A fair argument

Two ongoing local criminal cases shine a spotlight on a courtroom strategy that’s often used in high-profile cases but is rarely effective, attorneys and legal experts say.
Lawyers for Lynchburg Mayor Carl Hutcherson, who is charged with fraud, and Moneta resident Mark de Tournillon, accused in a fatal Smith Mountain Lake boating accident, want the trials moved out of town.
In de Tournillon’s case, his attorneys say widespread and biased media coverage has made it impossible for him to get a fair trial.
Federal prosecutors in Hutcherson’s case say intense press coverage and Hutcherson’s status as a public figure mean the trial should be moved to Charlottesville or Roanoke.
“Ultimately, from both sides’ standpoint, it’s a tactical maneuver in order to get a shot at what they perceive to be a jury that hasn’t formed an opinion about it,” said Lynchburg defense attorney Leigh Drewry, who is not involved in either case.
Judges in both cases are waiting to rule on the lawyers’ attempts to move the trials, called “change of venue motions.”
At a Friday hearing, Senior U.S. District Judge James Turk said he’ll decide whether to move Hutcherson’s trial by the middle of this week.
Bedford Circuit Judge James Updike said last week the court would try to find an impartial jury in de Tournillon’s case before he decided whether to move the trial.
Prosecutors and defense attorneys alike can attempt to change trial locations, though defense attorneys are more likely to try it.
John C. Jeffries, dean of the University of Virginia School of Law, said that it is unusual for judges to consider moving a trial in all but the most high profile of cases.
It’s even more rare for prosecutors to make the motion.
“I think you can say that is a reversal of the usual circumstance,” Jeffries said.
Jack King, spokesman for the National Association of Criminal Defense Lawyers, said it is so rare for a prosecutor to request a change of venue because “it’s the defendant’s trial.”
“In spite of what the government might say, it’s not the people’s trial,” King said.
The government’s motion in the Hutcherson case says intense press coverage and Hutcherson’s position as mayor make picking a fair jury in Lynchburg difficult.
“It’s always difficult picking a jury,” King said. “(Prosecutors) don’t have much of a prayer here.”
Hutcherson’s defense addressed that point at last week’s pre-trial hearing. They said the normal jury selection process should whittle the pool down to 14 fair and impartial jurors.
In de Tournillon’s case, his lawyers went a step further.
Defense attorney William Stanley said at the hearing that media coverage was not only intense and widespread but “so negative, so one-sided, so slanted against Mr. de Tournillon.”
“Quite frankly, your honor, it has tainted this jury pool beyond rescue,” Stanley told Updike.
The law guarantees a defendant a right to a trial in the place where his crimes are said to have occurred.
The burden of arguing why that should be different is upon the lawyer asking for a change of venue.
“The best way to describe it is, you want to make sure that the jurors are not emotionally involved in it, that they don’t have any preconceptions,” Drewry said.
Federal prosecutors in Hutcherson’s case want his trial, scheduled for the week of April 24, moved to Charlottesville.
De Tournillon’s lawyers want his trial, scheduled for June 20, moved from Bedford County to somewhere east of Farmville or north of Harrisonburg.
Though judges have thus far not moved those upcoming trials, change-of-venue motions have been granted in other high-profile cases locally, statewide and nationally.

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The nation’s highest court took up a landmark case in 1966 that eventually led to a convicted murderer being retried elsewhere and acquitted.
Dr. Sam Sheppard, whose case inspired the movie and television series “The Fugitive,” was convicted in his Ohio hometown of murdering his wife.
His lawyers asked the U.S. Supreme Court to reverse his conviction, claiming he did not receive a fair trial.
Newspapers published front-page headlines before the trial asking “Why Isn’t Sam Sheppard in Jail?” Media outlets published names and addresses of potential jurors.
The court ruled that during the trial jurors were not properly shielded from inaccurate reports.
The Supreme Court overturned Sheppard’s conviction. The trial moved and he was acquitted.

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In 1990, James Hicks, a teacher from Evington, was charged with - and later acquitted of - hiring a Lynchburg man to kill his wife, Lena Hicks.
Hicks’ attorneys wrote in a motion that court proceedings had “produced an almost carnival atmosphere” around the case.
Campbell County Circuit Judge Samuel Johnston Jr. ordered the trial moved to Colonial Heights, more than 100 miles away.
He said then media coverage and rumors surrounding the case had made it “well nigh impossible” to hold a fair trial.

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In 2004, a federal judge decided that Richard Burrow’s second fraud trial would not take place in Lynchburg or Roanoke because of news coverage.
Burrow was charged with defrauding banks and the state while raising money for the National D-Day Memorial. He also was charged with perjury.
His 2002 and 2004 trials ended in mistrials with hung juries.
In 2004, prosecutors, not defense attorneys, sought the new trial spot.
Assistant U.S. Attorney C. Patrick Hogeboom III argued that “inflammatory, prejudicial pre-trial publicity” had influenced jurors in Burrow’s first trial and would do the same in his second.
“They just flat refused to look at evidence,” Hogeboom said then. “They had made up their minds.”
Turk gave the Burrow defense team a choice of five cities. The team chose Charlottesville.

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Judges moved the highly publicized “sniper trials” of Lee Boyd Malvo and John Allen Muhammad in 2004. They were linked to 13 killings in Virginia and other states.
Malvo was tried in Chesapeake. It was the first case in 25 years to be moved out of Fairfax County, according to CNN. Muhammad’s case moved from Prince William County to Virginia Beach.
The snipers’ attacks seemed random. They shot at people at gas stations or outside hardware stores with no apparent pattern.
That inspired “significantly different” emotions in people, Drewry said.
“All of the potential jurors in those localities were also possible victims,” Drewry said.

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Scott Peterson was charged with and later convicted of killing his wife, Laci, and their unborn son in California.
He saw two different outcomes of change-of-venue attempts in the same 2004 trial.
His case moved from Modesto, Calif., to Redwood City after a judge said pre-trial publicity had made it impossible for him to get a fair trial, according to The San Francisco Chronicle.
The second judge denied a Peterson attorney’s request to move the trial again during the penalty phase.
The judge said no locality in California had escaped the “saturation news coverage,” according to the Chronicle.

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Zacarias Moussaoui’s lawyers were not as successful with their change of venue attempt. Moussaoui is charged in connection with the terror attacks of Sept. 11, 2001.
His lawyers asked the trial be moved to a “more neutral” location such as Denver, Colo., according to court documents available on the Internet.
A judge denied the motion and his trial has stayed in Alexandria