The Batavian comments and coverage key part of defense change of venue motion
Submitted by Howard Owens on August 20, 2009 - 11:59pm
A "rural justice attitude" will prevent at least one of the defendants in the June 18 Elba bank robbery from getting a fair trial in Genesee County, according to Batavia defense attorney Thomas Burns.
Burns is defending Matthew J. Wells, who is accused, along with two other men from Buffalo, of robbing the M&T Bank branch in Elba, making off with at least $10,000 in cash, and then leading local law enforcement on a five-hour manhunt (with Wells being the final suspect caught).
In papers filed Thursday, Burns cites extensive media coverage of the robbery and manhunt, with special attention on The Batavian, as part of his change of venue motion.
Comments made by readers on The Batavian, as well as quotes from local law enforcement officials cited in coverage on The Batavian, indicate, according to Burns, that local jurors would be prejudiced against his big city client.
Among the five reader comments Burns includes in his brief is this one by Jeff Allen left the day after the robbery:
"Let's give major kudos to our local law enforcement agencies. The fact is these thugs thought that driving out to a hick town near a Thruway exit would be an easy knock off and escape back to the city. They got a quick introduction to rural justice. The only question that loomed yesterday was who would get them first, the police or a ticked off land owner with a shotgun! Great work everybody (Howard included), you did our area proud!"
Burns also cites quotes from Chief Jerome Brewster of the Genesee County Sheriff's Office and District Attorney Lawrence Friedman in The Batavian suggesting the suspects thought a rural bank might make an easy target.
His change of venue motion rests on three key points:
- Intense media saturation coverage in a small, rural community with "sensationalized reports" combined with instantaneous and interactive technologies.
- Lack of racial diversity in Genesee County (only 2.6 percent of the population is African-American).
- The fact that some 30 to 35 percent of the people living in Genesee County were directly impacted by events that day, primarily because of the BOCES-imposed school lock down.
But it's the news coverage of The Batavian, and the comments on posts, that take up the bulk of the motion by Burns.
The attorney argues that the nature of media has changed, making the case for venue change even more compelling. The last change of venue granted was made by a local appellate court in a 1983 murder case. The trial was moved from Livingston County to Monroe County out of concern for "rural justice" attitudes and local media coverage.
"It is submitted that widespread use of internet news services will require courts to carefully assess the impact of instantaneous news reporting from on-line news services upon small rural counties reacting to high-profile crimes," Burns writes.
"It is reasonable to conclude that the Fourth Department Justices grappling with the Acomb, supra, decision in 1983 would have found the extent of localized publicity significantly increased had that decision been made after 1992, when the internet became widely accessible to the public, and even more so today where internet news sources saturate homes and businesses with instantaneous news of local concern and provide interactive content with subscribers and readers. Of the news services cited herein only the traditional print media and Time Warner services require reader/viewers to pay a fee. 'The Batavian' cited at length in this affirmation is available 24 hours per day without fee. In contrast, in Acomb, it is believed that media resources were exceedingly limited when compared to today's media outlets."
Burns also cites "extensive negative press" following bail review hearings for co-defendants Demone Dillon and Dennis Abrams as the reason he didn't seek bail for his client. Both Dillon and Abrams were offered bail of $250,000 and bond of $500,000 following hearings in which both defense attorneys and the prosecution discussed details of the cases at length. Following both hearings, written and verbal confessions were made available in the public case files. The Batavian reported details of the June 18 events from these sources.
District Attorney Lawrence Friedman said he doesn't believe Burns will win his motion and that it's premature for a change of venue motion because jury selection hasn't even started yet.
"Normally, you wait until you select a jury and then document the difficulty in doing so because of pre-trial exposure," Friedman said.
Friedman, who said he regularly follows local law enforcement cases on The Batavian, said it's rare for media coverage to impact the ability of attorneys to impanel an impartial jury and that it's too soon to say if new media is going to make that job harder.
Burns agreed that it may seem early to file a change of venue motion, but he said court rules compel him to file all of his motions within a certain time frame. In order to preserve the rights of his client, he said, he had to file the motion before today.
On behalf of Wells, Burns filed several other motions Thursday, including one to suppress any statements Wells made after his arrest.
Burns contends that Wells was not read his rights for more than two hours after his arrest. During that time, Burns states, Wells expressed a desire to remain silent and to speak to an attorney, but investigators kept pressing Wells to talk. Wells was arrested at 2:51 p.m., but it wasn't until 5:35 p.m., when a written confession was placed before Wells to sign, that he was read his Miranda rights.
Burns also claims there is a lack of reliable eyewitness testimony to place Wells at the Elba bank. The witnesses can only describe the robbers as black, Burns contends, and cannot positively identify Wells as one of the men inside the bank.
These facts call into question the evidence provided to the Grand Jury that led to the indictment of Wells on the bank robbery charges.
Burns also tipped his hand on a possible defense. Wells, in his defense, will assert "lack of knowledge and understanding of the criminal activity as a result of duress or improper influence by one or both of the co-defendants."
The change of venue motion was filed with the New York Supreme Court, Appellate Division, Fourth Department. The other motions were filed with Judge Robert Noonan in Genesee County. Noonan will hear arguments for the motion at 10:30 a.m. on Sept. 8. There's no word on when the appellate division might issue its ruling.
- Manhunt in progress near Townline and 63
- Elba robbery suspects identified, arraigned and held without bail
- 'I messed up,' Elba robbery suspect texted wife while hiding from police
- Third suspect in Elba robbery enters not guilty plea
- Elba robbery defendant reportedly sterling citizen prior to alleged crime
- Suspects didn't know what they were getting into when they chose Genesee County
- Two Elba robbery suspects to answer to charges in court tomorrow
- Alleged Elba bank robbers indicted by grand jury