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DISTRlCT COURT FOURTH JUDICIAL DISTRlCT Court File No.: 27-CR-11-28801
State·of Minnesota, Plaintiff, vs. Amy Margaret Senser, Defendant. MEMORANDUM IN SUPPORT OF DEFENDANrS MOTION FOR CHANGE OF VENUE
INTRODUCTION The defendant, Amy Margaret Senser, has been charged with two counts of felony -level criminal vehicular homicide operation pursuant to Minn. Stat. §§ 609.21, subds. 1(7), la(a); 169.09, subd. 1, and Minn. Stat. § 609.21, subds. 1(7), la(a); § 169.09, subd. 6. This memorandum is submitted in support of Ms. Senser's motion for change of venue pursuant to Rules 24.03 and 25.02 of the Minnesota Rules of Criminal Procedure. Specifically, a fair and impartial trial cannot be held in Hennepin County because prejudicial publicity creates a reasonable likelihood that a fair trial with an impartial jury cannot be located in this venue. Ms. Senser's motion for a change of venue must be granted in the interests of justice. FACTS The facts section of this memorandum refers to news articles, online commentary, and other media sources. Additional facts relied on are those set forth in the Defendant's Motion to Dismiss, the State's Second Amended Complaint, and other motions filed on behalf of both the State and Defense.
The following represents a sampling of the vitriolic and threatening comments taken from literally thousands of online posts generated by mainstream media outlets, social media, and independent blogs pertaining to Ms. Sensor's case.' The posts are made primarily by subscribers and readers of local Twin Cities publications': Emily Gurnon, Amy Senser fatal hit-and-run: Charges should stand, prosecutors say, Pioneer Press, http://www.twincities.com/localnews/ci_19987697 (Feb. 17,2012): • "Skanky 'killer' Sleezebag should rot in jail her whole life along with her Phony cover up leading husband ... Where's her scummy low life friends she was out getting plastered with to step forward and admit she was hammered?" Posting of Craig Lundeen. • "put her in prison where she belongs." Posting of Jody Flowers. • "maybe she was not aware that she killed another person with her car because she was so wasted." Posting ofCy Thao. • "I ran out of gas once ... Fortunately for me I was not run over & killed by an intoxicated person." Posting of Jeff Miletich. Lauren Radomski, Senser Attorney: Fatal Crash Victim Impaired by Cocaine, KSTP, http://kstp.com/article/stories/s2482142.shtml (Feb. 3,2012): • "Come on Senser _ you know you hit this individual and impaired by a substance 01' not you NEEDED TO STOP!" Posting of Jennipher Houlihan. • "Amy Senser should fry for this." Posting of Guy Peacock. • "wonder who they paid off to make up the toxicology report ... the guy had to borrow money for the gas, how much coke could he have bought?" Posting of Jeff Johnson. David Hanners, Amy Senser fatal hit-and-run: 'His blood was all over her car,' prosecutor says, Pioneer Press, http://www.twincities.comlci_19800755 (Jan. 23, 2012): • "The skank got plastered and ran down another person and left him to die like an animal on the road as she drove away and started planning her cover-up ... All we can hope is Slimmy Joe we meet the same end as the skank:! My guess is she will drink herself to death and end it a little faster." Posting of Craig Lundeen. • "So I can get drunk and run someone over, if I didn't know I hit them, I'm not guilty? Wow, lets get drunk: then!" Posting of Kayer Vang -Xiong.
I The individual posts are listed under the title, author, date, and website of the online news article of which they are written in response to. Referenced articles and postings are also attached to this memorandum as Exhibit C in order of their citation. 2 The posts are quoted verbatim as they appear on the online forums. All spelling and grammar mistakes have remained unaltered.
"I wonder if Senser had to use her windshield washer to see through all the blood." Posting of Mark Gisleson. "Having read many of her attorney's comments regarding this, I really, really, really hope one of his close family members is struck and killed like a dog in the street." Posting of Peter Eggert, "Nothing like getting hammered and going to pick your kid(s) up from their outing!" Posting of Randy French. "Guilty!" Posting of Gerry Stimmler.
Leslie Rolander, Witness: Driver of Senser Vehicle was http://kstp.comlnews/stories/s2486945.shtml (Feb. 8,2012): • "Drunken driving." Posting of Rayn Barnes.
Tim Blatz, Attorney: Threats Aimed at Amy Senser, Fox 9 News, http://www.myfoxtwincities.comldpp/news/mi1111esota/attorney -threats-aimed-at-amysenser-jan-12-2012 (Jan. 12,2012): • "She is guilty as sinl, ..I hope she looses everything." Posting by Dylan Boyd. Emma Carew; Read it here: criminal charges filed against Amy Senser, Star Tribune, http://www.startribune.comlI29902758.htmI(Sept. 15,2011): • "There is no way she didn't know she had hit this man, no way. She should be facing more charges than this one!" Posting of harden long. • "Listen, people are not stupid, she obviously had too much too drink which is even more reason to not stick around and do the right thing." Posting ofjrtruth21.
httpv/minnesota.cbslocal.com/Zu proceed! (Feb. 17,2012)3: • "from what i have heard from an ex employee at sensers bar and grill or whatever the name is, is that Amy would come in every afternoon and get drunk what a dumb spoiled little female dog she deserves to be in jail.,;" Posting of common sense. • "She is a murderer and her husband is a co conspirator." Posting of Guy. • "The only way you hit and kill someone on an off ramp is if you are a drunk! Don't worry your kids can visit you in prison Amy." Posting of Realist. • "get her behind bars already 1 !! so sick of seeing that SCalY pic of her!" .. .it ceased to be an 'accident' ... when she willingly and knowingly drove off to leave the man to die!!!! it became a 'crime' at that point.ia vehicle homicide. Only a heartless drunk would of done that, which Amy was that night She better be conficted and thrown in jail for a good long time. justice for that Laotion man is way over due! I" Posting of Larry.
CBS Minnesota, 12/021171 county-attorney -amy-sensers- trial-should-
Author unknown. 3
"She was drunk or wantonly tried to kill the guy ... one of the two." Posting of Real Talk. "Joe called and ... offered me use of the spouse if I'd blow up one of his places. Needs the insurance $$$ to pay Nelson ... so he can bribe a juror and maybe the judge." Posting of Saw BS. "I HOPE SHE GOES TO PRISON FOR THE MAXIMUM." Posting of James.
Charges: Amy Senser Had Plenty Of Time To Avoid Crash, CBS Minnesota, http://minnesota.c bsloca1.coml20 12/0 11231 charges-amy -senser- had-plenty -of-time-toavoid-crash! (Jan. 23,2012)4: • "Rot in hell Amy and Joe." Posting of Rotten people they are. • "Umm, car swerving erratically minutes before impact. Husband called a chemical dependency treatment center the next morning? She's passed out cold an hour after murdering a man? Read between the lines; she was wasted as heck." Posting of obvious. • "They have said since the beginning that Amy had some alcohol." Posting of red. • "Rot Amy - rot. Just like the guy you left on the road to die is now doing .... rot you skank." Posting of Admiral SuperDude. "Payback time Amy ... an eye for an eye. Let people show you the same • type of mercy you shows Mr. Phatavong. NONE" Posting of Worthless. • "Heard '01 Amy Senser was scheduled to go to drug/alcohol treatment the next morning ... " Posting of Jasper. • "whats Amy Sensers Address?" Posting of Billy. • "Amy Senser has become the Casey Anthony of Minnesota. And Papa Joe has become the OJ. Losers." Posting of Officer Fife. • "Why is this Killer walking amongst us yet?" Posting of Stalin or Stalling ?
Rachel Slavik, Attorney: No Proof Amy Senser Knew She Hit Someone, CBS Minnesota, http://minnesota.cbslocal.coml20 12/0 1/24/attomey -no-proof-amy-senser-knew-she- hitsomeonel (Jan. 24,2012): • "The loud thud, the blood splattered on the windshield, the screams ... none of that registered? ..She knew what she did. Papa Joe knew it too. Both of 'em can rot in the heated basement." Posting of r bean. • "How can I get into the jury pool????? How how how how .... please have them call me puleeeeeeeeeeeeeeszzzzzzzzze" Posting of Waiting. • "is there a more detestable person living among us? .... i think not." Posting of alligator. • "Indeed - a change to public park. Rope.Tree. no admission fee." Posting of try this then.
4 Author unknown. 4
"agree so let's just skip the prelim's, grab a rope and head to Blake school there on Blake Rd and find the right tree I'd anticipate a large crowd but the parking lots are big and the Senser's can just walk over." Posting of simple 'nuf. "senseless Senser's have no pride. Amy needs to a bottle of valium,' a bottle of seconal and -then a big jug of good 01' Walker Black and just bow out as they say. cya Killer." Posting of Double up.
Rachel Slavik, Amy Senser Charged With Felony For Hit-And-Run, CBS Minnesota, http://minnesota.cbslocal.coml20 11/09115/criminal-charges- in-hit-and-run-case-coming/ (Sept. 15,2011): • "I have a suggestion for charges that should be brought: MURDER, or at least manslaughter. And then hang her for leaving him there to die while she ran away." Posting of Try this one. • "Another drunk." Posting of KegHead. • "416 John St, Edina is where she lives. Everyone is free to go speak their minds there. Have a good night and I will see everyone there tomorrow." Posting of Freedom is not free :).
Attorney: Amy Senser Driving SUV In Fatal Hit-And-Run, CBS Minnesota, http://minnesota cbslocal. com/20 11/09/02/attorney -amy -senser-driving-suv- in- fatal- hitand-tun! (Sept. 2, 2011l . • "Throw the B---- in the slammer. How could she not know she hit someone unless she was slam down chunk AND driving." Posting of concerned citizen. • "What we need is a fair and impartial investigation, with a dignified trial to ascertain all the facts, time for a jury to deliberate and hear all opinions, and then HANG THAT *(&%1\$ FROM THE NEAREST TREE or at least a few years in jail." Posting of Angus. • "Amy Senser belongs in prison for a LONG time." Posting of Metro Voice. Edgar Linares, Amy Senser Makes 1st Court Appearance, CBS Minnesota, http://minnesota.cbslocal.com/20 11/09/16!arny-senser-makes-l st-court-appearance/ (Sept. 16,2011): • "The woman deserves NO SLACK ... what slack did she give that young man she mowed over and left to D1E",like a dog in the street.??? The courts better send her to jail for a looooonnng time. Justice for that young man she killed!!!" Posting of Marney.
Senser Attorney Wants Hit-And-Run Case Thrown Out, CBS Minnesota, http://minnesota.cbslocal.coml2012/02/25/senser-attomey-wants-hit-and-run-casethrown-out! (Feb. 25, 2012l • "We ordered some signs, magnetic ones, that says "Murderers Club" and soon as the criminal thing is done we gonna spend some time in her 'hood, at Joe's pubs and intend to do whatever we can to keep her visible. Checked and it's all legal as lond as we harm no one, stay on public thruways, etc. Ordered 10 sets - 20 magnets. And we have people begging to put them on... Payback time Amy, payback time." Posting of Doggone it all Amy. • "Great idea and how do I get on the waiting list? Maybe I should order up some and bring the boys too? bring the nasty woman to her knees and never let her up she can join the victim in the dirt... him under and her on top." Posting ofUnele Chico Rico. • "The Sensors are irresponsible, insensitive, arrogant, and they think they're above the law. May they both rot. I'm going to the nearest Senser s restaurant and leave Joe a large, smelly package of the same stuff he and Amy are filled with." Posting ofItchabod. • "Someday I wish to have the same opportunity as Amy had, but with her on the ramp instead walking and me driving. Or hell - lets share the pain and hope it's her kid. an eye for an eye Amy.... " Posting of A wish. • "rather than a fast death let's just pray she has cancer soon or AIDS or such and suffers greatly. She'll rot in hell but she deserves to on earth too." Posting of kinda harsh A wish. Amy Senser Appears In Court On Amended Charges, CBS Minnesota, http://minnesota.cbslocal.coml2012/0 1112/amy -senser-appears-in-court-on-amendedcharges/ (Jan. 12,2012/: • "LOCK HER UP. SHE KILLED A PERSON. COME ON PEOPLE. .." Posting ofVICIG. • "because a good decent honorable person would do the RIGHT thing and fess up.and be accountable for your crime... of which Amy is none of those.; shes a disgusting,dishonest despickable human being who deserves to spend many yrs behind bars for using her vehicle as a lethal weapon and KILLING a man and leaving him to DIE!!! Its called 'accountability', its called responsible!!" Posting of Marlis. • "Maybe God will have mercy on their souls but we do not need to as the living. Take them down people, take them down." Posting of Bad woman walking around. • "Hey - lets all head over to the Sensers and bring some Mike's, maybe some scripts and whatever else you have available. Park your cars in the back yard please so we keep the thing under control. Amy is offering her
Author unknown. 7 A~thor unknown.
charm to the first 50 in the door. After that it'll cost ya. P-P-Party time." Posting of Party Time.
Judge Puts Senser Civil Case On Hold, CBS Minnesota, http://minnesota.cbslocal.coml
2011110/17/judge-puts-senser-civil-case-on-holdl (Oct. 17,2011)8: • "what a bit*ch hope she has a slow painful death." Posting of burn baby burn. Rachel Slavik, Hit-&-Run Victim's Family Sues Sensers, CBS Minnesota, http://minnesota. cbslocal.coml20 11/09 I06/hit -run-victims-family -sues-senser- family I (Sept. 6, 2011): • "People like this will have their special place in the after life." Posting of GrandmaJ. • "Hope she serves a lifetime." Posting ofKC. Holly Wagner," Witness: Driver In Senser Crash Had Light Hair, CBS Minnesota, http://minnesota. cbslocal.coml20 12/02/08/witness-driver- in-senser-crash-had -light -hair/ (Feb. 8,2012): • "God will get you Amy and Co. if the Devil doesn't first." Posting of Classy. • "Put this BITCH in jail and throwaway the key ... don't let them BUY her way out ofthis ... she killed the man ... she must go to prisonlll" Posting of Todd. • "maybe both Amy and daughter need to rot on a rope for the lies. And I will not even taught that sleezeball called an attorney, His day is a corning." Posting of Lies and more lies .... crazy. • "1 wanna rip her hair out and slam the junk into the mouth and then make her ... gaggingly ... say yep. Me did it and me proud of it." Posting of Full up.
Senser Att'y: Cocaine In Victim's System At Time Of Death, CBS Minnesota,
http://minnesota.cbslocal.com/20 12/02/03/sensel'-atty -to- file-motion- to-dismiss-criminaleasel (Feb. 3, 2012)9: • "Death to the Senseless Killer an eye for an eye a life for a life a rope is awaiting a swinger." Posting of Thou shalt not. • "She's as evil and guilty as OJ, Adolf, Charlie Manson and Attila ... She will rot in he!!, hopefully she will be begging for a meal on a comer and may no one have mercy on her pitiful arrogant evil soul." Posting of Truth's a bugger. • "What a waste of a life she is." Posting of Shelly. • "Guilty. an eye for an eye - she admitted twice that she did it. where is the rope?????" Posting of Big Tree.
8 Author 9
unknown. Author unlrnown. 7
"bang bang bang." Posting of bye killer. "Amy's a crackhead alcoholic and going to prison for awhile ... ~~ Posting of James.
Gregory Pratt, Joe Senser called rehab center after Amy's hit-and-run, CityPages, http://blogs.citypages.comlblotterI20 12/0 11 amy _senser _hit_and_run _amended. php (Jan. 23,2012): • "Now can this fucking piece of shit be put away for a very long time? ..Anyone defending her can die in a fire, seriously. This is inexcusable." Posting of AG. Jessica Lussenhop, Amy Senser still won't talk about hit-and-run, CityPages, http://www.citypages.com/20 11-09- 21Inews/amy-senser-still-won- t-talk-about -hit -andrun! (Sept. 21, 2011):' • "HA-HA-HA-HA, Amy Senser so you think you are going to get away with this ... There is a GOD, and I will guarantee you that if YOU DON'T FESSUP, He will do it for you." Posting of Denny Peterson. • "She IS GUILTY. The blood on the hood of the car proves it." Posting of anna. • "i say 20 minimum. that so wrong to say you didn't know you hit something. but you come home panicing and see blood on your mercedez. hope she gets killed in jail." Posting ofNOTaFAN. Mike Mullen, Amy Senser's hit-and-run ruled "accidental," CityPages, http://blogs.citypages.comlblotterI2011/09/amy_senser_ hit_and_run _ accidenta1.php (Sept. 14,2011): • "Headline should read: Rotten rich cunt gets away with murder." Posting of Asdf. • "Hang her high!" Posting of guest. Jessica Lussenhop, Amy Senser charged with felony criminal vehicular homicide, CityPages, http://blogs.citypages.comlblotter/20 11109lamy_ senser _charged_with _felony _criminal_vehicular_homicide.php (Sept. 15,2011): • "why would you defend this liar!!!!! She deserves a lifetime in Prisonl!! I" Posting of Ksmith1422. • "amy senser is a dog." Posting of NOTa FAN. Mike Mullen, Star Tribune spikes op-ed critical of Amy Senser, CityPages, http://blogs.citypages.comlblotter/20 111091amy _ senser _hit_ and_run _star_tribune _col urn n_gail_rosenblum_bob _ collins _ esme _murphy_anna _prasomphol_true _thai.php (Sept. 13,2011): • "Fuck the Sensers ... 1 hope the people will take it out on these fucking scumbags." Posting of Michelle Bachmann.i'' • "well i hope that bitch rots in jail." Posting of srsly.
Please note that this is a screen name.
Amy Senser Faces Another Felony Charge In Hit-And-Run, CBS Minnesota,
http://minnesota.cbslocal.coml20 12/0 1II O/amy-senser- faces-another- felony -charge- inhit-and-run! (Jan. 10,2012)11: • "just lock her up and throwaway the key already." Posting of Kyle Weaver. • "Oh, I'm a firm believer in due process. I think she should be duly processed, then locked up, and then throw away the key." Posting of Doc Mark. • "I hope she fries." Posting of Crazy Eyes. • "Guilty as Adolf Hitler and just as sleazy. Take her down and waste her. I got a rope and can tie a knot pretty well." Posting of Hey judgement. • "It wasn't even her that hit him. The story is she's covering up for her drunk kid. What a waste of human skin. Hopefully she kills herself and the rest of her family." Posting of bob. Other online sources show the great amount of public attention that has been given to Ms. Senser's case. For example, Face-book pages have been created to further discuss Ms. Senser's case and feature a plan to boycott Joe Senser's restaurants.P Further, online "stickers" (known as "memes") have been created that individuals can download or post to their social media profiles. These memes feature a photo of Amy Senser walking out of court with her husband and attorney and have sayings on them such as, "Sorry I killed you, man ... LOL not really," "Where's a decent car wash around these parts," and "1 didn't kill a person .. .1 killed a poor.,,13 Numerous news articles and videos feature Hennepin County Attorney Michael Freeman making statements about Ms. Senser s case. As reported by local media, Mr. Freeman stated in a press conference, "She knew she hit something. It's irrefutable. His blood was all over her car." He continued, "She knew that she hit him at the time of the accident and she had a legal obligation to stop." See, e.g. David Hanners, Amy Senser
Author unknown. Exhibit A, attached. 13 Exhibit B, attached.
fatal hit-and-run: 'His blood was all over her car, 'prosecutor says, Pioneer Press, http://www.twincities.comlci_19800755?source=most_viewed (Jan. 23,2012).
News footage from the same press conference exists where Mr. Freeman can be observed speaking about the actions of the Sensers the morning after the crash, including their phone records and other witness statements: "It shows some fairly incriminating phone calls the next morning to a number of entities including a call to her brother, who's a police officer, asking who, hypothetically, you would hire for a DWI." Charges: Joe Senser Told Amy to 'Just Go Home, 'Video, Fox 9 News, http://www.myfoxtwincities. comldpp/news/amy-senser-hit-run-amended-jan-23-2012 (Jan. 23, 2012). Mr. Freeman's
assertion that the discussion involved a "DWI" is untrue; it cannot be found in any police report or witness statement. Furthermore, as described in previous memorandums, police have verified that the Sensers' call to Teen Challenge that morning was to cancel a speaking engagement ofMr. Senser's. ARGUMENT Pertaining to the location of a trial and motions for a change of venue, Minnesota law provides as follows: Except as otherwise provided by rule 24 of the Rules of Criminal Procedure, every criminal cause shall be tried in the county where the offense was committed. The defendant shall be entitled to one change of venue only except in cases involving potential prejudicial publicity in accordance with rule 25.02, subdivision 5, of the Rules of Criminal Procedure. Minn. Stat. § 627.01, subd. 1. Importantly, "the orderingof a change of venue because of unfavorable publicity or prejudice in a community is within the discretion of the trial
court.v See, e.g. State v. Gilbert, 268 N.W.2d 576, 581 (Minn. 1978) (citations omitted); see also State v. Salas, 306 N.W.2d 832,835 (Minn. 1981). Ms. Senser is moving for a change of venue pursuant to both Minnesota Rules of Criminal Procedure 24.03 and 25.02. The following arguments show: (1) in the interests of justice, a fair and impartial trial cannot be held in Hennepin County; and (2) prejudicial publicity creates a reasonable likelihood that a fair trial with an impartial jury cannot be located in this venue.l" I. IN THE INTERESTS OF JUSTICE, A FAIR AND IMPARTIAL TRIAL CANNOT BE HELD IN HENNEPIN COUNTY. Minnesota Rule of Criminal Procedure 24.03 provides one of the rules regarding a change of venue in a criminal proceeding: "The case may be transferred to another county ... ifthe court is satisfied that a fair and impartial trial cannot be had in the county in which the case is pending ... [or] in the interests of justice." Minn. R. Crim. P. 24.03, subd.l. The United States Supreme Court has looked at the totality of the circumstances surrounding a criminal proceeding for indications that the location of a proceeding had violated the "solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob." Murphy v. Florida, 421 U.S. 794, 799 (1975). The United States Supreme Court has further held that, "indicia of impartiality [amongst potential jurors] might be disregarded in a case where
14 The arguments against holding a trial in Hennepin County also apply to Ramsey County and other counties considered as being within the "Twin Cities metro." A county that is further away from the Twin Cities, that is more likely to have independent news sources, such as Kandiyohi County, would be a more appropriate venue for this trial. It is within the discretion of the Court to "decide what county in the state is most likely to afford a fair trial." State v. Thompson, 266 Minn. 385,382 (1963).
the general atmosphere in the community or courtroom is sufficiently inflammatory." Id. at 802. The remedy for combatting a lack of impartiality in a community of potential jurors is simple: "When it appears likely that it is impossible to procure a fair trial before an impartial jury in the county in which the crime was committed, the venue ought to be changed to a county in which an impartial jury can be obtained." Thompson, 266 Minn. 387. Although potential jurors need not be "totally ignorant of the facts and issues involved" in a criminal case, "the constitutional standard of fairness requires that a defendant have a panel of impartial, indifferent jurors." Murphy, 421 U.S. at 799 (quoting
Irvin v. Dowel, 366 U.S. 717,81 S.Ct. 1639, 1642,6 L.Ed.2d 751 (1961)) (internal
quotations omitted). In State v. Blom, following a highly publicized disappearance of a teen girl from a gas station in northern Minnesota, defendant Donald Blom was charged with 1st degree murder. State v. Blom, 682 N.W.2d 578 (Minn. 2004). Blom's first motion for a change of venue was granted, his second was not. Id. at 608. The grounds stated for the first change of venue motion included: [H]ostile public sentiment and opinion about [Blom's] guilt; pressure and influence from the community on potential and actual jurors; intimidating bumper stickers and signs displayed in the parking lot of the courthouse; an incident where a person slowly drove by in a cal' as jurors were entering the courthouse yelling, "hang the bastard" and constant references in the media to things that that been deleted or ruled to be inadmissible. Id. The Supreme Court of Minnesota upheld the trial court's denial for a second change of venue, partially as a result of the granting of the first: "After changing venue from Carlton County to ... Saint Louis County, the district court gave continuing attention and
consideration to Blorri's repeated requests to further change venue ... The court indicated that it shared Blom's concern that he be given a fair trial by impartial jurors." fd. Indeed, the granting of the first motion for a change of venue reflected the district court's warranted concern for a fair trial. In Ms. Senser's case, the interests of justice cannot be served without changing the venue of her trial. The online memes that have been generated to be downloaded and posted on social media profiles are the modem equivalent to the bumper stickers in Blom. Unlike bumper stickers, memes on social media profiles are incredibly accessible, free, and have a wider audience than bumper stickers on cars. Certainly, the potential audience of these memes is of an international scope. Increasingly advancing technology has led to the ease and efficiency of modem communications, but with these benefits comes the risk of an uncontrollable media audience that hints at the question: Can a fair trial in highly publicized cases be held anywhere? The multitude of malicious and defamatory online postings from community members undoubtedly displays hostile public sentiment and opinion surrounding Ms. Senser. The postings hideously depict a "mob mentality" of the community that includes violent references to hanging and killing Ms. Senser, running over and killing members of her family, and even wishing for the death of the defense attorney and his family. Many of the postings discussing Ms. Senser are of a vicious, sexual nature that highlights the offensive and repulsive nature of the public's opinion. Especially shocking to the American criminal justice system is the multitude of
individuals,potentialjurors, who have made premature determinations that Ms. Senser is
guilty before a trial has been administered.
As illustrated by the immense volume and nature of po stings and online commentary regarding Ms. Senser, the general atmosphere of the community is that of partiality. There is an inarguable amount of pressure and undue influence coming from community members and being directed at potential jurors, which rejects all notions of fairness that are a requisite of any criminal proceeding. A fair and impartial trial cannot be held in Hennepin County.
PREJUDICAL PUBLICITY CREATES A REASONABLE LIKLIHOOD THAT A FAIR TRIAL WITH AN IMPARTIAL JURY CANNOT BE LOCATED IN TillS VENUE.
Minnesota Rule of Criminal Procedure 25.02 governs a motion for change of
venue because of prejudicial publicity. Under this procedural rule, a motion for change of venue "may be granted on motion of any party" who can be provide grounds for the motion through "testimony or affidavits from individuals in the community ... or other material having probative value." Minn. R. Crim. P. 25.02, subds. 1-2. Importantly, a motion for "change of venue must be granted whenever potentially prejudicial material creates a reasonable likelihood that a fair trial cannot be had. Actual prejudice need not be shown." Minn. R. Crim. P. 25.02, subd. 3 (emphasis added); See, e.g. Blom, 682 N.W.2d 607 ("A showing of actual prejudice is not required" for a district court to grant a motion for change of venue.); State v. Beier, 263 N.W.2d 622, 626 (Minn. 1978). "Where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should ... transfer it to another county not so permeated with publicity." Sheppard v. Maxwell, 384 U.S. 333, 363 (1966). The United States Supreme Court has, for many decades, stressed the importance of impartial trials that are not tainted by prejudicial pretrial publicity: "[L ]egal trials are
not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper." Id. at 350 (internal citation omitted). "[T]he Court has insisted that no one be punished for a crime without 'a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power. '" Id. (citing Chambers v. State of Florida, 309 U.S. 227, 236-237, 60 S.Ct. 472,477,84 L.Ed. 716 (1940». The
notion that jury verdicts should be reached as a result of the evidence presented at a trial, not the evidence presented by the pretrial media, is amongst the "legal procedures" that are protected by the law from prejudicial pretrial publicity. Id. at 350-51. In State v. Thompson the Supreme Court of Minnesota, in response to a peremptory writ of mandamus, compelled the District Court of Ramsey County to change the venue of that defendant's trial. Thompson, 266 Minn. 385. The defendant in that case was "a prominent citizen of S1. Paul" and there had been publicity consisting of what purported to be "opinions of people who are supposed to know the facts" ofthe upcoming trial. fd. at 380, 388. The Thompson opinion discusses the threshold of when a trial's venue should be changed as a result of prejudicial pretrial publicity: Courts can do little to restrain news media from printing or broadcasting what they claim is news, but, when it appears that the public has been subjected to so much publicity about the case that it seems unlikely that a fair trial can be had in the locality in which the trial normally would be held, the court can and should see to it that the trial is transferred to another locality in which it is more probable that a fair trial can be had.
Id. at 388. In balancing the interests of the media and the criminal justice system, the
Court articulated an important principle that is crucial to a criminal defendant's right to a fair trial:
It is important that the constitutional guaranty of the freedom of the press not be curtailed if we are to exist as a free people. It is equally important, however, that, when the unrestrained exercise of this right clashes with the right of an accused person to be tried by an impartial jury having no preconceived opinions as to the guilt or innocence of the accused, the rights of such accused person must be protected by transferring the case to a locality where the public may not have been influenced as much by the publicity that has been given to the case. Id. Published, quoted statements made by public officials who are affiliated with a criminal case are viewed by Minnesota courts as being particularly dangerous to a defendant's right to a fair trial; the inappropriate presence and subject-matter of these statements is very likely to require a change of venue. State v. Fratzke, 354 N.W.2d 402, 407 (Minn. 1984) (citing Thompson, 266 Minn. 385). Ms. Senser's change of venue motion is partly based upon the conduct of, and repeated statements made by, the Hennepin County Attorney's Office to the media; particularly, assertions concerning evidence against Ms. Senser and other critical aspects of the case.15 The prosecution has made numerous misrepresentations and opinionreflecting statements to the media about Ms. Senser's case. Perhaps most egregious are Mr. Freeman's statements about the phone records of the Sensers and the condition of the Senser vehicle following the accident.
Defendant objects to what it considers to be the prosecutorial misconduct of the Hennepin County Attorney's Office. The Defense recognizes a certain amount of public discourse is needed on high-profile cases; however, repeated statements from the County Attorney's Office about the actual evidence of the case and opinions of the guilt of Ms. Senser are improper. Conduct of the County Attorney's Office both in its interaction with the plaintiff's personal injury attorneys and its office's statements to the media are arguably in violation of Minnesota Rules of Professional Conduct 3.6 (relating to trial publicity) and 3.8 (relating to special responsibilities of a prosecutor). 16
Mr. Freeman has discussed with the media the call the Sensers made to Ms. Senser's brother the morning after the accident. In these statements he claims that the Sensers were seeking a referral for a DWI lawyer - an assertion that is not based on evidence and cannot be found in any police report. Coupled with the State's motion to compel the production of medical records from chemical treatment facilities, the prosecution is subliminally telling potential jurors that there is reason to believe that Ms. Senser was drinking and driving the night of the accident. As has been pointed out many times in earlier motions, Ms. Senser is not charged with a crime that has an element of impairment. The State's constant mention of DWI's and the possibility of Ms. Senser's impairment, which is completely irrelevant to its case, has had a strong effect on the community members that make up the jury pool. In nearly every online discussion forum individuals post comments that reflect their belief that Ms. Senser was drunk on the night of the accident.
statement about a "DWI" referral is not only a
misrepresentation, but is a blatant lie that had the sole purpose of prejudicing the jury pool. Mr. Freeman has also been quoting as saying, "His [the deceased's] blood was all over her car." As visible through the images of Ms. Senser's vehicle that were submitted to the Court along with previous motions made by the State, the Senser vehicle does not have "blood all over" it. Again, these statements have obviously made an impact on the jury pool as evidenced through the memes about a car wash, and online forum postings discussing the "blood splattered on the windshield" and blood being noticeable on other locations on her car. Since images of the Senser vehicle have not been released to the
public, these mental images must have been formulated as a result of the words used by Mr. Freeman in press conferences. The conduct and statements made by the Hennepin County Attorney's Office to the media in regards to Ms. Senser's case have had a prejudicial effect on potential jurors. This prejudicial publicity creates a reasonable likelihood that a fair trial with an impartial jury cannot be located in this venue. CONCLUSION For the foregoing reasons, a fair and impartial trial cannot be held in Hennepin County because prejudicial publicity creates a reasonable likelihood that a fair trial with an impartial jury cannot be located in this venue. Amy Margaret Senser's motion for a change of venue must be granted in the interests of justice.
3It[ '2.__ ~7~7f----
Eric J. Nelson Attorney No. 308808 Attorney for Defendant Amy Margaret Senser Northland Plaza, Suite 1590 3800 American Boulevard West Bloomington, MN 55431 Phone: (612) 333-3673
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