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Published: Sunday, 5/21/2006

Change of venue unlikely for Noe

BY CHRISTOPHER D. KIRKPATRICK
BLADE STAFF WRITER
Tom Noe, with attorney John Mitchell, has asked for a change of venue because he does not think he can get a fair trial here. Tom Noe, with attorney John Mitchell, has asked for a change of venue because he does not think he can get a fair trial here.
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An auto executive is videotaped in a drug deal by federal agents. Los Angeles police officers beat a black motorist, and it is aired on national news.

Timothy McVeigh bombs an Oklahoma City federal building and kills 168, including 19 children. A Toledo real-estate baron is charged with writing bad checks. A local priest is accused of murdering a nun.

A Toledo area rare-coin dealer, Tom Noe, is charged with 53 state counts of theft, forgery, and racketeering for his handling of $50 million in state investments.

For such infamous cases, defense attorneys employed at least the same strategy, with differing results - they asked a judge to move the trial out of the areas in which the crimes are alleged to have occurred, claiming that intense media coverage and local opinion tainted potential jurors.

In each of the cases, few could have faulted judges for granting the change-of-venue motions, said David Harris, Balk professor of law and values at the University of Toledo College of Law and an expert in criminal law.

But even so, the practice has fallen out of favor in judicial circles, and judges tend toward the idea that fair juries can be found in any jurisdiction, he said, adding that in his 15 years in Lucas County, he cannot remember a successful motion.

"Judges just don't grant this very often. My perception is that it's presumed that it can be handled within the district, unless there is something extraordinary," he said.

"Remember, it's not required that you are the peer of Mr. Noe but only that you can serve without undue hardship and that you have an open mind and can be fair. If jurors are ready to say this to the judge, then they are presumed to be fair instead of the other way around."

Blade research could not unearth an example of a successful change-of-venue motion here. A jury trial for Mr. Noe is scheduled for Aug. 29 in Lucas County Common Pleas Court, with Judge Thomas Osowik presiding.

On Friday, attorneys for Mr. Noe filed a motion with the court claiming that more than 755 articles, letters to the editor, and editorials containing his name were printed in the newspaper since April 1, 2005, and that an additional 155 articles about the rare-coin scandal were published.

The Blade broke the story on April, 3, 2005.

Dubbed "Coingate" by some, the investigation looked into and exposed problems with a $50 million coin investment by the Ohio Bureau of Workers' Compensation with Mr. Noe. The coverage sparked changes at the bureau, state and federal investigations, and criminal and civil charges against Mr. Noe, who at one time was a GOP fund-raiser and contributor and the former chairman of the Lucas County Republican Party.

Mr. Noe's attorneys contend in their motion that the client could not get a fair trial in Lucas County because of the intense media coverage. The motion does not request a specific new location.

"Indeed, the sheer number of references to Tom Noe in the Toledo Blade has turned Mr. Noe's name into an epithet, using it as a shorthand for corruption or vice in any article that is even remotely related to government, Ohio politics, or investments of any kind," the motion stated.

William Wilkinson, one of Mr. Noe's attorneys, refused to comment on the motion.

Lucas County prosecutors said they plan to oppose Mr. Noe's efforts to have the trial moved. They said a motion opposing the request would be filed soon.

To grant a change, a judge would have to decide excessive publicity has put the defendant at an unfair advantage. A change of venue could also be granted if a judge decides, usually at trial, that an impartial jury cannot be found.

In March, Mr. Noe questioned whether he could get a fair trial when he sought to have every Lucas County Common Pleas Court judge removed from his case because they were either political enemies or political friends. But Ohio Supreme Court Chief Justice Thomas Moyer denied Mr. Noe's request to disqualify Judge Osowik from hearing the case.

Local criminal lawyer Rick Kerger, who writes an occasional column for The Blade, said he cannot remember a successful change-of-venue motion in Lucas County.

"I've been practicing here for 30 years, and I've not seen one," said Mr. Kerger, who is a partner in the Kerger and Kerger law firm. "The kind of evidence you need is so overwhelming."

He said few cases qualify because most people might have an interest in a case for a day or two after reading a story but generally return to the issues of their daily lives.

"The next day Jennifer has a cold or the husband is laid off," he said. "It would be hard to establish that there are so many people in Lucas County [who are] biased. Nobody wants to be on that jury because it's going to take weeks. But if they are on it, they will be like everyone else - they want to be fair. They want to do their job. It's sort of like, 'OK, I'm here.' They are not going to take it out on the government or [Mr. Noe]."

"In my experience, they really try to wrestle with the facts and the law," Mr. Kerger said.

The mountain of coverage and the statewide political reach of the rare-coin scandal begs the question of whether a jury pool could be found anywhere in Ohio that had not heard of Mr. Noe, Gov. Bob Taft, his staff, and the other state figures embroiled in the scandal.

According to news database searches, the Cleveland Plain Dealer and the Columbus Dispatch have mentioned the Noe case in 230 and 267 articles respectively, since April 1, 2005.

Mr. Harris noted that local politicians have been involved with Mr. Noe. Some have been implicated with Mr. Noe in separate federal charges that accuse him of illegally funneling $45,000 in campaign money to the 2004 Bush-Cheney campaign. Mr. Noe is scheduled to enter into a plea agreement to those charges on May 31 in U.S. District Court in Toledo.

Mr. Harris said that if a change-of-venue motion is granted, any other county would do outside of The Blade's circulation area and the viewing range of the major local television news stations in northwest Ohio.

Toledo and the region are especially intimate with the Noe case in a way that other areas, even Cleveland and Columbus, are not, Mr. Harris said.

"This is a standard kind of motion for any case that's had a lot of notoriety. It's the rare case that has national notoriety," Mr. Harris said. "Most times in most cases if they are well-known at all, they are only well-known in a particular region and city."

In the case of John DeLorean, the former General Motors executive who started his own boutique car company, international media coverage of his drug trial was thick.

But he was denied a change of venue and later acquitted. The judge in the case employed a different strategy and instead went to exhaustive lengths to have potential jurors questioned about their exposure to biases based on their knowledge of the case. Mr. DeLorean's acquittal was viewed as a death blow to venue-changing as a strategy to ensure a fair trial.

"In unusual cases, where attorneys clearly establish the possibility of subtle biases special consideration should be given to the identification of juror biases," wrote psychology Professor Reid Hastie in an American University Law Review article on jury selection.

The Yale University graduate and researcher said the judge in the DeLorean case took control by focusing on juror bias instead of granting the venue change.

"The procedure followed by the trial judge in [the DeLorean trial] might be a model for such an inquiry into juror prejudices; so might extensive written questionnaires to prospective jurors, followed by limited oral interrogation. Finally, I recommend that the results of any systematic survey be subject to discovery by both parties to maximize the possibility that all valid findings will be used to increase the chances of impaneling an impartial jury."

In the case of the Rodney King trial, the Los Angeles officers who beat him were granted a change of venue to Simi Valley and were acquitted in 1992 by a mostly white jury. The verdict sparked race riots.

Edwin Bergsmark, the now-deceased former president and chief executive officer of the defunct Cavista Corp., a real- estate and development firm, was denied a change of venue in Lucas County Common Pleas Court and was found guilty on 12 counts of passing bad checks.

McVeigh's trial was moved to Denver, and he was convicted and later executed.

Catholic priest Gerald Robinson was denied a change of venue and was convicted this month of the 26-year-old murder of 71-year-old Sister Margaret Ann Pahl, who was choked and stabbed 31 times in the former Mercy Hospital sacristy.

Prosecutor Julia Bates said the high-profile trial of Robinson, which was broadcast nationally on Court TV, was proof that a defendant can get a fair trial despite overwhelming publicity.

"In the two years since the indictment of Gerald Robinson, there has been an incredible amount of media attention focused on this jurisdiction and this case. But it took only three days to select a fair and impartial jury that wasn't tainted by pretrial publicity," she said.

In their motion, Mr. Noe's attorneys used Dr. Sam Sheppard as an example of how pretrial publicity can negatively impact a trial.

Dr. Sheppard was charged in Ohio's Cuyahoga County Common Pleas Court with murdering his wife, Marilyn Sheppard, in July, 1954.

His conviction was later overturned, assuring legal fame for young trial attorney F. Lee Bailey and providing the foundation for the television show and later the movie, The Fugitive.

"If a judge granted it, certainly no one could criticize. But I would have to say that judges typically have wide discretion to grant these things or not to. And the trend over time is for judges to grant them less often because the feeling is you can generally find 50 or 80 people, and they could then be winnowed down to 12 or 15 to serve on a jury," Mr. Harris said.

"When you talk about venue in the Washington, D.C., sniper case, there was an absolute saturation of media coverage over an entire area. There was a lot of fear, and they caught the guy with the rifle, and all of that. This stuff is much more tenuous and nebulous," he said.

Blade staff writers Mike Wilkinson and Mark Reiter contributed to this report.

Contact Christopher D. Kirkpatrick at: ckirkpatrick@theblade.com or 419-724-6077.



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