Abril trial to move to Buncombe County
Published 12:27 pm Wednesday, August 6, 2008
Coman made the motion for a change of venue Tuesday, and in addition asked that Abril&squo;s bond be revoked, after learning that the sheriff had contact with potential jurors over the weekend and early this week.
&dquo;Based on what has happened, our concerns are heightened as well,&dquo; Lindsay told the judge, agreeing to join the motion for a change of venue.
Guice ruled in favor of that motion, saying, &dquo;The totality of the circumstances almost demand removal.&dquo;
However, the judge denied the state&squo;s other three motions. Since no jury had been empaneled, Guice said there was no need to declare a mistrial. Further, he decided not to assess Abril all court costs incurred in Polk County. Finally, he decided not to revoke the Sheriff&squo;s bond, leaving Abril free on bail.
The judge, however, gave strict orders to Abril not to have any contact with the state&squo;s potential witnesses or anyone else involved in the case, with the exception of his own defense witnesses.
In interviews outside the courtroom Wednesday, Lindsay down played the alleged juror contact incidents which caused the state to call for a change of venue Tuesday saying the incidents required further investigation.
&dquo;The prosecutor&squo;s motion was based on initial impressions that are not necessarily accurate at all,&dquo; he said. &dquo;It is not as if potential jurors wear some badge identifying them. You cannot tell if someone is a potential juror or a supporter. The incidental contact was very innocent. It was someone very close to his family. They would have been excused (from jury duty).&dquo;
As for the phone call from Abril to a potential juror on Saturday, Lindsay said the attorneys were not at liberty to discuss that matter any further. Lindsay and defense attorney Baiba Bourbeau, who had filed affidavits about their knowledge of the phone call in court on Tuesday, withdrew those affidavits from the public record Wednesday, citing attorney-client privilege.
As for the change of venue, Lindsay said, &dquo;We too were beginning to question whether he can get a fair trial here. There are very strong opinions on both sides of this issue. In the jurors&squo; responses to the questionnaires, we got the feeling not all were being truly candid. We decided just to get a jury in a county where there is no vested interest.&dquo;
Prosecutor Coman told the judge while court was in session that he was concerned about the state&squo;s witnesses whose names had been publicly revealed during the initial jury selection, when a list of 66 potential witnesses was attached to a questionnaire given to dozens of potential jurors on Monday and Tuesday.
&dquo;We are concerned about the safety of a couple of (the state&squo;s) witnesses over here,&dquo; Coman said, now that the witness list had been unsealed. &bsp;
Judge Guice gave instructions that Abril&squo;s bond was conditional and that he was to have &dquo;absolutely no contact, of any form or manner, not to harass or interfere, directly or indirectly,&dquo; with any of the state&squo;s potential witnesses or any other individuals involved in this case.
Guice said the Sheriff must let his Chief Deputy handle any matters relating to citizens involved in the case, and his department further might simply seek assistance from local police departments in any matters related to persons involved with the case.
Lindsay said the Polk County Sheriff&squo;s Department was putting procedures in place to make sure these orders are followed.
As for the extension of time, Lindsay said it is hard to tell if less time or more time is better. &dquo;We were ready to try this case,&dquo; he said.