By ESTHER PANITCH, Channel 2 Legal Analyst
COBB COUNTY, Ga. - I've been asked many questions since Judge Mary Staley granted the defense motion to change venue in the Ross Harris trial.
Frankly, I was surprised it was granted.
Upon further reflection, it was the correct move.
Here are some answers to questions I have been asked over the last few days:
I thought more than 40 jurors had been qualified and jury selection was almost completed. What happened?
Judge Staley refused to strike many jurors for cause whom the defense asked to be struck.
The law holds that jurors who cannot be impartial cannot serve.
Even after jurors agreed that they would listen to the instructions and law given by the judge and the evidence presented in the courtroom, some jurors insisted that they would require the defense to disprove their belief in Harris' guilt, which is unlawful.
The defense has no burden to prove anything.
In the Harris case, as just about every other criminal case, the burden belongs entirely to the state to prove guilt beyond a reasonable doubt.
The defendant is always presumed innocent until proven guilty and never the other way around.
Why didn’t the judge change the venue soon after jury selection started?
The defense is the only side that can file a motion to change venue and it has the burden of proving overwhelming pretrial publicity.
The only time a judge could move the venue on her own without a defense motion is if there are threats of violence against the defendant.
Why didn’t the defense file a motion to change venue earlier?
The only practical way to prove the effect of pretrial publicity is to question the jurors. Voir dire means “to see to speak.”
The jurors are questioned, in this case individually, to try to expose bias.
In the Harris case, a questionnaire was completed by potential jurors in advance of the questioning.
Although not made public, the questionnaire results would have given the defense, the state and the court the ability to see what was coming and the defense could have filed then, or waited until the first group came back as opinionated as they did.
Even though the defense might have had good-faith legal grounds to file a motion to change venue, in practice it’s an enormous burden for everyone involved in the case, including the defense lawyers.
All the attorneys, witnesses and courtroom staff need to literally relocate for the length of the trial.
It appears that the defense held out as long as it could to see if enough impartial jurors would be found to make up the final petit jury, which is mandated by the 6th Amendment.
And when the defense ultimately filed its motion on April 29, after three weeks of jury selection, Judge Staley could not ignore the fact that over 50 percent of Harris jurors questioned were dismissed because they claimed they could not be impartial.
While the defense prevailed when Judge Staley granted its motion, it may be a pyrrhic victory, because no one appears to be pleased.
Ultimately, I believe that the cumulative effect of the jurors' strong opinions, combined with the cold numbers, convinced the judge that it would be less expensive to the residents of Cobb County to move the trial (even 3 weeks in) than to give the defense an opportunity to have the Supreme Court send the case back to try a second time, if Harris is convicted.
The judge did the right thing and did it at the first real opportunity she had.
The real question will be if an impartial jury can be found at the new venue.
Georgia statutes provide that subsequent transfers are possible, because the Constitution demands an impartial jury.