Beltway Back and Forth: The Loughner Venue Change Saga

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I got dizzy Monday following the back-and-forth in the story of a potential venue change for the federal murder trial of Jared Lee Loughner, the Tucson shooting suspect charged in the January 8th massacre that killed Chief U.S. District Judge John M. Roll and five others and wounded Rep. Gabrielle Giffords and a dozen more.

The Washington Post's Jerry Markon here, with a story that has changed versions several times over the past 24 hours, and Politico's Josh Gerstein here, with a story that seemed to misunderstand the gist of Markon's piece even as as it sought to shoot it down, have caused some confusion (and consternation) in media circles over what is likely ahead in United States v. Loughner. I won't go into the details of the back-and-forth between the two fine news organizations or the work of two good reporters, both of whom I respect. It's inside baseball and none of my business (except that I had to answer questions about the two stories all morning).  But here is what you need to know:

  • Only federal judges can change the venue of a trial from one state to another. Federal prosecutors do not have that power and never have.
  • Any decision to move the Loughner case out of Arizona will be made by U.S. District Judge Larry A. Burns, a San Diego-based jurist who was appointed last week by the 9th U.S. Circuit Court of Appeals to preside over the Loughner trial. Arizona's new chief federal trial judge, Roslyn Silver, cannot make the call, even if she really wanted to, because she, like every other federal trial judge in Arizona, is now formally recused from consideration of the Loughner case. And for good reason; he is charged with murdering their former boss. 
  • Even if federal prosecutors had the legal authority to move the trial from Arizona to Califonia, which they don't, they would never seek to do so since the government has (and cherishes) the tremendous home-court advantage of being able to try criminal cases in the jurisdiction most directly impacted by the alleged crime. In 14 years of covering federal  trials, I have never covered a case where federal prosecutors have pushed to avoid that significant advantage by seeking a venue change (and I don't even know if they could). It's always the defense that seeks to move the trial out of town to minimize the impact of prejudicial trial publicity on the defendant. And typically, it's the federal prosecutors who talk about the need for a particular community to satisfy its search for truth and justice. 
  • Even if a venue motion were made by Loughner's lawyers in the next few weeks -- which is itself an unlikely scenario -- it is inconceivable that the venue issue could be resolved by the judge within that time. A venue request has to be accompanied by evidence, often in the form of testimony, as well as extensive briefing. Think at least one round of court filings. Think an intense evidentiary hearing replete with expert witnesses on pretrial publicity. Think time for the judge to write his vital ruling. Think six to nine months. It took Judge Richard Matsch about that long to transfer the Oklahoma City bombing trial to Denver.

wrote in detail about the change of venue scenario last Friday. Since then, I am not surprised to learn (from Gerstein first) that the Justice Department is going to fight the change-of-venue request we all assume is coming. Nor am I surprised to know (from Markon's piece) that federal prosecutors are worried that "federal court authorities" (which is the way Markon initially put it) are planning for the possibility of taking the Loughner show on the road to San Diego, Judge Burns' home court and a jurisdiction close to Tucson. If I were a "federal court authority," whatever that means, I would probably be planning in that direction as well. Now, can't we all just get along and back to studying Rule 21 of the Federal Rules of Criminal Procedure? 

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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