A motion for a change of venue in the capital murder?case against Justin?Thurber of Arkansas City was filed March 21 in Cowley County District Court by the state’s Death Penalty Defense Unit.
The defense team has also requested a delay to the start of the jury trial which is set to begin June 24 in Winfield. Arguments on the motions will be heard at 10:30 a.m. April 23.
Thurber faces the death penalty for the brutal murder in January 2007 of 19-year-old Jodi Sanderholm, an Ark City resident and Cowley College student.
Defense attorney Tim Frieden’s eight-page change of venue motion argues that prejudicial pretrial publicity has “given rise” to a negative view of Thurber.
“News of the incident that form the basis of this charge has filtered down from the newsrooms to the television stations and newspapers of the community and finally to the dinner tables,” Frieden states.
“The residents of this county have been exposed to a great deal of publicity concerning this case. Television outlets have provided coverage of this matter,” he continues. “The local newspaper has covered every major, minor and inconsequential event remotely related to the case.”
The publicity, coupled with the day-to-day conversations of area Cowley County residents, has altered the community’s view of Thurber to the point that he cannot receive a fair trial, Frieden states.
“Where negative publicity permeates a community, prejudice is presumed,” he wrote.
Because there is a reasonable likelihood that community prejudice will prevent a fair trial, Frieden claims the location of the trial must be changed. He cites a previous ruling by the Supreme Court in his motion:
“Due process requries that the accused receive a fair trial by an impartial jury free from outside influences. Where there is a reasonable likelihood that the prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer to another county not so permeated with publicity.”
The American Bar Association applicable standard provides that a motion for change of venue or continuance should be granted whenever it is determined that, because of the dissemination of potentially prejudicial material, there is a reasonable likelihood that, in the absence of such relief, a fair trial by an impartial jury cannot be had.
“This determination may be based on such evidence as qualified public opinion surveys or opinion testimony offered by individuals, or on the court’s own evaluation of the nature, frequency, and timing of the material involved. A showing of actual prejudice shall not be required,” the ABA standards state.
Frieden argues that the effect of the pretrial publicity in the case will not vanish. He expects the filing of the motion to move the trial out of Cowley County to create even more coverage within the local press.
“Given the strong community feelings of this case and the contentious reporting of the details of the case, there is reasonable likelihood that Mr. Thurber cannot obtain a fair trial in Cowley County,” the motion states.
The likelihood of assembling an impartial jury in Cowley County is very low. If venue is changed… logistical issues as transportation, lodging and locating court facilities will arise, causing more expense and delay, Frieden argues. If venue is not changed, the jury may have to be sequestered.
In conclusion, Frieden argues that Thurber has been the subject of negative publicity regarding the case. The details of the case “have been widely reported repeatedly,” he writes. The prejudicial nature of pretrial publicity and extensive coverage of this case are such that a presumption of partiality may be found.
“The nature and strength of the opinion formed are such as in law necessarily… raise the presumption of partiality. The defendant’s right to a trial before an impartial jury, as guaranteed … by law, will be violated unless venue is changed,” he concluded.
Another, separate group of motions will be heard April 8 and 9.
“We’ll be basically looking at preliminary rules in the admissibility of evidence,” Cowley County Attorney Chris Smith said. “The defense has some motions they want to address as well.”?
