Venue move rarity

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."