Saturday, August 25, 2012

What if Andrea Sneiderman Seeks A Change of Venue?

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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