COMMONWEALTH HAMPSHIRE, ss.

OF MASSACHUSETTS TRIAL COURT OF THE COMMONWEALTH SUPERIOR COURT DEPT. HAMPSHIRE DIVISION INDICTMENT NO. 10-24-38

Commonwealth v. ANTHONYBAYE DEFENDANT'S MOTION TO IMPANEL A TRIAL JURY FROM OUTSIDE HAMPSHIRE COUNTY Now come the defendant in the above captioned matter and requests that this.,
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Honorable Court impanel ajury for trial of this indictment from another county due!Q the ~~ c:: L..::O extensive pretrial publicity surrounding this case. The defendant suggests that a j~e

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impaneled from Hampden County and transported daily to Northampton for trial. The defendant contends that the above action is necessary in order to secure hiS> right to a fair trial and to due process oflaw as guaranteed by the Sixth and Fourteenth-'
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Amendments of the United States Constitution, Articles XI and XIV of the Massachusetts Declaration of Rights and Rule 37 (b) (1) of the Massachusetts Rules of Criminal Procedure. Respectfully Submitted, THE DEFENDANT, Respectfully Submitted, THE DEFENDANT,

DAVID P. HOOSE, BBO#239400 LUKE RYAN, BBO#664999 SASSON, TURNBULL, RYAN & HOOSE 100 Main Street, Third Floor Northampton, MA 01060 (413) 586-4800

THOMAS LESSER, BBG# 295000 LESSER, NEWMAN & NASSER 39 Main Street Northampton, MA 01060 (4l3) 584-7331

COMMONWEALTH HAMPSHIRE,

OF MASSACHUSETTS TRIAL COURT OF THE COMMONWEALTH SUPERIOR COURT DEPT. HAMPSHIRE DIVISION INDICTMENT NO. 10-24-38

ss.

Commonwealth v. ANTHONY BAYE

DEFENDANT'S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION TO IMPANEL A TRIAL JURY FROM OUTSIDE HAMPSHIRE COUNTY

Mr. Baye has a federal constitutional right to a fair trial by an impartial jury free from outside influences. Sheppard v. Maxwell, 384 U.S. 333 (1966); Rideau v. Louisiana, 373 U.S. 723 (1963). In addition, Article XIII of the Massachusetts Declaration of Rights guarantees a criminal defendant the right to a trial where the alleged offense occurs and the indictment was returned. While a defendant may waive this right by filing a motion to change the venue of the trial, Commonwealth v. Aldoupolis, 390 Mass. 438, 441 (1983), this court has the authority preserve both the defendant and the Commonwealth's right to a trial where the offenses took place, by

granting the relief requested in this motion. The Aldoupolis decision makes clear that a Superior Court judge is vested with common law authority to bring a jury from outside the county to Northampton to hear the case. Id. at 444. The Superior Court has "the inherent power to do whatever may be done under the general principles of jurisprudence to insure to the citizen a fair trial, whenever his life, liberty, property or character is at

stake." Aldoupolis at 447 (quoting Crocker v. Superior Court, 208 Mass. 162, 179 (1911)). This case clearly presents circumstances which justify the relief requested due to the amount and nature of the pretrial publicity in Hampshire County.' Hampshire County residents get their print media news primarily from two sources: the Daily Hampshire Gazette and the Springfield Republican Hampshire Edition? Attached to this memorandum are the articles that have appeared in those publications. They are

problematic and noteworthy beyond simply their volume in several respects which are discussed below.3 1. Reference to the Defendant Being Responsible for Other Unsolved Fires

] Clearly, media interest extended beyond Hampshire County. According to GazetteNet.com, Mr. Baye's arraignment in Northampton District Court was attended by three television stations from Springfield, NECN and two Boston stations. Reporters and photographers from the Daily Hampshire Gazette, the Springfield Republican and the Boston Globe were present as were an AP correspondent from Connecticut, a radio news reporter from WFCR.
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Both newspapers have an on-line edition: GazetteNet.com and Masslive.com.

The defendant would note that recent studies suggest that pretrial publicity may have a significantly greater biasing effect on jury decision-making than cognitive psychologists previously perceived. For a thoughtful discussion of this subject, see CHRISTINE L. RUVA,How PRETRIAL PUBLICITY AFFECTS JURYDECISION MAKINGANDMEMORY(Nova Science Publishers 2010). According to Ms. Ruva, "Research on the misinformation effect ... and source memory ... suggest that jurors may have a difficult time distinguishing between information that they receive before trial in the form of [pretrial publicity] and evidence presented at trial." Id at 3. In fact, "[a] delay between exposure to information (e.g. [pretrial publicity J) and retrieval of that information (during jury deliberations) could lead to a type of sleeper effect ... in which the memory of the low credibility or unreliable source ([pretrial publicity D is no longer remembered and the information is attributed to a credible or reliable source (the trial)." Id. at 4. For this reason, "judicial instructions admonishing jurors not to use [pretrial publicity] may be ineffective between jurors cannot distinguish between the two sources of case information ([pretrial publicity] and trial evidence)." Id
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Prior to the fires of December 27,2009, there had been several unsolved arsons in Northampton, many of which were in Ward 3, the neighborhood where Mr. Baye has lived for most of his life. This fact was brought out almost from the moment Mr. Baye was accused. While no one ever directly accused him of responsibility for these other fires, there are several references to investigators pursuing a link between Mr. Baye and these unsolved crimes. See, e.g., GazetteNet.com, Update: District attorney says sites Some articles referenced the

of Northampton Arsons selected at random (Jan. 5,2010).

close proximity between Mr. Baye's home and other fires. See, e.g., Masslive.com, Investigators say Anthony Baye used cigarette lighter to start fire that killed 2 Northampton men (Jan. 5,2010).
2.

Expressions of Confidence by Prosecutorial Authorities that the Defendant is Guilty

Again, from the earliest moments, there are local media references to the Commonwealth's belief that Mr. Baye is guilty. In one of the same articles referenced

above, former District Attorney Elizabeth Scheibel is quoted as saying, "We're very confident we have the right person ... " District Attorney Scheibel repeated her statement for the following day's edition. 3. Editorial Opinion of the Defendant's Guilt opinion is another. The Daily

Factual news reporting is one thing-editorial

Hampshire Gazette editorialized on January 6; 2010, only two days after the defendant's arrest that, "Baye's arrest brings relief to all those fearful that new fires might be lit-and more lives put at risk." The editorial went on to say that, "we hope the criminal justice system is able to deliver justice to the family and friends of the men who died." Notably absent from this comment is any hope for justice for the accused.

4.

References to Skill and Dedication of Fire Investigators

There are numerous references to the skills and dedication of the persons who will ultimately testify at this trial. For example, a GazetteNet.com article on January 6, 2010 quotes state Fire Marshal Stephen Coan saying that, "this is a textbook case of how arson should be investigated." In March of201 0, the Gazette again editorialized in a similar

vein: "How Baye's criminal case will play out over the next year remains to be seen. What is clear is that, as from the start, professionals are hard at work making their caseand someone will quite likely be held accountable." (Emphasis supplied). 5. Coverage of the Defendant's Motion to Suppress

The local media coverage ofthe defendant's motion to suppress the fruits of his interrogation is clearly problematic. While the court has not yet ruled on the motion, any

outcome raises concerns. If the court grants suppression, it will be difficult to find jurors in Hampshire County who have not heard about the defendant's purported "confession." Even if the motion is denied, the defendant stands to suffer considerable prejudice from the publicity related to his request for relief. As the defendant's pleadings make clear, one of the suppression grounds he has asserted concerns the issue of whether the statements he made were "voluntary." Pursuant to the "humane practice,"

the question whether [statements are] voluntary is to be decided at a preliminary hearing by the presiding judge in the absence of the jury .... If the judge decides that they are admissible, he or she should instruct the jury not to consider the statement if, upon the whole evidence in the case, they are satisfied that it was not the voluntary act of the defendant. ... [A]t the trial a defendant may place before the jury all the circumstances of his confession, including its voluntariness, even if the issue had been resolved against him by a judge at a voir dire hearing.

Hon. Kent Smith, 30 Mass. Prac., Criminal Practice & Procedure § 6.74 (3rd ed. 2010) (footnotes omitted) (emphasis added)." Should this court deny the defendant's motion to suppress, media coverage of that ruling could interfere with the defendant's right to place the context of his statements before jurors and have them make an independent determination as to whether the statements at issue were voluntarily made. 6. Community Involvement

Media coverage of the fires and the defendant's alleged involvement in them is not the only basis for bringing in a jury from outside Hampshire County. The level of community involvement in solving the fires and supporting the victims also provides a strong indication that a substantial number of prospective jurors in Hampshire County were either personally affected, or knew someone who was personally affected, by the incidents giving rise to the pending charges. For example: Firefighter Response Not only were all Northampton firefighters and their families involved in fire suppression, but so were the firefighters of many surrounding communities. The fire

departments from Easthampton, Amherst, Goshen, Hatfield, Hadley, South Hadley, Williamsburg, and Westhampton were all involved in either suppression efforts or in some other form of mutual aid on the night of December 27,2009. Community Meetings

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It perhaps goes without saying that the reason judges make preliminary rulings on voluntariness outside the presence of juries is because jurors cannot be expected to disregard ajudicial finding ofvoluntariness in the process of making the "final determination" on the issue. Commonwealth v. Blanchette, 409 Mass. 99, 106 (1991) (citation omitted).

On December 28,2009, the Ward 3 Neighborhood Association held a community meeting to discuss responses to the fires. Over 500 people attended. One year later, a community vigil was held to mark the anniversary of the fires. Over 100 people attended despite a temperature of about 20 degrees. Information Sources About Fires Investigators have repeatedly noted in the news media that they have received dozens of tips and theories from the community. In fact, it appears that there were hundreds of calls made to tip lines regarding possible suspects in the fires. District Attorney Scheibel used the numberJOO in a Masslive report shortly after the defendant's arrest. It is logical to assume that the vast majority of these came from Hampshire County citizens. While obviously not all tips directed attention towards Mr. Baye, the number of callers evidences a strong community involvement and investment in the solving of the crimes. Facebook and Other Social Media Interest A Facebook page was set up in the wake of the fires titled "Friends of the Northampton Fire Victims." According to the Daily Hampshire Gazette, there were an astonishing 4,554 members of the group. A spinoff page was created after Mr. Baye's arrest was titled, "Northampton Fires Discussion Group." Community Financial Support for Victims Following the fires, a "Northampton Neighbors Relief Fund" was established. Many individuals and businesses contributed. A year after the arsons, the Gazette reported that "fundraisers, clothing donations, offers of food and shelter, gift cards from city merchants-the generosity seemed endless." Daily Hampshire Gazette, For one

family, loss eased by city's concern (Dec. 27, 2010). A later Gazette article reported that $86,907.43 had been contributed to the Northampton Arson Victims Relief Fund.

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While the court has the ultimate authority as to what county from which to draw a jury, see Commonwealth v. Arriaga, 438 Mass. 556, 561 n.2 (2003),5 the defendant suggests that Hampden County would be appropriate. Although surely there will be a substantial number in the jury pool who have heard of the case, the defendant is confident that with an enhanced voir dire and perhaps a questionnaire, a fair and impartial jury can be selected.

Respectfully Submitted, THE DEFENDANT,

Respectfully Submitted, THE DEFENDANT,

DAVID P. HOOSE, BBO#239400 LUKE RYAN, BBO#664999 SASSON, TURNBULL, RYAN & HOOSE 100 Main Street, Third Floor Northampton, MA 01060 (413) 586-4800

THOMAS LESSER, BBO# 295000 LESSER, NEWMAN & NASSER 39 Main Street Northampton, MA 01060 (413) 584-7331

5 As this court is well aware, in Arriaga, when the defendants sought a change of venue from Hampden County, the court ordered instead that a jury be selected from Essex County and sequestered during the Hampden County trial. On appeal, the SJC saw no reason to question or comment upon this exercise of judicial discretion.

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