Zimmerman: Can the Prosecution Request the Trial be Changed to Another County?

October 23, 2012

Grey Winter Sky commented at 12:43 am:

“If a defendent feels that they cannot get a fair trial in the county/state that they live in, because the media has tainted the jury pool, and asks to have the trial moved elsewhere…..can the prosecution do the same thing? Since MOM seems to be conducting this trial in the court of public opinion, it would seen to be nearly impossible, as Prof. Leatherman pointed out, to find jurists that aren’t racist and very pro-George. Can the prosecution ask for the trial to be moved so that they will also have a fair trial?”

My Answer

That’s a very good question and I believe the answer is “No.”

A defendant has a Sixth Amendment right to be tried in the jurisdiction where the crime was allegedly committed.

The Sixth Amendment states:

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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

If the State files a motion for a change of venue and the defendant objects, which I think Zimmerman would do pursuant to O’Mara’s advice, I believe Judge Nelson would have to deny the motion because, if she granted it, she would have violated his Sixth Amendment right to have case tried in Seminole County with a Seminole County jury.

At 10:22 am, BettyKath also responded to Grey Winter Sky’s comment. She said,

“There were some NYC cops who were tried in Albany for killing an unarmed young man, Amadeu Dialo. (SoBs got off. They used a Black prosecutor who didn’t mention that the cops were all white undercover and the victim was a young Black immigrant. 41 shots were fired by these sharpshooters of which only 19 were used to kill the Amadeu.)”

My Answer

The four NYPD cops who shot and killed Diallo were defendants and the case was moved to Albany to protect their right to a fair trial, given the extensive adverse pretrial publicity against them in NYC. That is consistent with their Sixth Amendment right.

Zimmerman probably would be entitled to a change of venue, given the extensive pretrial publicity, but I don’t believe he is going to request it because he and his lawyers believe that publicity will actually help him, if he is tried in Seminole County.

Their opinion of Seminole County jurors must be disrespectful and low, isn’t it?

I think a possible solution, assuming Zimmerman is acquitted, may be a federal prosecution against him, and possibly others, for a federal hate-crime violation.

Think Rodney King, for example.

I’m going to do a little research on this and post an article in a few hours.

* * *

I’m back.

Welcome to the Practical-Impossibility Test.

What’s that, you ask?

Ask and you shall receive.

The Florida Court of Appeals addressed this issue in Sailor v. State, 733 So.2d 1057 (!999).

Sailor and three others were indicted in in Gadsden County for first degree murder and attempted first degree car jacking. The trial court severed their cases for trial.

Sailor was tried four times before he was finally convicted of manslaughter. The first three trials ended with hung juries. After the first two ended in mistrals, the prosecution asked the court to change venue (try the case in another county), but the trial court denied the motion. The prosecution then reduced the murder 1 charge to murder 2 so that it could prosecute Sailor with a 6-person jury, instead of a 12-person jury. But alas, the strategy did not work as the trial ended in yet another hung jury.

The Court of Appeals recounts what happened next:

After the third mistrial, the state again moved for a change of venue, alleging substantial media coverage of each mistrial (as well as of the co-defendants’ trials), and that a large portion of the population of Gadsden County had prejudged Mr. Sailor’s guilt or innocence.   Over defense objection, the trial court granted the state’s second motion for change of venue.

Mr. Sailor then petitioned this court for a writ of certiorari in an effort to prevent the transfer, and we concluded that

the trial court’s action in granting the state’s motion for change of venue without conducting an exhaustive effort to empanel a jury in Gadsden County was premature and constitutes a departure from the essential requirements of law.   See Beckwith v. State, 386 So.2d 836 (Fla. 1st DCA), review denied, 392 So.2d 1379 (Fla.1980).   Accordingly, the petition for writ of certiorari is granted, the trial court’s amended order transferring venue is quashed, and the matter is remanded to the Circuit Court in Gadsden County for further proceedings. Sailor v. State, No. 97-3798 (Fla. 1st DCA Oct. 17, 1997).

Not bad, but not good enough.

On remand, the trial court made its first effort after the third mistrial to empanel a jury, an effort that all but succeeded.

Starting with a jury pool of fifty-eight, the trial court ended up with five of the six jurors needed.   Before voir dire, the trial court excused fourteen potential jurors. The trial court excused an additional twenty-six jurors for cause after voir dire, leaving eighteen potential jurors on the venire.

The trial court allowed each side ten peremptory challenges.   Once the defense exercised four peremptory challenges and the state exercised nine peremptory challenges, only five jurors remained.   Mr. Sailor declined to accept a five-person jury, and the trial judge declared a mistrial, without ordering enforcement of any of the outstanding jury summonses  or making any other attempt to seat another juror.

(Emphasis supplied)

Note the italicized material, as it is significant.

Meanwhile, back in the jungle:

Of four attempts to seat juries in this case, three proved successful.   Before the first degree murder charge was dropped, fourteen jurors were reportedly selected for the first trial and thirteen jurors were reportedly selected for the second trial.   Like the pending retrial, the third trial only required a six-person jury, and the trial court could have seated five jurors this time.

This record does not establish that the court made an “exhaustive attempt” to seat a jury before declaring a mistrial or that additional effort would not have proven successful.   See Rhoden, 179 So.2d at 607 (reversing grant of a change of venue over defense objection where the trial court exhausted the venire in selecting five jurors).

Help, get me out of this freakin’ wilderness! What’s that rule, again?

Once upon a time a very long time ago, in  Ashley v. State, 72 Fla. 137, 72 So. 647, 648 (1916), the Florida Supreme Court held:

Where an application in a criminal prosecution for a change of venue from the county where the crime was committed is made by the prosecuting attorney, and the accused objects thereto, the matter should be tested in some way so as to make it to clearly appear that it is practically impossible to obtain an impartial jury to try the accused in that county.

And there you have it. Judge Nelson must deny a prosecution motion for a change of venue, unless it would be “practically impossible” to seat a fair and impartial jury in Seminole County. Assumptions or presumptions wold not suffice. She would have to try, try, and try again.

BTW, the trial court eventually seated a 6-person jury in the Sailor case and it found him guilty of manslaughter without a firearm and attempted armed car jacking. Sailor v. State, 816 So.2d 182 (Fla. 1st DCA 2004).

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