Given the amount of media coverage since last Saturday's mass shooting in Tucson, not to mention Wednesday's intense memorial service for the victims attended by President Obama, it may not be too long before Judy Clarke
, the veteran attorney representing murder defendant Jared Lee Loughner, formally requests to have her client's federal trial
moved out of Arizona. And it may be very difficult for federal prosecutors to convince the judge just assigned
to the case -- U.S District Judge Larry A. Burns, of San Diego -- to block the move.
The Sixth Amendment
may give the accused "the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime was committed." And federal law may otherwise give prosecutors a "home-court" advantage in most criminal jury trials. But United States v. Loughner
looks more and more likely headed for Southern California or elsewhere -- especially if Attorney General Eric Holder decides to turn the case into a capital one by seeking the death penalty against the 22-year-old alleged assailant whose mug shot is about as creepy
as a mug shot can get.
Federal prosecutors are required by law to bring a criminal case in the jurisdiction in which the alleged crime was committed. Federal judges, meanwhile, are required by law
"to set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administration of justice." In the vast majority of cases, this means that the accused stands trial in the community most directly affected by his or her alleged misconduct, an arrangement that typically gives the government an important advantage when selecting a jury of the defendant's "peers." That's why the typical federal criminal defendant in Tucson gets tried in Tucson.
But sometimes a crime is so heinous, or is so heavily publicized within a particular community, that a defendant's constitutional right to fair trial trumps the general practice. "The right to an impartial jury in the Sixth Amendment and the fundamental fairness requirement of the Due Process clause," one federal judge has written, "will override the place of trial provisions in both Article III and the Sixth Amendment in extraordinary cases." Rule 21 of the Federal Rules of Criminal Procedure helps provide
for just such a situation:
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."
It is this rule, and other legal precedents, that Clarke will rely upon if and when she asks Burns to move the Loughner trial out of Tucson or even out of Arizona. In effect, by seeking a change of venue, Loughner will be waiving his Sixth Amendment right to be tried where his alleged crimes were committed. In this respect, Clarke will have the benefit of reminding Burns that each and every one of Arizona's federal trial judges have recused themselves from presiding over the Loughner trial because it involves, after all, the murder of their boss, Arizona Chief U.S. District Judge John M. Roll
, who was killed in the assault after stopping by to see Rep. Gabrielle Giffords on his way home from church.
Even in egregious circumstances, it is difficult for defense attorneys to convince federal judges to move a murder trial away from the jurisdiction where the murder occurred. But it does happen from time to time. It happened, for example, following the Oklahoma City bombing in 1995, when U.S. District Judge Richard Matsch, assigned to the case from Colorado after a series of recusals by Oklahoma judges, moved the trials of Timothy McVeigh and Terry Nichols to Denver. At the time, Matsch said that the devastating attack upon the Alfred P. Murrah Federal Building, which killed 168 and wounded hundreds more, so greatly affected the potential jury pool in Oklahoma that a fair trial was impossible anywhere in the state. Matsch's February 1996 order on that point
remains the touchstone in this area of law.
There is even better precedent upon which Clarke may rely. The last federal judge to be murdered while in office was U.S. District Judge Robert Vance Smith, who was killed by a mail bomb
at his home in Alabama
in December 1989. All of the federal trial judges in the 11th Circuit at the time were recused from considering the case against Smith's murder suspect, Walter Leroy Moody Jr. In fact, all of the appellate
judges of the 11th Circuit were also recused. It was left to U.S. District Judge Edward J. Devitt, in Minnesota, to preside over the federal government's prosecution
of Moody. That trial was held in Minnesota and it resulted in a quick conviction
against Moody, who is now serving a life sentence. The special prosecutor on the case was none other than Louis Freeh
, who later became head of the Federal Bureau of Investigation.
The Moody case was not a capital one -- and it was moved out of Alabama. The McVeigh and Nichols' cases were
death penalty ones -- and they were moved out of Oklahoma. But Matsch's venue order makes clear that the capital nature of the bombing case -- the fact that jurors would likely be determining whether McVeigh and Nichols lived or died -- was a significant reason for his decision to move the trials. He wrote that ruling 10 months after the bombing and long after Attorney General Janet Reno had decided to seek the death penalty against the pair.
Will Clarke wait for Holder to make up his mind on the death penalty? Or will she move first? And, if she does, will the feds even contest a move to have the trial in Burns' hometown of San Diego (which is also, not for nothing, Clarke's hometown)? That will likely depend upon the continuing media coverage of the Loughner case. Either way, however, the venue fight, if it comes, will involve plenty of expert witnesses, testimony about pretrial publicity, and an intense discussion about the rights of Arizonans under federal law to sit in judgment of a young man charged with one of the state's most infamous crimes.