venue
    .

    Basically, what this means is that there is a new test for a motion to change of venue. The burden is placed on the moving party (the defense) to prove that a motion for change of venue is justified. Now, they have to show more than just Sam's not getting a fair trial here. Generally, they will show the type of press coverage, local and national, and will get affidavits from people around Farmville that shows a general prejudice toward Sam getting a fair trial. Shouldn't be too hard to do.

    The difficulty or ease with which an impartial jury is selected may be evidence of community prejudice. In Shifflett v. Commonwealth, the court noted that only eight prospective jurors were excluded because of prejudice or fixed pretrial opinions, and a disinterested and impartial jury was selected in less than a day. The court should grant a change of venue when the voir dire indicates that “(1) there has been extensive publicity or widespread knowledge of the crime or the accused, (2) this publicity has generated a widespread feeling of prejudice within the community, and (3) this feeling of prejudice is reasonably certain to prevent a fair and impartial trial.”

    This means that a judge can take a motion for change of venue under advisement and make the decision based on how jury selection goes.

    In considering a change of venue motion, the court must look to the conditions at the time of the trial, not to the conditions at the time of the crime. The trial court's ruling upon a change of venue motion rests within the court's sound discretion and “will not be reversed unless the record affirmatively shows that there has been an abuse of discretion.” Before granting a motion to change venue the trial court may consider whether either sequestration of the jurors or a continuance will negate local prejudice and hostilities, or whether jurors should be summoned from another county or city.”

    Again, pretty self explanatory. Basically, the judge has discretion and will only be reversed if he is found to have abused his discretion, which is a high burden.

    It is error for the trial court to deny a motion for a change of venue solely because the court had ultimately seated an impartial jury. “It is the ease of seating the jury that is the relevant factor, not the ultimate result of that process…. Measuring the ease of impaneling a jury is an important tool in considering a request for change of venue. It allows the trial court to take into account a cross section of the community so as to understand the pervasiveness of prejudice. It also allows the trial court to keep in mind that justice must not only be fair, it must also be above suspicion, because the more difficult it is to seat a jury, the more likely it is that the public will believe the judicial process to be tainted by prejudice.”

    The process of selecting a jury is a factor in determining whether the judge abused its discretion in not allowing a motion for change of venue, not the result.

    If the trial court takes the motion for a change of venue under advisement pending the outcome of voir dire, it is incumbent upon defendant “to renew the motion before the jury was empanelled and sworn, or at least remind the court that it was still pending and that he wanted the court to rule on it.”

    More procedural issues.
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    ericclimbs

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    Re: Sam's motion for change of venue

    Post by ericclimbs on Tue Feb 16, 2010 6:22 pm

    thanks Andres (since we don't have a "thanks" button here)
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    AndresEscobar

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    Re: Sam's motion for change of venue

    Post by AndresEscobar on Wed Feb 17, 2010 12:09 am

    really? no one wants to discuss this?
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    claudicici

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    Re: Sam's motion for change of venue

    Post by claudicici on Wed Feb 17, 2010 1:26 am

    there's not much to discuss here for me...he DEFINETELY needs a change of venue,no doubt...
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    ziggy

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    Re: Sam's motion for change of venue

    Post by ziggy on Wed Feb 17, 2010 5:15 am

    I honestly don't believe there has been extensive media coverage but there can certainly be prejudice in the community nonetheless. It's hard for me to see the defense being able to prove it until they start trying to seat a jury. Would he be a bit late to the party if the defense attorney waited until then? I know he's got to request it, just has to, but is there a strategy as to when he will?

    I want Sam to get a fair trial. If that means they move it, that's fine. I'm sure the judge will get a feel for what's going on in the community and no doubt it is a goal to avoid any issues that will extend the already long appeals process.
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    claudicici

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    Re: Sam's motion for change of venue

    Post by claudicici on Wed Feb 17, 2010 5:49 am

    god,I keep looking for the "thanks" button..
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    Heroine
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    Re: Sam's motion for change of venue

    Post by Heroine on Wed Feb 17, 2010 5:55 am

    claudicici wrote:god,I keep looking for the "thanks" button..
    Me too! I keep searching to see if this forum will even allow that. I'd really like a thanks button!
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    dangrsmind

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    Re: Sam's motion for change of venue

    Post by dangrsmind on Wed Feb 17, 2010 10:44 am

    Heroine wrote:
    claudicici wrote:god,I keep looking for the "thanks" button..
    Me too! I keep searching to see if this forum will even allow that. I'd really like a thanks button!

    The thanks button is a nice feature, but I think we can live without it.

    THANKS!
    THANKS!
    THANKS!
    THANKS!
    THANKS!
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    AndresEscobar

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    Re: Sam's motion for change of venue

    Post by AndresEscobar on Wed Feb 17, 2010 12:12 pm

    ziggy wrote: I honestly don't believe there has been extensive media coverage but there can certainly be prejudice in the community nonetheless. It's hard for me to see the defense being able to prove it until they start trying to seat a jury. Would he be a bit late to the party if the defense attorney waited until then? I know he's got to request it, just has to, but is there a strategy as to when he will?

    I want Sam to get a fair trial. If that means they move it, that's fine. I'm sure the judge will get a feel for what's going on in the community and no doubt it is a goal to avoid any issues that will extend the already long appeals process.

    It's not that hard to prove. Print out some internet comments, go find some folks in Farmville to sign affadavits about what they know and how they feel about the case. Remember: there was a lot of outrageous press coverage involving horrorcore. That comes into play. I would request it early so the prosecutor knows my intentions to request one.

    What could happen is if the judge is not convinced the judge will take it under advisement pending jury selection.

    PS zig: is that your property book in your pic?
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    ziggy

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    Re: Sam's motion for change of venue

    Post by ziggy on Wed Feb 17, 2010 1:54 pm

    That would be my Contracts book because I love it soooo much (blech!) No

    Thanks for the info. on the process... so if the information brought forth by the defense is not entirely convincing then the judge takes it on advisement and then when jury selection begins and more clarity emerges, then a final decision can be made.

    Think they will be granted the change? Looks like it's all so far into the future - Sam just waits - the victims' families just wait. Maybe if enough time goes by there will be less prejudice to Sam in that community when jury selection begins in forever from now.


    Hey - a juggalo emoticon: clown
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    Heroine
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    Copy and paste...

    Post by Heroine on Thu Feb 18, 2010 2:01 am

    THANKS!
    THANKS!
    THANKS!
    THANKS!
    THANKS!

    haha!
    cheers
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    AndresEscobar

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    Re: Sam's motion for change of venue

    Post by AndresEscobar on Thu Feb 18, 2010 12:12 pm

    ziggy wrote:That would be my Contracts book because I love it soooo much (blech!) No

    Thanks for the info. on the process... so if the information brought forth by the defense is not entirely convincing then the judge takes it on advisement and then when jury selection begins and more clarity emerges, then a final decision can be made.

    Think they will be granted the change? Looks like it's all so far into the future - Sam just waits - the victims' families just wait. Maybe if enough time goes by there will be less prejudice to Sam in that community when jury selection begins in forever from now.


    Hey - a juggalo emoticon: clown

    Alyssa Bustamante is getting an out of town jury. The DC sniper had venue changed. I think it's highly probable Sam gets one or the other. But, I'm not the judge, so who knows.

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    Re: Sam's motion for change of venue

    Post by Guest on Sat Feb 27, 2010 2:26 pm

    Yeah, definitely need to move the trial. The community is FURIOUS and the death penalty is mild punishment compared to what I've heard some people say.

    On a slightly different note, don't know if you guys have heard, but about a month ago there were eight murders in a town about 40 minutes from Farmville. Like Sam, the killer murdered some at the house, then waited for others coming to check on them, and killed them, too. A whole family was wiped out, including three teenagers and a toddler.
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    dangrsmind

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    Re: Sam's motion for change of venue

    Post by dangrsmind on Sun Feb 28, 2010 12:18 am

    We did hear about it, but apart from the geography the case seems unrelated.
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    tapu

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    Re: Sam's motion for change of venue

    Post by tapu on Sun Feb 28, 2010 12:24 am

    unrelated but... it might be used to portray the community in a certain way, having been devastated by two mass/spree killings so close in time....

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    Re: Sam's motion for change of venue

    Post by Guest on Sun Feb 28, 2010 6:13 am

    dangrsmind wrote:We did hear about it, but apart from the geography the case seems unrelated.

    Oh, totally unrelated. Don't think I suggested it was. The nature of it was similar in the respect that the killer murdered within the home, at the door, and then waited for others to arrive checking on family that had not returned home. And extremely unusual that two such crimes occurred within such proximity within months of each other. If Farmville is a quiet backwater, Appomattox, well, something even beyond that.
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    dangrsmind

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    Re: Sam's motion for change of venue

    Post by dangrsmind on Sun Feb 28, 2010 11:08 am

    There were also two other murders recently near Farmville. In one case a man shot his wife and her younger lover outside of a nightclub, then turned the weapon on himself.

    Then there was an unidentified body found up by the Sandy River Reservoir.

    All in 2009.
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    ziggy

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    Re: Sam's motion for change of venue

    Post by ziggy on Mon Mar 01, 2010 3:21 am

    snipped from Andres's post above...
    former Rule of Court provided that the only grounds for a change of venue is “that there exists in the place where the prosecution is pending so great a prejudice against the accused that he cannot obtain a fair and impartial trial.” “Merely showing extensive publicity or general knowledge of a crime or of the accused, including his criminal record, does not justify a change of venue.” Courts recognize a presumption that the accused can receive a fair trial in the locality where the offense occurred; thus, the burden to overcome this presumption rests upon the party moving for a change of venue.

    How does the community being prejudiced "in general" by other acts not committed by Sam figure in to the venue change motion? Can the Appomatix shootings and their affect on the community make a difference in Sam's case?

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    Re: Sam's motion for change of venue

    Post by Guest on Mon Mar 01, 2010 10:18 am

    ziggy wrote:snipped from Andres's post above...
    former Rule of Court provided that the only grounds for a change of venue is “that there exists in the place where the prosecution is pending so great a prejudice against the accused that he cannot obtain a fair and impartial trial.” “Merely showing extensive publicity or general knowledge of a crime or of the accused, including his criminal record, does not justify a change of venue.” Courts recognize a presumption that the accused can receive a fair trial in the locality where the offense occurred; thus, the burden to overcome this presumption rests upon the party moving for a change of venue.

    How does the community being prejudiced "in general" by other acts not committed by Sam figure in to the venue change motion? Can the Appomatix shootings and their affect on the community make a difference in Sam's case?

    I can only report on what I've heard from others in both communities (and Appomattox is sort of a bedroom community for Lynchburg and Farmville, so all three are part of a larger community for working/shopping/school) and residents are overwhelmingly out for blood. Furious. No torture or death penalty is good enough for Sam and the Speight guy. I do not know personally of any person who feels otherwise (except for me, with regard to Sam). I am sure there are others out there. I just don't move in those circles much. What I hear comes from close family members and friends living in Appo and Farmville. I work in a field where most colleagues are not from here and our community is rather insulated. But as for the local masses -- out for blood. There is NO way either could get a fair trial in Central Virginia.
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    AndresEscobar

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    Re: Sam's motion for change of venue

    Post by AndresEscobar on Mon Mar 01, 2010 11:02 am

    ziggy wrote:snipped from Andres's post above...
    former Rule of Court provided that the only grounds for a change of venue is “that there exists in the place where the prosecution is pending so great a prejudice against the accused that he cannot obtain a fair and impartial trial.” “Merely showing extensive publicity or general knowledge of a crime or of the accused, including his criminal record, does not justify a change of venue.” Courts recognize a presumption that the accused can receive a fair trial in the locality where the offense occurred; thus, the burden to overcome this presumption rests upon the party moving for a change of venue.

    How does the community being prejudiced "in general" by other acts not committed by Sam figure in to the venue change motion? Can the Appomatix shootings and their affect on the community make a difference in Sam's case?


    You ask great questions, Zig, and this is why I know you'll be a great attorney.

    The community being prejudiced, as you put it, "in general", would be an argument I would make but it would not be my chief argument. In fact, it would be a huge error to make that the crux of your argument.

    What I would do, and what I imagine Sam's attorneys will do, is get a bunch of affidavits from locals saying how they feel about the issue. Honestly, when it comes to violent crime, people have no problem "tellin' it like it is". So procuring a bunch of affidavits from locals that show the prejudice in the community wont be difficult.

    Then, I would supplement them with some internet comments made on local newspapers and maybe even Websleuths or the like.

    What is ironic is prejudice towards Sam will ultimately help him. Prejudice is in my opinion most peoples downfall. Even prosecutors. Maybe even especially prosecutors. Prosecutors are bound by additional ethical considerations, which makes sense when you consider the stakes of a criminal trial. This is something you have to be very aware of as you begin your career, Zigs. Defense attorneys also tend to be "Ethics Hawks". I would consider myself one. The reason? Ethical considerations often help us. My first case the prosecutor thought she could bully me around a bit and cross a few lines because she knew it was my first case. She thought she could rattle me and catch me off guard and intimidated. I kept my cool, objected at appropriate points, and eventually caught her in an error that led to a mistrial.

    Filing a motion to change venue is usually part of the trial process, so I've done a few of them. However, my best experience with one was when I was put on a case that had been moved from rural Illinois (I wasn't a principle attorney but assisting another). People on the outside tend to look at them as a loss for the prosecuting attorney if they lose on the motion. But, if they have the goods to convict, the defendant should be able to be found guilty anywhere. Not just in the community where it occurred, but a neutral, detached jury. If a prosecutor's case requires a prejudiced jury to convict, then that person should not be convicted.
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    dangrsmind

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    Re: Sam's motion for change of venue

    Post by dangrsmind on Mon Mar 01, 2010 1:38 pm

    What is ironic is prejudice towards Sam will ultimately help him. Prejudice is in my opinion most peoples downfall.

    Good post
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    ziggy

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    Re: Sam's motion for change of venue

    Post by ziggy on Mon Mar 01, 2010 5:16 pm

    Andres - thanks for the reply - sincerely because it is so helpful in so many ways.
    What you have said makes perfect sense but I also wonder on the prosecution side...perhaps it's not the need of a prejudiced jury that creates the want for no change of venue but the fact that it may be an additional financial burden on all and many times with high profile cases, the folks in surrounding areas that are options for trial have heard enough about the case too.

    If what Atlantica is saying about the general feeling in the community, as a prosecutor I would want the change of venue; just fight it very loosely. Even though there will be an automatic appeal on a guilty verdict in a capital case - I would like to win my case fair and square with no appealable issue. I would be crucified for saying that in real life wouldn't I?
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    smartie74

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    Re: Sam's motion for change of venue

    Post by smartie74 on Wed Mar 03, 2010 5:17 pm

    ziggy wrote: I honestly don't believe there has been extensive media coverage but there can certainly be prejudice in the community nonetheless. It's hard for me to see the defense being able to prove it until they start trying to seat a jury. Would he be a bit late to the party if the defense attorney waited until then? I know he's got to request it, just has to, but is there a strategy as to when he will?

    I want Sam to get a fair trial. If that means they move it, that's fine. I'm sure the judge will get a feel for what's going on in the community and no doubt it is a goal to avoid any issues that will extend the already long appeals process.

    How 'bout if the defense atty is at lunch in an adjoining county and someone is talking about it at the neighboring table and says that they hope they throw the book at him. Do you think that could be mentioned and used as a reason for change of venue?
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    AndresEscobar

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    Re: Sam's motion for change of venue

    Post by AndresEscobar on Wed Mar 03, 2010 6:25 pm

    smartie74 wrote:
    ziggy wrote: I honestly don't believe there has been extensive media coverage but there can certainly be prejudice in the community nonetheless. It's hard for me to see the defense being able to prove it until they start trying to seat a jury. Would he be a bit late to the party if the defense attorney waited until then? I know he's got to request it, just has to, but is there a strategy as to when he will?

    I want Sam to get a fair trial. If that means they move it, that's fine. I'm sure the judge will get a feel for what's going on in the community and no doubt it is a goal to avoid any issues that will extend the already long appeals process.

    How 'bout if the defense atty is at lunch in an adjoining county and someone is talking about it at the neighboring table and says that they hope they throw the book at him. Do you think that could be mentioned and used as a reason for change of venue?

    They could ask that person to sign an affidavit and attach it but there would have to be some form of record. An attorney couldn't just say "Oh, I heard a guy say this."
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    AndresEscobar

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    Re: Sam's motion for change of venue

    Post by AndresEscobar on Wed Mar 03, 2010 11:13 pm

    ziggy wrote:Andres - thanks for the reply - sincerely because it is so helpful in so many ways.
    What you have said makes perfect sense but I also wonder on the prosecution side...perhaps it's not the need of a prejudiced jury that creates the want for no change of venue but the fact that it may be an additional financial burden on all and many times with high profile cases, the folks in surrounding areas that are options for trial have heard enough about the case too.

    If what Atlantica is saying about the general feeling in the community, as a prosecutor I would want the change of venue; just fight it very loosely. Even though there will be an automatic appeal on a guilty verdict in a capital case - I would like to win my case fair and square with no appealable issue. I would be crucified for saying that in real life wouldn't I?

    I guess I'll finally respond to this.

    Financial burdens are always balanced with the liberty interest at stake. Since the liberty interest here is a young man's life, the financial burden would have to be astronomical. If there are no appealable issues, the other attorney sucked.

    Yeah, prosecutions are politically motivated. The pressure to get convictions is really high. So, most want them by any means possible.

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