A. A fair trial cannot begin in Las Vegas on October 10
Despite the passage of four days, the tragedy of October 1, 2017 remains on the forefront of every local resident’s mind. Coverage of the mass shooting dominates the local news, with every hour bringing new stories about the investigation and the shooter, profiles of his victims, and of the heroes who saved lives.1 Local residents are still shocked, traumatized, and upset.
The same is true of the Las Vegas Sun, where 9 of the 10 most popular stories this morning concerned the shooting. See also “The frantic bloody hours at Sunrise Hospital as Guns have become a focus of community outrage, with many residents condemning the availability of firearms such as those that were obtained (apparently legally) by the shooter, and demanding changes to gun laws.2 The President came to town yesterday, praising the first responders in a speech with Sheriff Joe Lombardo – the government’s first witness in the last trial — right next to him. Funerals, memorial services, marches, rallies, and fundraisers will take place throughout the weekend and next week.
Payne cannot receive a fair trial or an impartial jury in Las Vegas next Tuesday. It should go without saying that Payne had nothing whatsoever to do with the October 1 shooting. However, there is no potential juror in this community who will be able to set aside the images of October 1 when asked to consider the evidence in this case. Guns are central to this case. The government will repeatedly show the jury pictures of guns, present testimony about guns, and present statements from the defendants discussing guns. In particular, the government will repeatedly show the jury pictures of men, high above a crowd, pointing rifles in the direction of others. The government’s whole case is based upon an allegation that Payne and the other defendants were responsible for a threat of mass violence. Payne very much disputes this, but in the current environment, this dispute cannot be fairly and impartially decided by a jury drawn from the local community.
Concerns over impartiality in a criminal trial usually involve publicity directly arising from outrage over the alleged crime. In those situations, however, there is at least distance of months or (as here) years between the alleged crime and the trial. See e.g. Skilling v. United States, 561 U.S. 358, 383 (2010) (noting lack of prejudice when trial happened four years after crime, and distinguishing Rideau v. State of Louisiana, 373 U.S. 723 at 724 (1963), where trial happened two months after crime, as a case “in which trial swiftly followed a widely reported crime.”) In today’s criminal justice system, a trial would never take place one week after a horrifying crime that traumatized an entire community. But that’s essentially the problem here. This is an extraordinary circumstance and it requires a remedy.
Payne’s original motion asked for a continuance of at least 2 months. When this request was addressed at the last hearing, the Court suggested the other parties should have an opportunity to weigh in before Friday’s hearing. Many of the defendants in this trial have been locked up for a very long time and have struggled with both the indignities of their incarceration and uncertainty about their trial date. In the interests of securing a consensus amongst all parties in advance of the Friday hearing, and because a short continuance would be better than no continuance, Payne suggested a new trial date of October 30, 2017 in an addendum filed on Tuesday. If a new trial date cannot be agreed upon by consensus amongst the parties, however, Payne’s counsel will seek a continuance for whatever period is necessary to secure their client’s right to a fair trial by an impartial jury.
B. In the alternative, trial should be moved to the Reno courthouse
The United States District Court for the District of Nevada has two major courthouses. The courthouse in Reno, Nevada, is 450 miles away from Las Vegas. The Reno courthouse is as well-equipped to host a large trial as the Las Vegas courthouse. Because the courthouses are within the same judicial district, the trial could be held there by order of this Court without creating any jurisdictional or venue issues regarding the presiding judge or prosecutors. The “Northern” and “Southern” divisions, over which the Reno and Las Vegas courthouses usually preside, are the “unofficial” product of Local Rule 6-1. The Court has the complete discretion to move the trial from one division to the other. Local Rule 8-1(c).
A Reno trial would allow a jury to be drawn from a community on the other side of the state that has not been as directly affected by the October 1 tragedy. Obviously, the shooting is national news and has affected people across the country, but in Reno, the jury pool will not include an overwhelming number of persons who personally know victims or survivors, or who had to spend a night worrying about their loved ones, or who had loved ones worrying about them – and whom, for all those reasons, will find it impossible to put the events of October 1 out of their memory any time in the near future.
C. In the alternative, Payne asks to be severed from any defendants proceeding to trial on October 10
The Court has an independent duty to ensure that all defendants have a fair trial by an impartial jury. Even if some defendant or defendants should insist upon prioritizing expediency and going to trial next week, the Court cannot allow that defendant’s waiver of his right to an impartial jury to trump Payne’s rights.
In the event all parties do not consent to a continuance, and in the event the Court will not grant a continuance without unanimous consent, Payne asks that he be severed from any defendants who will be going to trial. There is nothing sacred about the current grouping of defendants in Payne’s tier: it was initially set per the government’s preference, and was already altered a month ago to accommodate the desires of defendants in another tier to have a speedy trial. There is no reason why the tier cannot be altered again to balance the interests of justice and accommodate Payne’s interest in a fair trial.
CONCLUSION
Payne asks that his trial currently set for October 10, 2017 be continued, or for other relief as set forth in this Motion.
