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Spotlight: Change of venue case requires planning, preparation and packing

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From the sixth floor conference room in the law offices of Robert Gevers, visitors can look across the Fort Wayne skyline and see a collection of radio towers standing on the horizon.

The towers represent the media and the flood of information, commentary and entertainment that not only keeps the public abreast of what is happening in their community but can also taint a potential jury and hinder the chance for a fair trial. Such concerns over the sustained and extensive coverage of a high-profile case is why a trial of an Indianapolis Metropolitan Police Department officer is being moved from Marion County to the Allen County Courthouse, half a block north of Gevers’ office.
 

surbeck Surbeck

On March 8, attorneys for the prosecution and the defense in the State of Indiana v. David Bisard, 49G05-1101-FB-002156, appeared in Allen Superior Court 1 for an initial pretrial conference where they began ironing out the details of changing venues with Allen Superior Judge John Surbeck.

Moving a trial from one court to another can be cumbersome and brings with it logistical matters that have to be worked out so the lawyers can focus on presenting their case. Transporting office supplies, reserving hotel rooms, securing conference rooms and learning the demographics of the community before selecting the jury are among the tasks that have to be addressed.

Yet, Surbeck and attorneys involved maintained the dynamics of actually trying the case will remain the same regardless of the location.

“The furniture is different but a courtroom is a courtroom,” Surbeck said. “Once you settle down and everybody gets to work, it doesn’t matter where the courtroom is. Everybody has a job to do and does it.”
 

courthouse-15col.jpg Allen County Superior Court I is in one of four historic courtrooms in the Allen County Courthouse. This will likely be the courtroom for the trial of Indianapolis Metropolitan Police Officer David Bisard. (IL Photo/ Marilyn Odendahl)

In February, Marion Superior Judge Grant Hawkins granted the defense motion for a change of venue in the Bisard case because of the media frenzy. Bisard is accused of driving drunk in his police vehicle and crashing it into three motorcyclists, killing one and injuring two others. He has been charged with reckless homicide and multiple operating while intoxicated charges.

Hawkins, in granting the motion for change of venue, pointed to the news coverage that has continued from the initial filing and often includes recaps of the high points in the case.

Attorneys on both sides say the trial date – scheduled tentatively to begin Oct. 15 – is the key to their preparation for trying the case in Allen County. Now that they know when they have to select a jury and present the evidence, they are able to start coordinating things like lodging, transportation of witnesses and how their computers can interface with the electronic devices available in the courtroom.

Surbeck said his first question for the Marion County prosecutors and defense attorneys will be how long they think the Bisard trial will take. Estimates have placed the length at four weeks, and while the judge will give the case as long as it needs, he pointed out he is not going to permit a lot of down time.

“I just think, bottom line, number one – me – and number two – everybody involved – needs to be fair and open-minded and use some common sense,” Surbeck said. “We’ll get through this and get a just result.”

Change is a rarity

The number of change of venue cases in Indiana during 2011 at first blush seems startling at 2,968. However, when calculated against the more than 1.6 million criminal and civil cases filed that year, the number represents less than 1 percent of the total docket, according to the Division of State Court Administration.

Two methods are available for orchestrating a change of venue trial.

Fort Wayne criminal defense attorney Michelle Kraus took part in one method when an out-of-town jury was brought to Allen County. She traveled to Clark County in southern Indiana to seat a jury and remembered having to be prepared to function away from the comforts of her home and office.

“It takes a lot of planning to be able to know who’s going to do what,” Kraus said. “You have to be really detailed.”

Usually, from the moment she woke up she was thinking about the details. Kraus and her team had to figure out where they could find copiers and access printers. They contacted a couple of area attorneys to see if they could commandeer a spare conference room.

The advantage in this type of change of venue is Kraus was able to sleep in her own bed and work from her own office once the trial began.

Marion County Deputy Prosecuting Attorney Denise Robinson experienced the other type of change of venue when she tried a murder case in Porter County. She and her colleagues loaded an SUV and U-Haul trailer with staplers, legal pads and computer monitors, among other things, and caravanned to northwest Indiana.

Robinson is the prosecuting attorney on the Bisard case, and she is reviewing the two-page list of items transported to Porter County to help determine what will have to be taken to Allen County.

John Kautzman, partner at Ruckelshaus Kautzman Blackwell Bemis & Hasbrook who is representing Bisard, said his team is figuring out both the logistical and financial challenges of trying the case in a county that is two-and-a-half hours away. Finding hotel rooms and work space are on the to-do list as well as possibly connecting with local counsel in Allen County.

The venue

The Bisard case will likely be tried in Allen Superior Court 1. The courtroom sits behind a set of wooden doors and, like the other historic courtrooms on the third floor of the Allen County Courthouse, it is a feast of colored scagliola, murals and bas-reliefs.

Allen County and Surbeck were chosen by the attorneys on both sides of the Bisard case. The parties presented Hawkins with two lists: the first list identified the counties in which the parties agreed the case could be sent, and the second list named the jurists they would accept to preside over the trial.

When Hawkins determined it was not feasible for him to be away from Marion County for the duration of the trial, the jurists named on the second list were asked if they would be willing to hear the case. Those who agreed were placed on another list from which each side could remove one name.

To select a jury, attorneys who have worked a change of venue case said an important element is knowing the demographics of the community. Being familiar with the background of the jurors, for example, if they reside in a rural or urban area, will help the lawyers not so much determine who to choose but how to present the evidence.

Inevitably, people will start to form opinions about a case based on what they read in the newspaper or see on television. In fact, Kraus wonders if the judge’s instructions to not read anything about the case may inspire some individuals to go home and search Google.

Gevers recalled when he started his career as a deputy prosecutor in Allen County, any murder trial would be splashed above the fold of the local newspapers day after day. Now it seems only the most heinous crimes garner that kind of media attention.

But, he said, while potential jurors may not know about a particular case, they can still be tainted by the books they read and the television shows they watch. Attorneys recognize the influence the media has through criminal justice shows like “CSI” and “Nancy Grace” and movies like “Double Jeopardy,” where dramatic courtroom scenes involve DNA analysis or forensic experts.

At times, Gevers said, jurors expectations have to be lowered.

“I don’t want them to have that false sense of what it’s going to be like, and when it’s not like that, they lose interest, lose sight of the case, get ticked off at me, at the other side, at the judge,” he said. “They come in thinking, ‘I’m going to be entertained.’”

Once a jury is seated, Surbeck will tell them, honestly, that they are going to be mistreated but that he will make sure they are mistreated as little as possible. People called to serve must give up their time and are tasked with doing a difficult job for which they have little training and for which they must reach a unanimous decision.

“People talk about juries,” he said. “People make fun of juries, but juries work very hard to do what they need to do and do very conscientiously.”

Local impact

Allen County court officials and local attorneys are not anticipating that the Bisard trial will create a major disruption. In mid-April, Surbeck’s calendar will start to be cleared in anticipation of the trial, but the local cases should still be tried in a timely fashion.

The courthouse will be able to handle the trial and the likely crush of Indianapolis media while still taking care of its daily business.

“As beautiful as this building is, as beautiful as the courtrooms are,” Allen Superior Court Executive Jerry Noble said, “it’s a working building.”•

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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