Defense motions unlikely to win

Date: 2006-03-05
Source: sptimes.com

History and legal opinions are stacked against Lori and Tommy Allain, who want their child abuse trial moved and the judge removed.

By MICHAEL KRUSE
Published March 5, 2006

BROOKSVILLE - Moving a trial because of pretrial publicity is an extreme measure meant for an extreme situation. The question leading up to the Allains' long-awaited child abuse trial is whether the court is going to be able to find six jurors and an alternate in Hernando County who say they can be fair and impartial.

Circuit Judge Jack Springstead is scheduled to hear defense motions Thursday asking for a change of venue and for him to disqualify himself because of alleged bias. Both are ultimately his decision. But according to longtime local lawyers, judges and law experts from around the state, the requests are likely to be denied.

"I guarantee you they'll get a jury and won't move the thing," Brooksville lawyer Bill Eppley said last week.

"I would be stunned," lawyer Kirk Campbell said.

A couple things to consider:

1. Lots of pretrial publicity alone is not enough of a reason. Changing a venue for a trial is expensive and logistically difficult, so the standard is high: There has to have been so much news coverage that it becomes impossible to pick six qualified people from a jury pool of hundreds. In the mid 1990s, a serial killer case got a lot of pretrial publicity, too - and Springstead didn't move that trial.

Which brings up . . .

2. Jack Springstead.

His history of moving trials is a short one. He has never done it.

"In any given case, just because they may have heard or read something, that in and of itself is not enough," the judge said Friday morning. "The test is whether they will be able to set aside what they've heard or seen or been told."

Springstead, 56, is a graduate of Hernando High School and a lifelong resident of the county. He was a dogged assistant public defender in the 1980s before getting elected as a county judge in 1988 and then being appointed to a newly created circuit seat a year after that. He has a lengthy track record of making swift, stiff decisions.

"He may lay the wood down on them in sentencing if they're found guilty," Campbell said. "But that's the way he is with any defendant."

Lori Allain, 49, and Arthur "Tommy" Allain, 48, are the local couple who were arrested in June 2004 and accused of starving to 29 pounds the 10-year-old girl in their long-term, nonrelative care. They skipped their trial in late October and went on the run before being caught in New Jersey in January. They are now in the Hernando County Jail waiting for the start of their rescheduled trial a week from Wednesday.

While they were on the lam, in phone interviews with the Times, they said they left in part because they didn't think they could get a fair trial in Hernando.

"I know we can't," Lori Allain said last month in an interview at the jail. "Where are you going to find somebody who doesn't know us in Hernando County?"

But mere knowledge of a case doesn't cut it.

"That's not necessarily the standard," veteran Brooksville lawyer Bruce Snow said. "Because then people would get a free bite at that apple. You'd get to pick your judge and your venue. It doesn't quite work that way."

"Significant news coverage is not by itself sufficient to grant a change of venue," Florida State University law professor Chuck Ehrhardt wrote in an e-mail.

"You've got to show some actual bias and some actual impact on the jury pool," said Charles Rose, a law professor at the Stetson University College of Law in St. Petersburg. He said a change of venue motion is "almost always a defense smoke screen" to buy time.

"Riddle me this, Batman," Rose said. "Look at what was said on the news, and look at what's going to come out in the trial, anyway - and then some. So where's the prejudice to these two individuals? It's not there."

And then there's this: "There are some people who don't watch the nightly news," Circuit Judge Stephen Rushing said last week. "They might watch reruns or something."

"There's a whole bunch of people we get now that don't know jack," Brooksville lawyer Chip Harp said. "They're either watching cartoons or Fox. There are going to be some people who've never heard of it."

Some history:

Scott Peterson, who killed his pregnant wife, got a change of venue in Northern California. Oklahoma City bomber Timothy McVeigh got one. O.J. Simpson did not.

More recently, and more locally, the lawyers for suspected terrorist Sami Al-Arian in Tampa and the man who killed Carlie Brucia in 2004 in Sarasota asked for changes of venue - and were denied.

In Hernando, the last high-profile trial to be moved was the murder trial of Gary Bushell, who was acquitted in 1990 in Sumter County.

The two killers of convenience store clerk Lee Ann Larmon were tried in 1987 in Lake County. They were found guilty of kidnapping, raping and killing the young woman in woods off U.S. 19.

But since then?

The suspects in the racially charged murder of Russell Coats were tried in Brooksville in 1991.

In 1998, Jimmy Dale Smith, the killer of two Hernando High teachers, was tried in the county, too.

Edwin "Mike" Kaprat III, convicted of raping and killing two local elderly women and indicted for three more killings, was tried in Hernando in 1995, although the second trial was heard by a jury from Lake County. The state stopped prosecution after two convictions. Kaprat was sentenced to death - by Springstead.

"Kaprat was tried here," said Karen Nicolai, Hernando's Clerk of the Circuit Court since 1988, "and he was a serial killer."

But in the change of venue motion by Tommy Allain's court-appointed attorney, Elliott Ambrose, Kristen Staab, 23, one of the Allains' two grown daughters who live in Spring Hill, wrote in an affidavit about "snickering, looks, comments and outcasting" around the county.

"There are many reasons why I know and believe that my father, Arthur Tommy Allain, and my mother, Lori Allain, will not have a fair trial in Hernando County," Staab wrote. "The media has made it impossible to find six individuals in Hernando County to be part of a jury."

Tommy Allain wrote in his affidavit attached to the venue motion that Springstead has been "biased," and "hostile," and "has also engaged in a common hand gesture on more than one occasion in open court where he would rub his hand against his forehead in an attitude of open disgust with me and my wife."

"He's already got us guilty before we go in there," he said Friday in an interview at the jail.

The Allains have gotten as much as or more publicity than some of Hernando's murderers of the '90s. A big reason for that, of course, is that they went on the lam and then started calling the Times. But even that is irrelevant.

"It doesn't matter why the potential juror has an opinion on the case," said Peyton Hyslop, a former county judge who's now a lawyer in private practice. "I mean, if the Allains were going door to door, so what?

"I can't imagine he's going to move it," Hyslop said. "But that of course is up to him."

"It's going to be all directed by Springstead," Lori Allain said Friday at the jail. "You can't tell me he's going to be on the up and up. He's dirty, he's dirty, he's dirty."

"We're going to be convicted in this county," Tommy Allain said. "That's all there is to it. You know it. I know it.

"I hope and pray there's six people. But I honestly don't think there is. I hope and pray there are six honest people in this county who can see the truth and see the light."

Times researcher Carolyn Edds contributed to this report. Michael Kruse can be reached at mkruse@sptimes.com or 352 848-1434.

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