Judge is asked to deny bid for venue change in Cedar fire trial

Judge is asked to deny bid for venue change in Cedar fire trial

7January 2005

publishedby www.signonsandiego.com 

Prosecutors are asking a federal judge to reject defense efforts to move from San Diego the trial of the lost hunter accused of starting the Cedar fire.

Sergio Martinez’s lawyers have asked for a change of venue, arguing that “hostility, hatred and ill will” stirred up by media coverage make a fair trial impossible in San Diego.

The U.S. Attorney’s Office contend in court papers made public this week that it’s not necessary to move the trial because although almost everyone in San Diego is aware of the fire, few are prejudiced against the West Covina man.

“The publicity in this district, while extensive when it comes to the Cedar fire itself, has barely addressed the culpability of Martinez,” prosecutors said, citing a review of 871 articles about the fire in The San Diego Union-Tribune. Of those, 31 mention Martinez.

“The reporting has been largely factual in nature, has not involved a call for a conviction and has not involved the disclosure of inadmissible evidence,” prosecutors Michael Lasater and Kevin Mulcahy wrote.

A hearing on the defense request is scheduled for next Friday.

Prosecutors said they expect to go to trial within four months and further delay is unnecessary.

Martinez, 34, is accused of setting the Cedar fire Oct. 25, 2003. Prosecutors said he was lost in the Cleveland National Forest near Pine Hills while hunting deer and hoped the smoke from his fire would lead to his rescue.

Martinez has pleaded not guilty, and his lawyers said in court papers that his mental condition at the time may explain his actions.

Sheriff’s deputies who rescued Martinez by helicopter said he was disoriented and dehydrated when they pulled him out of the forest. They said he apologized as he looked at the quickly spreading blaze, which eventually charred 422 square miles, killed 15 people and destroyed more than 2,200 homes. It became the largest wildfire in state history.

In court papers, defense lawyer Wayne P. Higgins of Los Angeles said saturation media coverage of the fire and Martinez make his job untenable.

“Jurors will be unable to separate their own personal feelings of hatred and antagonism toward the defendant from their judgments of the facts,” he wrote.

Motions to move trials usually fail, legal experts said, because lawyers have to persuade a judge it’s impossible to find jurors who can be fair.

“There has to be high animosity toward the defendant,” said James Brosnahan, a San Francisco defense lawyer, noting that the most recent such case was that of Scott Peterson, the Modesto fertilizer salesman who was convicted of murdering his pregnant wife and unborn son and now faces the death penalty in a trial moved from Modesto County to San Mateo County.

Two years ago, Brosnahan failed to win such a motion for John Walker Lindh, the American captured with Taliban forces in Afghanistan who was facing life in prison if convicted in federal court in Alexandria, Va.

“There was enormous local animosity toward terrorism,” Brosnahan said of the post-9/11 attitudes in Northern Virginia. “Our courthouse was nine miles from the Pentagon. . . . More people died in the Pentagon that day than in the Oklahoma City bombing.”

Lindh wound up pleading guilty to providing services to the Taliban and carrying explosives during a felony in July 2002 and was later sentenced to 20 years in prison.

But Martinez’s case may be more akin to the cases of Timothy McVeigh and Terry Nichols, the Oklahoma City bombers whose federal cases were moved to Denver, Brosnahan said. Both were convicted. McVeigh was executed in 2001, and Nichols was sentenced to life in prison.

“That’s a little closer to your case, a catastrophe that has left so many people in mourning and bereaved,” Brosnahan said.

Martinez’s case is different, however, in that prosecutors do not claim that he set out to kill people but that he acted unreasonably when he set a signal fire, which got out of control.

In court papers, prosecutors also told U.S. District Judge Roger T. Benitez that he can delay a decision until it’s shown to be impossible to find a fair jury during questioning.

Defense lawyer Brad Patton did just that in the trial of Richard Tuite, a mentally disturbed drifter who was convicted of manslaughter in the high-profile slaying of Stephanie Crowe, a 12-year-old Escondido girl.

Jury questionnaires ferreted out biased jurors. In the end, Patton didn’t ask for a change of venue.

The best way to gauge public opinion is through a survey, said defense lawyer John Cotsirilos, who persuaded judges in the 1980s to move two cases out of the county.

In one of those cases, three-quarters of people polled not only knew his client’s name but had already decided he was guilty.

“I don’t think you really get honest answers in a courtroom on these questions,” he said.

Once before a judge, he said, people have a tough time admitting they can’t be fair.


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