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4/2/2019 4:24 PM

17CR34550

3 IN THE CIRCUIT COURT OF THE STATE OF OREGON

4 FOR MULTNOMAH COUNTY

6 THE STATE OF OREGON, )


) No. 17-CR-34550
7 Plaintiff, ) DA 2361727-1
)
8 v. ) STATE'S MEMORANDUM IN
) OPPOSITION TO DEFENDANT'S
9 ) MOTION FOR ORDER CHANGING
JEREMY JOSEPH CHRISTIAN ) PLACE OF TRIAL TO ANOTHER
10 ) COUNTY
)
II Defendant. )

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The State of Oregon, through Donald N. Rees, Chief Deputy District Attorney, and Jeffrey
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Howes, First Assistant to the District Attorney, hereby submits the following memorandum for the
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15 Court's review.

16 Defendant has asserted, but failed to prove that he cannot receive a fair and impartial trial

17 due to pre-trial publicity. The Court may order a trial moved to a different county when "there is so
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great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial."
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ORS 131.355. The Court may also change venue "in the interest of justice." ORS 131.363. The
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mere fact of adverse publicity surrounding a high profile criminal case, however, is not enough to
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demonstrate prejudice or the "interest of justice." State v. Sparks, 336 Or 298 (2004). In Sparks,

23 defendant was charged with raping and killing a 12 year old girl in Yamhill County. News

24 coverage included details of the defendant's personal and criminal history and the impact of the
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gruesome crime on a small community. Nevertheless, the Oregon Supreme Court upheld the trial
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28 Multnomah County District Attorney's Office, Pottland, OR 97204- (503) 988-3162


court's finding that the jury selection process 'would provide a sufficient safeguard to ensure the

2 defendant would receive a fair and impartial trial." Sparks at 305.


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Adverse pre-trial publicity is of course, quite common in certain criminal cases, but it only
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rarely rises to the level where a court finds a defendant cannot receive a fair trial in a particular
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county. It is almost presumed that potential jurors may have some knowledge of a high profile
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case. The question is whether such individuals can maintain impartiality.

8 When media coverage is exhaustive, relentless, close in time to the trial of the accused and

9 pointedly asserts guilt it may render a community incapable of impartiality. More than a half
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century ago, an accused mass murderer in Indiana was deprived the right of an impartial jury where
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extraordinary media coverage caused more than half of the jury pool to be excused for cause
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because they had fixed opinions about the guilt of the defendant. Irvin v. Dowd, 366 US 717 (1961)
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cited by State v. Fanus, 336 Or 63 (2003). Eight of twelve of the impaneled jurors in Irvin stated
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15 they believed the defendant was guilty but affirmed impartiality notwithstanding such opinions. The

16 Court noted that defendant's case had caused "great excitement and indignation" in the community

17 and that coverage of the case included a "roving reporter" who asked townspeople their opinion of
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the appropriate sentence before the trial had even commenced. The result, the U.S. Supreme Court
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concluded, was a pattern of "deep and bitter prejudice" against the defendant. See Irvin at 725-728.
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In Fanus, the defendant presented over 40 news articles about his Douglas County
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aggravated murder case, a poll showing that more county residents thought he was guilty than
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23 residents polled in Multnomah County and testimony from an expert who testified a fair trial in

24 Douglas County was unlikely. Nonetheless, on review, the Oregon Supreme Court distinguished

25 Fanus from Irvin finding a lack of "deep and bitter prejudice" within the community despite
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widespread publicity, shock and sorrow. Three factors identified in Fanus for the court's
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28 Multnomah County District Attorney's Office, Portland, OR 97204- (503) 988-3162


consideration in weighing a defendant's motion for change of venue are: 1). The character and

2 extent of pretrial publicity; 2). The degree of difficulty in securing impartial jurors; and 3). any _
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other factor that might indicate prejudice against the defendant. Fanus at 79.
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In this case, defendant has clearly demonstrated widespread media interest and coverage.
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But there's nothing particularly unusual about the coverage. There's been no showing by the
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defendant, other than speculation, that potential jurors have been rendered impartial. The defendant

8 has not offered any information regarding the views of potential jurors in the Multnomah County

9 regarding this case. As a result, the Court is left only to guess what prospective jurors may think
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about the allegations against Jeremy Christian and the impact of any media coverage.
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A cautious approach regarding the defense motion is to proceed with voir dire and then
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determine based on the responses of the prospective jurors whether "so great a prejudice (exists)
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that the defendant cannot obtain a fair and impartial trial." In the absence of a "deep and bitter"
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15 prejudice against the defendant the motion to the move the trial to another county should be denied.

16 CONCLUSION

17 The State respectfully requests the Court deny defendant's request for an order changing place
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of trial to another county. rJO
19 Respectfully submitted this ~ day of April, 2019.
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ROD UNDERHILL
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A. Howes, OSB# 953047
26 First Assistant to the District Attorney
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28 Multnomah County District Attoi·ney's Office, Portland, OR 97204- (503) 988-3162


CERTIFICATE OF SERVICE

I hereby certify that I served the within STATE'S MEMORANDUM IN OPPOSITION TO

DEFENDANT'S MOTION FOR ORDER CHANGING PLACE OF TRIAL TO ANOTHER

COUNTY on April2, 2019, by transmitting electronically a certified true copy thereof, certified by

me as such, by way of email, addressed to:

GREG SCHOLL
ATTORNEY AT LAW
630 SW 5th Ave., Suite 500
Portland, OR 97204
503-225-9100

DEAN SMITH
ATTORNEY ATLAW
630 SW 5th Ave., Suite 500
Portland, OR 97204
503-225-9100