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(DALLASNEWS.COM) — Dallas County prosecutors filed a two-page motion Wednesday objecting to fired Dallas police officer Amber Guyger’s defense attorneys’ request to move her murder trial to another county.
The filing was in response to a motion filed Monday by defense attorneys arguing that the publicity was so pervasive and inflammatory that Guyger could not receive a fair trial in Dallas for shooting Botham Jean in his own apartment in September.
Guyger, 30, was off-duty but still in uniform when she shot Jean, a 26-year-old accountant. She told law enforcement that she mistakenly thought Jean’s apartment at South Side Flats was hers and he was a burglar. She lived one floor above him.
“To justify a change of venue based upon media attention, which is what the defendant requests, the defendant must show that publicity was pervasive, prejudicial and inflammatory,” Dallas prosecutor Douglas Gladden wrote.
Guyger’s attorneys requested that the trial be moved to Collin, Grayson, Kaufman, Ellis, Rockwall or Fannin County. The prosecution’s motion did not address the suggestions by the defense.
The two most common ways to determine if that’s the case are a hearing about change of venue and the jury selection process. Prosecutors suggest state District Judge Tammy Kemp hold a hearing consider the publicity, evidence submitted at such a hearing and what potential jurors say during jury selection.
The motion asks that Kemp hold the hearing but not rule on change of venue until after jury selection. Jury selection is set to begin Sept. 6 — the anniversary of Jean’s death — when potential jurors fill out questionnaires about serving on a jury. Jurors who qualify will then be questioned at another time.
Whether potential jurors are qualified to sit on the jury isn’t about whether they’ve heard about the shooting or even whether they know Jean or Guyger’s name. To serve, jurors can’t have an opinion about Guyger’s guilt or innocence.
The trial is slated for Sept. 23.
Prosecutors submitted affidavits from Dallas County residents who said Guyger could receive a fair trial in Dallas just and defense attorneys filed ones that said she could not.
No date for a hearing has been set.
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 the county.
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.
The Office of Court Administration, which collects statistics on Texas courts, doesn’t track changes of venue in criminal courts.
Area attorneys could recall only two changes of venue granted for Dallas County cases in a little more than 20 years. Darlie Routier 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.
The trial of one of the Texas 7 prison escapees, Michael Rodriguez, who killed Irving Officer Aubrey Hawkins on Christmas Eve 2000, was moved to East Texas. Rodriguez was executed.
If Kemp moves Guyger’s trial, she and the attorneys remain with the case. A judge and prosecutors from the other county don’t take over.
Only one Dallas case, courthouse observers say, resulted in a new trial because the judge didn’t move the case to another county: 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.
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.