It’s an unusual move, but a great idea. Athens Georgia criminal defense attorney Ed Tolley is trying to get the judge to allow him to question grand jurors before they consider a murder indictment against his client. The Athens Banner Herald has the story. The case is pending in Oconee County, part of the same judicial circuit as Athens.
According to the Athens article, the defense lawyer wants to determine the effect of pretrial publicity on the grand jurors before they decide whether to indict his client for murder. The lawyer also wants the judge to put a “gag order” on the parties to prevent any additional publicity before the case goes to trial.
Generally, a judge won’t consider the effect of pretrial publicity until the jury is being selected right before the case is tried. If it appears that a lot of the potential jurors have heard about the case and made up their minds, then the judge may consider a change in venue or other remedy. The judge usually doesn’t care if the potential juror has heard about the case, only if the juror can still be “impartial” despite what he has seen or heard.
Of course, most judges are reluctant to change venue and start over at that point. That usually means pretrial publicity won’t help you get a criminal trial moved to another county. Only the really big “high-profile” criminal cases get moved before trial. A trial doesn’t get moved to another court just because the newspaper runs a couple of articles, or the local tv news gives the case 30 seconds of coverage. It takes a whole lot more.
The hearing is set for Tuesday, March 18. If the judge lets the defense attorney question the grand jurors, it may set a precedent in Georgia for screening grand jurors prior to indictment. That would be a big change from the “rubber stamp” the grand jury usually gives prosecutors. I bet many other lawyers would like to use this approach for other cases that get covered in the news before trial. I know I certainly would.