Venue changes rare in court proceedings "It would be nice to think that Mr. Mehserle can get a fair trial in Alameda County, but it's clear to me that he can't and he won't," Rains said after Mehserle was ordered to stand trial.
Rains argues that Mehserle, who has pleaded not guilty to murder charges, accidentally shot Grant, a Hayward resident, when Mehserle mistook his own handgun for a stun gun. Rains also cites the international media attention generated by amateur videos of the shooting and violent protests that followed the incident.
And he notes that two judges have said publicly that they do not believe Mehserle's defense.
However, Michael Cardoza, a criminal defense attorney who attended Mehserle's preliminary hearing, said, "I think they can get an impartial jury. You'd be surprised, but there are some out there who will say, 'I've heard something about it, but I didn't follow it.'"
As in most states, judges in California rarely move criminal trials. But this year attorneys in several high-profile cases want proceedings relocated because they believe the local jury pool has been contaminated by publicity and the prominence or heinousness of the alleged crimes.
In addition to the Mehserle case, a venue-change request also is expected in the case of Melissa Huckaby, a Sunday school teacher accused of kidnapping, raping and killing 8-year-old Sandra Cantu this spring in Tracy.
But prosecutors have taken steps to prevent that by, among other things, moving to keep grand jury transcripts sealed.
"We don't want this case tried anywhere else," San Joaquin County prosecutor Thomas Testa said. "We want it to remain right here."
Venue changes are a long shot in California, where the state Judicial Council reports that only four of the scores of requests during the past two years have been granted.
"It's rare everywhere. Very, very rare," said Robert Weisberg, a law professor and director of the Criminal Justice Center at Stanford University. "The court system does not like it, because they're very complicated and expensive."
Trial relocations are so uncommon nationwide that the U.S. Department of Justice or the National Center for State Courts in Williamsburg, Va., do not keep such statistics. Nor do three of the five largest states: Texas, New York and Illinois.
To win a venue change, defense attorneys must prove that their clients cannot get justice in the county where the crime occurred. And they commonly argue that media attention or community bias preclude a fair trial. Sometimes they contend that the community is so small that potential jurors have a personal connection with the defendant.
"The burden on the defense is fairly hard," said Mike Vitiello, a professor at the University of Pacific McGeorge School of Law in Sacramento. "Counsel has to do substantial investigation, polling prospective jurors to show not only familiarity with the case but a settled view of the guilt of the defendant."
In another case with racial overtones, Columbus Allen Jr., a black man accused of killing white California Highway Patrol Officer Earl Scott in 2006, won a change of venue from Stanislaus County.
In his ruling, Judge Hurl Johnson invoked the last case moved from the county — the trial of Scott Peterson, who was convicted of slaying his pregnant wife and their unborn baby in 2002.
"The gravity of the crime, the status of the victim, the content of the publicity and the extent of the publicity exceeds anything this court has seen in the community other than the Peterson case," the judge wrote.
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