Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Boston criminal defense lawyer seeks to move high- profile case out of Suffolk County

By now, you have probably heard of the gentleman who has allegedly chosen the name “Clark Rockefeller”. The Commonwealth says his real name, or part of it, is Christian K.G. We, however, will simply call him the “Defendant”.

He is facing charges in Boston for parental kidnapping. However, his attorney is arguing that it is too prejudicial to have the trial in the city and that the matter should be moved to western Massachusetts.

The reason?

The defense argues that, because of the extensive media coverage, the potential jury pool has been tainted to the extent that it is impossible for the Defendant to receive a fair trial.

The argument is based on a survey done for the defense which found that more than three-quarters of respondents in Suffolk County – where potential jurors would be culled – said they were aware of the case. Of those, roughly half said they believed he was guilty.

“That’s a staggeringly high figure, even for a high-profile case,” said the Defendant’s attorney.

The prosecutor, however, not to be outdone in his mathematical abilities, countered that the same poll found 52 percent of county residents had not formed an opinion.

The matter is before Judge Gaziano who, after hearing oral arguments on the matter has not yet indicated when he would rule on the issue.

The Defendant is charged with the kidnapping of his 7-year-old daughter during a supervised visit in July which sparked a search from Long Island marinas to Caribbean islands. Six days later, the Defendant and his daughter were found in Baltimore.

…And that is when the Defendant’s legal troubles began.

After his arrest, authorities say they discovered that the name he had been using was not his real identity. They indicate he is actually a German national who has used various aliases since moving to the United States in the 1970s. He is also is a “person of interest” in the homicide investigation regarding the 1980s disappearance of a couple from whom he rented a guesthouse in San Marino, a wealthy Los Angeles suburb.

The Defendant’s lawyer says that more than a third of those polled in Suffolk County knew the Defendant was connected to the case in California.

“I think it’s a very big factor in why he can’t get a fair trial in Suffolk County,” he argues.

The Commonwealth agrees that the Defendant’s story has received extensive national and international attention, but points out that simply being exposed to news reports does not automatically taint a juror.

“There’s nothing in screening a juror that says if you have been exposed to media coverage that you can’t serve,” argues the prosecutor.

The Commonwealth submits that moving to Springfield would not provide greater protection of the Defendant’s rights, calculating that the pool of potential jurors would need to include only about 20 more people in Boston than in the western Massachusetts city to seat a suitable jury. Further, the prosecutor argues, the Defendant has “courted publicity”, giving extensive newspaper and television interviews after his arrest.

The response from the defense?

The defense attorney argues that you can’t hold the media coverage against his client because the Defendant was incapable of choosing what was best for his defense.
“It [the media interviews] has not helped the situation,” the lawyer said. “But again, we’re claiming he’s insane.”

Yes, the defense is planning to use an insanity defense at trial.

The trial is scheduled to take place on May 26th. However, if the motion for change of venue is denied, then the defense is likely to ask for a delay of the trial.

Attorney Sam’s Take:

Changing the location of a trial is known as a change of “venue”. This is the motion now pending before the court in this case.

Publicity has become a big factor in the criminal justice system, particularly over the past 25 or so years. I have seen it effect criminal matters when I was a prosecutor in Brooklyn as well as a defense attorney in Boston.

You have heard (or read) me argue many times in this daily blog that publicity, or threat of it, can affect the actions of the police, prosecutor and judge. Basically, there has become a fear that, if a criminal matter is not dealt with severely enough, then the press will lead public opinion in an attack on whoever is deemed the “bleeding heart” responsible. Heaven forbid if the defendant involved goes out and commits another crime. In such a situation, the decision maker is blamed for not being able to foretell the future or erring on the side of a person’s freedom.

What this means is, because of the threat of the publicity, if you are charged with a crime, particularly a violent one, you run the very real risk of being treated more harshly because of the threat of public outcry. It has been a long time since there has been a public outcry against an action deemed “too tough on crime”. For the opposite, you simply need to remember Judge Lopez, who was basically chased off the bench for, among other things, being “too soft on crime”.

The media’s effect can also be felt by a potential jury. We are all influenced, to some degree, by the news we receive. Sometimes that news is 100% reliable…sometimes it is not. A jury is supposed to be able to make a fair decision, in accordance with the law, based on the evidence elicited in the courtroom. However, the entire reason behind jury selection is to exclude potential jurors who cannot be fair and impartial because, among other reasons, they have been influenced by the press as to the defendant’s guilt or innocence.

Therefore, the threat to the Defendant from the pre-trial publicity is very real. On the other hand, the media coverage was not limited to Suffolk County. This fact may well play into the court’s decision on the matter.

Should the Defendant lose the motion and is subsequently convicted, the denial of the motion would likely be a subject raised in appeal. The argument would be that the Defendant was wrongfully convicted because he was denied his right to a fair trial.

The full article of this story can be found at: http://www.bostonherald.com/news/regional/view.bg?articleid=1167330

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