Prosecutor Wants To Move Ryan Frederick’s Trial

Tuesday, September 2nd, 2008

Over the last several months, I’ve noticed that the web comments to the Virginian-Pilot’s coverage of the Ryan Frederick case have gone from almost universal calls for Frederick’s head on a plate in the days following the raid to, lately, a healthy majority expressing skepticism toward the Chesapeake Police Department, and a pretty strong showing of support for Frederick.

It looks like Special Prosecutor Paul Ebert has noticed, too.

The special prosecutor in the case against Ryan Frederick, the Chesapeake man accused of killing a city detective, wants the murder trial moved out of the Hampton Roads area.

The commonwealth has urged the court for a change of venue from Chesapeake to a court elsewhere in the state. Frederick is to stand trial Jan. 20 in Chesapeake Circuit Court on charges of capital murder, use of a firearm in the commission of a felony and possession with the intent to distribute marijuana.

Paul Ebert, the commonwealth’s attorney from Prince William County appointed to the case, said the trial must be moved because pretrial publicity has made it impossible for the commonwealth to get a fair trial.

Frederick’s attorney, James Broccoletti, said he opposes any move, arguing that the citizens of Chesapeake have not only an obligation but a right to sit in judgment in a case of this magnitude.

Actually, what Ebert wants is a knee-jerk jury that will convict upon hearing “marijuana” and “shot a cop,” with no further deliberation.

Maybe the stellar legal minds who read this blog can help me out here: Is there even the slightest possibility that the judge could grant Ebert’s request? I was under the impression that a defendant always has the right to be tried in the jurisdiction where the alleged crime was committed. He can ask for a change of venue, but prosecutors generally can’t. Am I wrong?

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26 Responses to “Prosecutor Wants To Move Ryan Frederick’s Trial”

  1. #1 |  Thomas Blair | 

    Paul Ebert…said the trial must be moved because pretrial publicity has made it impossible for the commonwealth to get a fair trial.

    The Commonwealth isn’t owed a fair trial. Ryan Frederick is.

  2. #2 |  bobzbob | 

    Pretty shocking admission that it is in fact the Commonwealth that is on trial here!

  3. #3 |  Phelps | 

    Same reaction here. The deck is supposed to be stacked against the state.

  4. #4 |  SJE | 

    It will depend on VA law, about which I know nothing. I do note that, if the law was clear and in favor of the defense then Brocolletti would not have to make statements in the media.

  5. #5 |  Matt Moore | 

    IANAL, but from some Google searches it appears that prosecutors request venue changes very infrequently, and then only if the defendant is part of the legal establishment and could influence/intimidate the judge or the jurors. Obviously that doesn’t apply to Frederick.

    The title of this article is “Can the Commonwealth Obtain Change of Venue in Criminal Cases without the Consent of the Accused?” Unfortunately, I don’t have access to read the answer (which is 88 years old, so who knows if it still applies).

  6. #6 |  Whim | 

    Most frequently, pre-trial publicity leaked by the prosecution taints the jury pool against the defendant.

    On the other hand, in this case it appears that the community might already have some doubts about the state case.

    Hence, the state wants a move to a more favorable venue.

    It’s apparently a wrongful prosecution to begin with.

  7. #7 |  Ben | 

    In Virginia, both the Commonwealth and the accused have the right under the statute (Va. Code Ann. sec. 19.2-251) to request a change of venue. There is a presumption that the defendant can receive a fair trial in the county of the alleged offense.

    Although the statute clearly gives the state standing to make the motion, the issue the post raises is whether alleged unfairness to the state can justify the motion. Apparently, the rule of court on which the statute was based clearly provided that the only grounds was prejudice against the accused. In Newcomer v. Commonwealth, 220 Va. 64, 255 S.E.2d 485 (Va. 1979), however, the state Supreme Court ruled that the statute’s purpose “is to accord litigants, both the Commonwealth and the defendant, a fair and impartial trial.” (The Court in that case nevertheless reversed the venue change because of the skimpy case the state advanced for its motion.)

    I’m not a member of the Virginia bar, so consider this to be a lay reading of the caselaw and statute.

  8. #8 |  Pokerwolf | 

    According to Virginia law:

    “Except as otherwise provided by law, the prosecution of a criminal case shall be had in the county or city in which the offense was committed. Except as to motions for a change of venue, all other questions of venue must be raised before verdict in cases tried by a jury and before the finding of guilty in cases tried by the court without a jury.”

    There are other situations where that might change, though (check out the first link in the search for examples).

    From what I’m reading, either the defendant has to agree to move the trial, or the prosecution needs to make a ridiculously airtight request.

  9. #9 |  ktc2 | 

    LOL. This is drug war + dead cop related.

    Airtight case = “your honor PLEASE we won’t win here! They know too much!”

  10. #10 |  Tokin42 | 

    I’m going to take the prosecutors position as a good omen that Ryan will actually get a fair trial in his hometown and released soon thereafter. Here’s hoping for a massive civil judgment against the city and the police force to help pay for the time ryan has spent behind bars.

  11. #11 |  John Jenkins | 

    The state does and should have a right to a fair trial of the issues in a criminal case. You don’t have to travel far back in time to understand why, either. A prosecutor in the antebellum south prosecuting a white man for a black man’s murder might have sought a change of venue in the (probably vain) hope of a fair trial of the issues as opposed to an automatic acquittal.

    Just because the state’s request for a change of venue may not be justified here does not mean that a change of venue is never justified or that the state should be barred from seeking a change of venue.

  12. #12 |  Radley Balko | 

    A prosecutor in the antebellum south prosecuting a white man for a black man’s murder might have sought a change of venue….

    Both times!

    I kid. Sorta’.

  13. #13 |  Ben | 

    Although I agree that the state is entitled to a fair trial, I disagree that there is some sort of parity between the “parties” in a criminal case.

    The defendant is entitled to the presumption of innocence. A defense motion to change venue for adverse pretrial publicity essentially is an assertion that the presumption of innocence does not obtain in the jurisdiction.

    Conversely, the state is entitled to no presumptions in its favor. Even the fact that a grand jury has heard evidence and has voted that probable cause exists that the defendant committed a crime is entitled to no deference whatsoever, and in fact, should be presumed by the petit jury to have been a mistake.

    A state motion to protect its own “right” to an impartial venire (jury pool), therefore, is essentially just an argument that the citizens in the jurisdiction are likely to accord the defendant too great a presumption of innocence– essentially an unrebuttable one.

    I think it’s fine to argue that the “parties'” rights are equivalent, but the Constitution (whose Sixth Amendment also enshrines a right to venue) is a pretty clear refutation of that equivalence. That’s the problem both with the Virginia statute, and the Supreme Court’s interpretation of it.

  14. #14 |  Cynical In CA | 

    Change of venue for a black defendant in the antebellum South = that tree over there instead

  15. #15 |  SusanK | 

    Looks to me from reading the Virginia caselaw (not licensed there), it’s very hard to change venue unless both parties agree. Apparently, lots of pretrial publicity is not reason in and of itself to move the trial, so long as the publicity is true (in this case, the more recent accounts are factually accurate). The publicity has to be timed to harm the impartiality of the jury pool and must also be incendiary.
    Finally, it looks like the law there also requires the trial court to try to seat a jury before it can change venue. The Commonwealth has an uphill battle here.

  16. #16 |  David Chesler | 

    Amendment VI “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed”

    Has that been incorporated against the states? Had it been at the time of those Virginia cases cited?

  17. #17 |  Red Green | 

    Prosecutorial rethinking = desperate to remove defendant from proximity of intelligent peers. Nullify for intelligence sake.

  18. #18 |  John Jenkins | 

    There is no such thing as a presumption of innocence. The burden of proof in ANY case is borne by the plaintiff, a criminal trial is no exception. “Presumption of innocence” is just a shorthand way of describing on whom the burden lays in a criminal trial and, for anyone who has sat through one, is bad shorthand at that (trust me, at the start of the trial, everyone but the defendant and his lawyer probably thinks he’s guilty most of the time because “the police wouldn’t arrest someone who didn’t do anything.”)

    Motions for a change of venue in criminal trials are highly disfavored no matter who brings them. The only real reason for granting a motion for a change of venue is that something has so biased the jury pool that no jury drawn from that pool will be able to properly consider the evidence.

    The Sixth Amendment’s venue clause and Article III, § 2 do not apply to the states (in federal court the government may NOT make a motion for change of venue in criminal cases, see F.R.Cr.P. 21).

    There is no call for “equivalence” here. The call is for a fair trial before an impartial jury who will decide, based on the evidence presented, whether the prosecution has met its burden of proof.

    A jury pool that is decided against the prosecution before the trial begins is JUST AS BAD as the reverse, and that is something that has happened in Virginia in living memory (see my post above). We want unbiased jurors, period, and if changing the county in which someone is tried helps to achieve that, then that’s what we want.

    @red: I don’t believe the defense would want the jury to nullify here. The defense will run “self defense” based on Frederick’s reasonable belief that his life was in danger and his objective (reasonable) ignorance of the identity of the person whom he shot.

  19. #19 |  Ben | 

    While the US Supreme Court has not (yet) held that the Fourteenth Amendment incorporates the vicinage clause of the Sixth, the Virginia Constitution provides (Art. I, sec. 8):

    “That in criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, and to call for evidence in his favor, and he shall enjoy the right to a speedy and public trial, by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty. . . .”

    I don’t see anything remotely resembling an equivalent state constitutional “right” to an impartial jury.

    As for the presumption of innocence, tell that to the Supreme Court, which, as best as I can determined, has only upheld one refusal to give an instruction on the presumption of innocence (Yager v. Commonwealth, which it confined to its facts: “But this decision should not be taken as a signal that we have softened our adherence to the principle, ‘firmly engrafted in our jurisprudence’ and ‘a landmark of the law,’ Campbell v. Commonwealth, 162 Va. at 828, 174 S.E. at 861, that the accused in most every case is entitled to an instruction on presumption of innocence.”). See also Va. Prac. Jury Inst., sec. 100:21:

    “The defendant is presumed to be innocent of the offense with which he is charged and this presumption of innocence goes with him through the entire case, applies at every stage thereof and is sufficient to require you to find the defendant not guilty unless and until the Commonwealth upon whom the burden rests, proves his guilt beyond a reasonable doubt. It is not sufficient that facts and circumstances proved be consistent with the guilt of the defendant. They must be inconsistent with every reasonable hypothesis consistent with the innocence of the defendant.”

    Is this spelled out in the state or federal constitutions? Not precisely, but I think that most attorneys and judges would view it as clearly within the scope of due process.

  20. #20 |  Lloyd Flack | 

    Talking in terms of a presumption of innocence is very misleading at a trial. If the defendant was actually presumed to be innocent then he or she would not be on trial. The defendant is suspected and accused of breaking a law. The state has to prove its accusation is true. It is quite reasonable to talk in terms of the burden of proof being on the prosecution. No one should be asked to prove a negative. It is too difficult. And of course the consequences of a wrongful conviction are worse than those of a wrongful acquital.

    The real problem is that it is far too easy to put an innocent person on trial. Too many prosecutors do not appreciate the fact that if an innocent preson is put through the ordeal of a trial then a very grave wrong has been done to them even if they have been acquited.

  21. #21 |  pam | 

    yes, that’s what “beyond a reasonable doubt” means. If there are several reasonable hypothesis, a jury should test each and every hypothesis and if it doesn’t hold water, there is reasonable doubt; not just the strongest one presented by the prosecution. I’m not sure that is understood or even considered by juries today. Some states have such a high conviction rate, that it seems plausible that juries take the strongest hypothesis and if it holds water, guilty. A weaker hypethosis that doesn’t hold water is it seems shrugged off as week therefore doesn’t count. JMO

  22. #22 |  Shay | 

    The Commonwealth knows the trial will be fair if held in it’s own venue, but it’s not really a fair trial that they want, it’s not the truth that they want…..it’s a conviction that they want. They will find it difficult to smear Ryan Frederick’s reputation in the town where people know he is not a criminal. Another venue might give them more chances to paint him as a drug user and a cold blooded killer. It’s sickening. These cops know exactly where the blame lies for this terrible tragedy, they know exactly who took the bogus tip from the informant and did not investigate the crediblilty of that tip, and they know exactly that they have an innocent young man in prison. A young man who would have NEVER pointed a gun at a police officer. A young man who broke down in tears when he realized what had happened.And these officers and the DA know that it was the police themselves who created the disaster that occurred that night. THEY HAD NO BUSINESS BEING IN RYAN FREDERICK’S HOME THAT NIGHT!

  23. #23 |  omar | 

    Wasn’t moving trials what partially lead to the Colonies splitting from England? Boston Massacre -> a jury of New England men judge the English soldiers-> a jury of New England men acquitting those soldiers-> King George declaring that English soldiers accused of crimes would be tried in England

    Something (mostly) written by the fella who wrote a lot of the Virginia constitution…

    “For protecting them [English soldiers], by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States.”

    The complaint was that the American juries couldn’t sit in judgment of foreigners for crimes committed in America. Can you imagine what Jefferson would have written if King George was importing Americans to Europe to stand trial?

  24. #24 |  omar | 

    I need to correct myself. My history knowledge is shallow. It’s late, and there are just too many offenses of King George. Jefferson said the English did this exactly.

    “For transporting us beyond Seas to be tried for pretended offenses”

    Beyond the Seas, beyond the local jurisdiction. Duck typing applies here.

  25. #25 |  Geoff | 

    What, if anything, does Virginia law have to say about affirmative defences, such as self-defence, or ‘castle laws’?

    Since it appears that the conditions for an affirmative defence may exist, (plus or minus the factual question of whether the bad guys (the ones with the badges) ‘announced’ themselves).

    And what, if anything, has been discovered, recently, concerning the possible bullet hole inside the house, which could have been made by a shot fired from outside the house…maybe by a .223 calibre rifle which then ejected the .223 brass found on the front lawn….?

  26. #26 |  Don Tabor | 

    Radley,

    I made it to the pretrial hearing yesterday and have posted a brief summary at tidewaterliberty.com

    It get more bizarre every week.

    Don

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