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This article appeared originally on dallasnews.com and was written by Jennifer Emily
Amber Guyger’s murder trial is set for September, a year after she shot Botham Jean to death in his Dallas apartment.
But will the jury deciding the former police officer’s fate be seated in Dallas or some other Texas county?
State District Judge Tammy Kemp issued a gag order to stop the attorneys in the case from speaking about it outside the courtroom.
But news coverage has persisted ever since Guyger shot Jean on Sept. 6. Guyger, who was off-duty but still in uniform, said she confused his apartment for her own and thought he was a burglar.
As the trial approaches, Dallas attorneys say, the defense will likely file a motion asking the judge for a change of venue, saying Guyger can’t have a fair trial in Dallas. It’s not about whether potential jurors have heard details of the case. It’s whether they already have an opinion about her guilt or innocence.
There’s been no shortage of news this year to sway potential jurors one way or the other:
- Guyger’s 911 call after shooting 26-year-old Jean was made public within the last few weeks.
- Cases that Guyger filed before the shooting were dismissed because the Dallas County district attorney’s office won’t sponsor her as a witness.
- The news media cover her court appearances, even with a gag order in place obscuring what happens behind closed doors.
Dallas attorneys unaffiliated with the case are divided about whether a Dallas jury can be fair and impartial about the shooting at the South Side Flats apartments. To take a look at how Kemp might decide, The Dallas Morning News spoke with a prosecutor, a defense attorney and a judge in North Texas cases in which changes of venue were granted.
One of those cases involved the murders of Kaufman County District Attorney Mike McLelland, his wife, Cynthia, and top prosecutor Mark Hasse. Hasse was slain in a Kaufman County courthouse parking lot in January 2013, and the McLellands were gunned down in their home over Easter weekend that same year.
Had their killer, Eric Williams, been tried where the crimes occurred in Kaufman County, jurors could have parked where Hasse was killed as they went to court each day. And the trial would have taken place in the same building where Mike McLelland and Hasse worked and where Cynthia McLelland brought the staff cookies.
Those facts, as well as the intense publicity as law enforcement hunted the once-unknown killers for months and media coverage afterward, led then-state District Judge Mike Snipes to move the case to neighboring Rockwall County, with the assent of prosecutors.
The jury sent Williams to death row and his wife, Kim, pleaded guilty to murder in exchange for 40 years in prison. She cooperated with prosecutors and testified at her husband’s trial, giving bone-chilling testimony about the murders.
Defense attorney Matthew Seymour, who represented Eric Williams, said he doubts Guyger’s attorneys can meet the high bar needed to move the trial to another county. He noted that Dallas County is much bigger than Kaufman and that an impartial jury can be found here.
Seymour said even he doesn’t know much about the case, although he’s at the criminal courthouse every day as a Dallas County public defender.
“If you ask me where he was shot, I can’t tell you,” said Seymour. “I believe it was in Dallas. But I can’t tell you where.”
Dallas attorney Tom D’Amore disagrees, saying Guyger’s case should probably relocate.
Now a defense attorney, D’Amore once prosecuted one of the “Texas 7” prison escapees who killed Irving police Officer Aubrey Hawkins on Christmas Eve 2000. Michael Rodriguez, who has since been executed, is the only one of the escapees whose trial was moved. He was tried in East Texas.
“With all the coverage it’s received so far, I have my doubts of whether she can get a fair trial in Dallas,” D’Amore said. “In all my 31 years of practicing law, it’s the top two or three” of how much media coverage the Guyger case has received. “If you read about something enough times, you’re going to make up your mind. That’s human nature.”
D’Amore said he’s never seen so many journalists show up for court dates when nothing is expected to happen and the intention is just for the prosecutors and defense attorneys to talk.
“A fair and impartial jury is much more available in a different venue,” he said.
What does Botham Jean’s family want?
Whether a Dallas jury can be fair and impartial is really about Guyger’s rights as a defendant.
But attorney Lee Merritt, who represents Jean’s family in a lawsuit against Guyger and the city of Dallas, said Jean’s family hopes the case remains in Dallas.
Merritt said the family fears that moving the trial out of Dallas will raise the bar needed for jurors to convict. Dallas County residents are more likely to have concerns about the training of the city’s police force than those who live in another county.
“We know Dallas County is one of the more liberal areas of Texas,” Merritt said. “Dallas County is more likely to convict Amber Guyger. Cases are meant to be tried in the community where they occurred.”
What are other ways to ensure a fair trial besides a change of venue?
The first step isn’t to move the trial to another county.
One of the first steps is a gag order, which Kemp put in place at Guyger’s first court date. The order prevents attorneys from both sides from commenting on the case to the media.
During trials with media coverage, judges repeatedly warn juries not to read, listen to or watch any news about the case. Judges also tell jurors not to do any independent research.
Jurors fill out questionnaires about their backgrounds and opinions in some cases.
Attorneys could also individually question jurors like they do in death penalty cases.
The process of picking a jury can take months if jurors are questioned individually. Guyger does not face the death penalty because she is charged with murder, not capital murder. But attorneys could still follow the same jury selection process.
These precautions mean it’s rarely necessary to move a trial, said Snipes, the former judge. And judges could always move a trial later if finding a jury in Dallas County proves impossible.
“You could always try to see if you could do it,” said Snipes.
A judge could request more potential jurors than usual. Snipes said a judge could try to seat 12 jurors plus alternate jurors to determine if there are enough impartial ones.
If too many jurors have formed an opinion, then a judge could consider moving the case.
What kinds of cases are usually moved to another county?
There aren’t a large number of cases that get moved in Dallas. Anecdotally, trials are moved out of the county more often when prosecutors seek the death penalty. But even the vast majority of death penalty cases remain in Dallas County.
The Office of Court Administration, which collects statistics on Texas courts, doesn’t track changes of venue in criminal courts.
In Dallas County, in addition to the Texas 7 trial, a change of venue was granted in the case of Darlie Routier, who killed her two young sons in Rowlett in 1996. Her trial was moved to Kerr County, northwest of San Antonio. The jury sent her to death row, where she remains.
Seymour, the defense attorney in the Williams case, said a judge is more likely to grant a change of venue when the defendant faces the death penalty.
“Death is different,” he said. “Death changes everything.”
Coincidentally, one of Guyger’s attorneys was a prosecutor in all three cases. Once a top prosecutor in the Dallas County DA’s office, Toby Shook prosecuted Routier and the prison escapees who killed Hawkins, and also was a special prosecutor in the Kaufman case. Mike McLelland asked Shook and Bill Wirskye, now the first assistant DA in Collin County, to prosecute the cases before McLelland and his wife were murdered.
Where could the judge move Guyger’s trial?
The case must remain in Texas but could move to another county. The trial couldn’t be in another state or in St. Lucia, where Jean is from and hoped to one day return and run for prime minister.
If Kemp moves the trial, she and the attorneys remain with the case. A judge and prosecutors from the other county don’t take over.
Has an appellate court ever overturned a Dallas County jury’s verdict because a case wasn’t moved?
Snipes, the judge, said he can only think of one case: Jack Ruby’s trial for killing Lee Harvey Oswald in 1963. Ruby walked down the ramp of the Dallas Police Department’s parking garage and shot Oswald days after Oswald assassinated President John F. Kennedy. Cameras captured Ruby shooting Oswald as police were about to transfer him to jail.
Ruby was convicted of the now-nonexistent charge of “murder with malice” and sentenced to death.
Texas’ highest criminal court, the Court of Criminal Appeals, found that Jacob Rubenstein — Ruby’s real name — was denied a fair trial, in part because the trial remained in Dallas.
Ruby died of cancer before he could be tried again.