What if Andrea
Sneiderman Seeks a Change of Venue?
Venue is typically thought of as the
geographic location of a legal proceeding, and most important in this case, the
location from where the jury pool will be picked. Currently, venue for the Andrea Sneiderman
murder case is in DeKalb County, Georgia.
This is the County in which the alleged crimes occurred.
Andrea Sneiderman's lawyers have hinted
they will file a motion with the Court asking for a change in venue. Given the historically low chance of obtaining
a change in venue, Andrea Sneiderman may put her attorney’s resources to better
use. However, should she move to change
venue, this purpose of this article is to look at what that motion really means
and try to provide an educated guess as to the likely outcome.
In this case, the focus of a change of
venue motion will be the pretrial publicity given to this case and whether
because of such publicity it is possible to have an impartial jury.
But, before we reach that primary issue,
regardless of whether venue is moved from DeKalb County to a different county,
Judge Adams is likely to remain the presiding judge (unless he is disqualified
– an unlikely event). Georgia's Uniform Superior Court Rule 19.2 provides that:
When a criminal action is to be
transferred to the superior court of a county different from that in which
initially brought, the superior court judge granting the venue
change, unless disqualified, shall continue as
presiding judge in the action.
The main issue for the Judge to determine
in considering a change in venue is whether an impartial jury may be
obtained. This does not mean that a
potential jury must possess absolutely no knowledge about the case, but rather
that the juror must be impartial
– in other words, the potential juror must not have already been swayed as to
Andrea Sneiderman’s alleged guilt as a result of the pretrial publicity. For you reading this article, you are
probably very familiar with this case, and you have may have formed an opinion
to some degree regarding the merits of this case and/or Andrea Sneiderman’s
guilt. While I would admonish you to try
to remain impartial until the evidence is presented at trial, you should also
recognize that there are people somewhere, and perhaps in DeKalb County that
have no knowledge about this case.
As to a Motion for Change of Venue, the
proper place to start is the rules the Court will apply in making its
decision. Georgia statute § 17-7-150
provides, in pertinent part:
(a)(1) The defendant ... may move in writing for a change of venue, whenever ...
an impartial jury cannot be obtained in the county where the crime is alleged
to have been committed. Upon the hearing of the motion it shall not be
necessary to examine all persons in the county liable to serve on juries, but
the judge shall hear evidence … in support of or against the motion. If … the
judge is satisfied that an impartial jury cannot be obtained ... the judge
shall grant a change in venue; the judge shall transfer the case to any county
that may be agreed upon by the prosecuting attorney and the defendant or the
defense counsel... [or a County selected by the Judge].
The same statute also provides that although the jury
pool may come from a transfer county, the trial may still take place in the original
county. O.C.G.A. § 17-7-150(a)(3). That’s right, even if the Judge grants a
change of venue, not only can Judge Adams still preside over the case, with the
same prosecutors, he may choose to do so in his courtroom in DeKalb
County. Historically, trials may have
been physically transferred to a distant county when there was a fear that a
defendant may be lynched or was otherwise in physical danger. Thankfully, we have progressed beyond those
barbaric practices, and maybe one day the internet lynch mobs will subside and
the presumption of innocence to which we are all entitled will prevail.
So,
how does a Court decide whether to transfer venue in a criminal case?
According to a Georgia Supreme Court case,
“a capital defendant seeking a change of venue must show that the trial setting
[is] inherently prejudicial as a result of pretrial publicity or show actual
bias on the part of the individual jurors.”
Gissendaner v. State, 272 Ga. 704, 706 (2000). Furthermore, “[t]he decisive factor in determining
whether a change of venue is required is ‘the effect of the publicity on the
ability of prospective jurors to be objective.'” Id.
“A change of venue is required when a defendant can make a substantive
showing of the likelihood of prejudice by reason of extensive publicity.” Id.
The background facts from the Gissendaner
case are interesting as well as instructive. Gissendaner, is factually
similar to the Andrea Sneiderman case. Defendant, Kelly Renee Gissendaner was
not originally suspected to have any involvement in the murder of her
husband. Gregory Peter Owen, with whom
Gissendaner was involved in a relationship however, plead guilty and received a
life sentence. Gissendaner was convicted
in Gwinnett County, Georgia (part of the Metro-Atlanta area) and received the
death penalty. Here is the Georgia
Supreme Court's summary of Owen's testimony at Gissendaner's trial:
it was [Gissendaner] who first raised the idea of murder
and that she later raised the idea again several other times. Owen suggested
divorce as an alternative, but Gissendaner insisted upon murder because she
believed she would receive insurance money from her husband's death and because
she believed he 'wouldn't leave [her] alone by just divorcing him.' Gissendaner
had previously stated to Owen's sister that she intended to use the victim's
credit to get a house and then 'get rid of him.'
In addition, “After the murder,
Gissendaner concealed her relationship with Owen from police and claimed not to
have initiated contact with him for some time. Telephone records, Owen's
testimony, and other witness testimony proved otherwise.” Gissendaner v.
State, 272 Ga. 704, 705 (2000).
Okay – back to the venue
issue. In Gissendaner, the Court
waited until voir dire – the individual jury selection process – to decide the
venue issue and ultimately did not transfer venue. The Court examined the pretrial publicity
that may have been damaging to Gissendaner's defense, particularly a statement
of admission that was later suppressed at trial. The Court also reviewed newspaper and
television coverage and concluded that it was neither “so extensive and
inflammatory nor so reflective of 'an atmosphere of hostility' as to require a
change of venue.” Id.
The trial Court excused 13 of
111 jurors in the jury pool based on their exposure to pretrial publicity. Jurors with some exposure to pretrial
publicity but with limited and vague memories of their exposure were properly
permitted to serve on the jury. “A
prospective juror need not be 'totally ignorant of the facts and issues
involved' in a criminal proceeding in order to be qualified to serve.” Gissendaner v. State. at 707. In short, the jurors permitted to serve on
the jury had no recollection of the substance of the pretrial publicity that created
prejudice against the defendant.
So what does all this mean for
Andrea Sneiderman? It means that her
attorneys must first find and introduce the pretrial publicity that they
content prejudices potential jurors.
They must then present the evidence to the Judge at a hearing on the
motion to transfer venue. The Judge may
then decide to deny the motion, grant the motion, or withhold ruling pending
voir dire of the jurors at trial. It
also means that Judge Adams may decide to pool 300 potential jurors, like the
Hemy Neuman trial, and find 12 plus alternates that have no knowledge of this
case.
Unlike Gissendaner,
Sneiderman has maintained her innocence as to all charges to date. The inculpatory statements made by Andrea
Sneiderman occurred during the trial of Hemy Neuman. Nevertheless, there has been extensive media
coverage of this case, perhaps far more extensive than the Gissendaner case. The Neuman trial was streamed live on the
internet, broadcast on cable, and has recently been replayed on TruTV and in
clips on the internet.
Andrea Sneiderman's attorneys
have said that you would have to live under a rock to not have any knowledge of this case – and they may be
right. To that claim, the DA will likely
argue (1) the proper test is whether a juror is prejudiced and lacks impartiality,
not whether they have a complete absence of knowledge about the case, and (2)
there are people in DeKalb county that have no knowledge of this case, we will
find them during jury voir dire, i.e. we will look under the proverbial rock.
As a fun exercise, during the
last meeting of the #DMTDC at the Firkin & Gryphon in Dunwoody, about 1 mile
from the site of Rusty's murder, I asked a few random people if they recognized
Andrea's photo, her name, or were familiar with the Dunwoody daycare
murder. Not one person recognized
Andrea's photo or name, and only one person had heard of the case, but had no
concrete recollection of what it was about.
Likewise, I work with attorneys, one of which lives in DeKalb County,
who have no knowledge about this case. While
my sample size isn’t large enough to be statistically relevant, it is
indicative of the possibility that Andrea Sneiderman can obtain an impartial
jury in DeKalb County.
While I am not immune to being
incorrect, it is my opinion that the likely outcome of a change of venue motion
is denial. At best, Andrea could expect
a different jury pool, but Judge Adams is likely to keep this case in his Court
in DeKalb County.
David Weinberg practices law with Winter Capriola Zenner,
LLC in Buckhead. He grew up in
Dunwoody and lives in the Atlanta area.
He litigates business and real estate disputes, and comments on high
profile civil and criminal cases in the Atlanta Area. He regularly tweets and welcomes your
comments and questions.
For inquiries or more information:
(404) 844-5700
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