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Venue move rarity

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A southern Indiana judge's decision to survey residents about their knowledge of a high-profile murder case is raising questions within the legal community. It may signal a first for this type of court-conducted questioning aimed at determining whether a third trial should be moved elsewhere in the state.

Warrick Superior Judge Robert Aylsworth wants to determine whether a fair jury can be empanelled in that county, which has jurisdiction over the case involving former Indiana State Trooper David R. Camm. Camm has been twice tried and convicted for the September 2000 slayings of his wife and two young children. He was sentenced to life in prison after first being convicted in 2002, and that sentence has been twice overturned on appeal.

The Indiana Court of Appeals in 2004 overturned his first conviction that came from a Johnson County jury brought into Floyd County. On retrial, the case was transferred to Warrick Superior Court and he was convicted in 2006 and sentenced to life in prison without parole. The Indiana Supreme Court reversed that conviction in June 2009 finding two reversible errors, but justices found sufficient evidence to support the three murder convictions and ordered a new trial.

In early December, Floyd County Prosecutor Keith Henderson decided to try Camm a third time, and defense attorneys later filed a change-of-venue petition to have the case moved to northern Indiana because of media exposure throughout the southern half of the state. Henderson opposes the move, and now Judge Aylsworth is trying to determine whether to move the case.

The murders have been the subject of national coverage - both print and televised, including CBS' "48 Hours" program.

Judge Aylsworth declined to speak with Indiana Lawyer about the case specifics or in general about the venue-change issue, citing both the judicial code of conduct and pre-trial publicity concerns relating to the Camm case. But attorneys on both sides said Judge Aylsworth is mailing surveys this month to 200 randomly selected Warrick County residents, who've been included on the general jury pool list but would be excluded from possibly being called on this case.

After parties weren't able to agree on a venue, the defense and prosecution were asked to give Judge Aylsworth proposed questions for residents about their knowledge of and thoughts about the Camm case relevant to the venue issue. The court reviewed those questions and put together a final list for counsel to review; attorneys expect the court will mail those surveys this month once finally approved.

Henderson indicated he assumed this procedure has been used elsewhere, but he didn't know of any specific situations. The goal is to have the questionnaires sent to the bottom of the panel - the ones who wouldn't be called for this case - to avoid prejudice, he said.

"I think it's a very good decision, and what the judge is doing is a more accurate representation than a poll because he's taking the questions directly to those who could theoretically be called to sit as jurors."

This high-profile case is unique because it's a third trial that's already been tried with an outside jury and moved 100 miles away from Floyd County to Warrick County, Henderson said. He believes it's important to keep the case inside Warrick County, despite arguments from the defense that pre-trial publicity has invaded the process and made it impossible for anyone in the southern part of the state to be objective about the case.

"If the goal is to find someone who hasn't heard about the case, that's just not possible," Henderson said. "Even if you move to a different media market in Indianapolis, Fort Wayne, or South Bend, the AP and online coverage means that everyone has access to it ... if venue's changed, that new market will immediately cover it and do the same thing. This is about jurors being able to look past that knowledge and render a fair verdict."

Indianapolis defense lawyer Richard Kammen is one of Camm's court-appointed attorneys, along with Indianapolis-based Stacy Uliana who was a part of the defense team during the second trial. Kammen replaced Bloomington attorney Katharine Liell, who took the case soon after the first convictions and successfully appealed twice before withdrawing in January.

"It's not unusual for courts to try and determine what the level of penetration is in a community and what impact it could have on having a fair trial there," Kammen said. "How that's done varies from place to place, but it's not unusual for a court to want something in one way to ferret out the exposure from media coverage."

Though Kammen said he's observed and been involved in cases where this court-conducted questionnaire method is used both inside and outside Indiana, he wasn't able to pinpoint those situations. Often, jurors are called in from different counties, or the case itself is moved specifically for the trial so that pre-trial hearings can remain local. Kammen said Judge Aylsworth's method is a reliable way to determine whether a venue change is needed, and that it will save all parties from having to use more elaborate public opinion polling and survey research methods. Those methods are typically expensive and take longer to compile.

"This may be a less reliable way of getting the same information, but it does the job and we'll see what the response is," he said. "Anecdotally, there's a fairly high degree of notice of this case (in southern Indiana) and the county's pretty polarized on the issues of David's guilt, the reversals, and the really extraordinary costs the county will be asked to bear for a third trial."

Under Indiana law, the county where the charges were filed is required to cover change-of-venue costs - in this case Floyd County. That includes transportation and boarding of the witnesses and defendant, the cost of prosecution and legal proceedings, and the cost of increased security. Generally, broad questionnaires go to potential jurors as part of the pre-voir dire process, according to David Remondini, who was the longtime counsel for the chief justice before starting in 2007 as chief deputy executive director for the Indiana Supreme Court's Division of State Court Administration. Those questionnaires typically aren't focused on venue exposure and cover more than mere knowledge about a case, such as information about a person's health, work history, or possible conflicts that may be relevant. He hadn't heard of judges or courts specifically mailing questions to county residents who wouldn't be potential jurors on a case, but said many judges have used the general questionnaires for high-profile cases during the past two decades.

Indiana University-Purdue University Indianapolis political science professor Brian Vargus, who conducts public opinion polling and research for high-profile cases and has been published on this topic, said he wasn't aware of any Indiana cases where court-conducted surveying has been performed. Federal evidence rules allow for only credited and accepted research like this to be admitted as evidence, but he didn't know about venue changes or how this might apply in state courts. Vargus said a "good survey" means typically spending at least $8,000 to $12,000, and he speculated that cost could be a factor in having the court do this.

"You might consider this a strange extension of voir dire, the judge sending out something like this," he said, noting that he isn't familiar with the survey or case venue issues. "You have to look at response rate, wording, how it's mailed, experience the judge has in doing something like this, even the letterhead it comes on could affect how people respond. ... I understand why they're trying to do it, and I'm not an attorney, but I'm not entirely sure if this is on solid ground and it could be opening up issues on appeal. If they all agree, maybe it's fine. But you never know."

Throughout Indiana, trial judges and attorneys involved in these types of cases say they too have used the more generalized approach and found it unusual to hear about Judge Aylsworth's court-conducted venue questionnaire. In the neighboring Evansville area, Vanderburgh Circuit Judge Carl Heldt said he hasn't done this, but attorneys have presented information that in the past has led him to both bring in outside jurors and also move cases to other venues. Other judges and prosecutors statewide say the same.

Marion Superior Judge Mark Stoner pointed out that high-profile case exposure often doesn't disqualify people from being selected as jurors because massive media coverage often doesn't stick in the minds of residents enough to impact their jury obligations. He noted how last year's police-shooting case moved to Valparaiso was the first venue change from Marion County since the 1992 case involving a police brawl, and even the recent case had consent from all parties. Also, the recent Hamilton Avenue slayings trial wasn't moved away, the judge said. However, this method might be necessary because of the unique nature of the Camm case.

"Faced with unusual situations, sometimes it means unusual circumstances are appropriate," Judge Stoner said. "A major case where you're trying it two or three times might call for that. In a smaller county, maybe with a bigger sensational case makes it more difficult and this could make a difference."

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