In the latest installment of our occasional conversations with Fort Worth leaders, Benson Varghese, a defense attorney, discusses change-of-venue motions. Attorneys defending former Fort Worth Police Officer Aaron Dean recently filed a change-of-venue motion. Dean faces a charge of murder for fatally shooting Black resident Atatiana Jefferson through the window of her home in October 2019. Varghese is a board certified criminal defense lawyer at the law firm of Varghese and Summersett. He is also the outgoing president of the Tarrant County Criminal Defense Lawyers Association, but he does not represent Dean and has not worked on this case.
This conversation has been edited for length and clarity. For the unabridged version, please listen to the audio attached to this article.
Jessica Priest: What is a change-of-venue motion?
Benson Varghese: A change of venue is a request to the court to move a trial or a case out of the jurisdiction that it’s in to some other place.
Priest: What does an attorney have to prove in order to get a judge to grant that type of motion?
Varghese: It depends on who is making the request. If you’re a prosecutor, you have to say either “a trial in this jurisdiction favors the defense too much that we can’t have a fair trial, or someone is going to be put in danger if we have the trial here.” That could be a witness or in theory it could even be the defendant.
A defense attorney has two ways to get a motion for transfer in front of a judge. The first way would be to simply say, “There’s so much prejudice in this location that my client cannot get a fair and impartial trial.” The other way, which I’ve never seen done, is to say, “There is a degree of influence from specific individuals in this location.”They don’t have to be politicians, but that’s kind of what comes to mind. There’s just some degree of influence that’s going to carry over into this trial.
The defense doesn’t get to argue that it would be unsafe for their client or one of their witnesses. Only the state gets to argue that. If you’re the defense, you have a more limited right to ask for a transfer of venue.
Priest: When I’ve heard of change-of-venue motions being asked for by the defense, one of the things they talk about is pretrial coverage. Is that common?
Varghese: When I’ve seen defense motions for a transfer of venue, I’ve only seen them argue that there’s so much prejudice in this location that we can’t get a fair trial. The No. 1 factor that goes into that certainly these days is pre-trial publicity, not only from the publicity that may have come from the media, but nowadays there are comments and reactions you can see from the general public.
Priest: Does a defense attorney just collect all the news articles and comments and bring that to a judge?
Varghese: Again, there’s a little bit of a difference between what’s expected of a prosecutor and what’s expected of a defense attorney. If a defense attorney makes the motion, he or she is required to file at least two supporting affidavits from credible residents. You’ve got to get someone who lives in the location to say, “Based on what I have seen or heard, I believe this defendant cannot get a fair trial.”
Now, if you’re the state making the request, you don’t have to support it with an affidavit. And certainly the defense attorney can use any other supporting materials that they have.
Priest: Is this type of motion common? Do you know how often they are granted?
Varghese: Generally, it’s not a common motion. The exception is when a case receives a lot of media attention. You almost expect the motion to be filed, particularly if you’re seeing a lot of public response to the attention that it’s getting as well.
I don’t have statistics on how often they’re filed. I would say, just having practiced in this area for over a decade, that they’re rarely granted. And I would say as a defense attorney, if I were filing a motion, I would certainly try to put in everything I could to support my position and put on as much evidence as I can to convince the judge that a fair trial can’t be had in this location or jurisdiction.
Most judges want to think, “As long as I’m presiding over this, I’m going to make sure it’s fair.” It’s not an attack on the judge. But it’s saying, “Judge, even as fair as you are, this is simply too big of a problem for us to continue in this jurisdiction.” That’s a big ask of a judge.
Priest: If a motion to change venue is granted, who decides or how is it decided where the trial will ultimately be held?
Varghese: It will be up to the judge. But the statute places some general limitations on where the case could go. The statute says you can transfer the case to another county within our judicial district.
We have administrative judicial districts in Texas. We’re in Region 8. You could go to any other county within that region or you can go to an adjoining region.
Now, Administrative Region 8 is massive. It goes all the way from the Texas border at the top and then to the east. We’re on the east edge here in Tarrant County of this district. It goes a little bit farther south to Johnson all the way to Eastland and then back up more. So our district alone is pretty big when you start including our adjoining districts.
The statute also gives the judge the ability to go to that different jurisdiction, so the case doesn’t have to go to a different judge. It could be the judge and everyone else involved just goes to this different county because ultimately what you’re trying to get is a different set of jurors. If the case were moved to Wise County, for example, well, then you’d get the Wise County jury pool. Everyone else would potentially remain the same.
Priest: Oh, that’s interesting. One of the reasons I am asking about change-of-venue motions is because of a case involving a former Fort Worth police officer charged in the death of Atatiana Jefferson. One of the concerns I’ve heard is that if we move this to another county, it could cause further delays, but what you’re saying is that perhaps the judge would remain the same?
Varghese: The statute leaves that as a possibility. Although there will be some logistical difficulties, I think, and I can’t speak for the court. I’d imagine the court would do everything not to allow the transfer to create a delay.
Priest: And the county it moves to does not have to be demographically similar to Tarrant County?
Varghese: Nope, that’s not one of the requirements in the statute. It’s not addressed at all.
Priest: Could a change of venue change the outcome of a case like this in your opinion?
Varghese: The reason we have this statute is to prevent almost the opposite. What you want a jury to do is say, “I’m going to listen to the evidence in the courtroom and render a verdict just based on what I’ve heard in the courtroom and not based on outside influences.” Outside influences could be I read something; I saw something on TV; a friend or family member saw something and have talked to me about this, and now I have feelings.
In the Atatiana Jefferson case, we’ve had more than that. We’ve had parades. We’ve had a large gathering of people who have some very strong feelings. Take any other run-of-the-mill case that’s handled in the courthouse on any given day and, obviously, we don’t see that.
Priest: If you were retained in this case or representing an officer charged in a similar death, what would you say to a prosecutor or someone who argues that there is no place where someone doesn’t have an opinion about deaths caused by police or in police custody given what’s going on in our country? I feel like since the death of George Floyd, this has been on everyone’s mind.
Varghese: The issue is something that has certainly resonated at a national level. There’s not going to be some perfect jurisdiction where everyone is going to walk into the courtroom, and that’s the only evidence to hear. These are issues that are on people’s mind for a reason.
The distinction is how acute is the problem. To a prosecutor in a particular jurisdiction where a shooting took place, if I had concerns about the media attention that it had drawn, and maybe more so the public sentiment that had already formed around what people believe to be the facts, is, outside of this jurisdiction, there’s at least a chance that people will be more open minded to listen to what the facts are.
The reality is, as much as we all try to pay attention to what’s on the news, we’re much more attuned to what’s happening locally. We’re more likely to form opinions and perhaps make up our mind even before we walk into a courtroom when something has happened in our backyard.
If we’re looking at something that’s happened in another jurisdiction, we probably don’t know enough about the presumed or actual facts to have formed that sort of a concrete opinion.
That’s kind of why I would want to move a case under these types of circumstances to a jurisdiction where it’s not a, “This just happened in my backyard. I’ve been following it every day. Fifty of my friends have commented on social media about this.” it’s just different when you’re even one or two counties removed.
Editor’s note: This story was changed on Dec. 20, 2021 to clarify that when a judge grants a change of venue motion, the judge can decide to hold the trial in any county within the assigned administrative judicial region or in an adjoining region.
Jessica Priest is an investigative journalist for the Fort Worth Report. Contact her at jessica.priest@fortworthreport.org or via Twitter. At the Fort Worth Report, news decisions are made independently of our board members and financial supporters. Read more about our editorial independence policy here.