The federal judge assigned to the case against Tucson shooting suspect Jared Lee Loughner is likely to move the trial out of Arizona because the tragedy has profoundly shaken so many potential Arizona jurors, legal experts said Monday.
No motion for a change of venue has been filed, however, and a Justice Department spokesman said prosecutors would resist such a move.
"The department plans to bring the case in Arizona and will oppose any change of venue motions," said the spokesman, Matthew Miller.
U.S. District Judge Larry A. Burns of San Diego was chosen last week to try Loughner after all Arizona-based federal judges recused themselves because of personal ties to U.S. District Judge John M. Roll, one of the six killed and 13 wounded in the Jan. 8 attack.
The choice of Burns by Chief Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals was probably influenced by his court's suitability for hosting the trial, analysts said. Defense attorney Judy Clarke is also based in San Diego, and the 400-mile distance from Tucson would be reasonable for witnesses and government lawyers to travel, experts said.
Clarke didn't return a call asking whether she would petition the court to move the trial.
A federal judge's decision to move the trial of Timothy McVeigh to Denver after the 1995 Oklahoma City bombing serves as a model of "the eminently logical thing to do," said Robert Weisberg, a Stanford University criminal law professor. McVeigh was convicted in 1997 in the bombing that killed 168 people, and was executed four years later.
"There's so much local volatility about this case, and there isn't a good argument against moving it to California," Weisberg said.
Ingrid V. Eagly, who teaches evidence and criminal defense at UCLA School of Law, said "the judge would be engaging in a fact-based analysis, looking at all the different factors in finding a jurisdiction, the No. 1 being where can the defendant obtain a fair and impartial trial."
Defense lawyers can get convictions overturned on appeal if they can show that publicity surrounding their clients' crimes was so inflammatory that jurors were prejudiced. But the Supreme Court ruled in June that intense media coverage of the Enron Corp. scandal didn't automatically bias the Houston jury that convicted former Enron Chief Executive Jeffrey Skilling. That decision has likely encouraged prosecutors to try to keep the Loughner case in Tucson, said Laurie Levenson, a former federal prosecutor now teaching criminal law at Loyola Law School.
"The bar is fairly high to obtain a change of venue or claim prejudice [on appeal] if there hasn't been a change of venue," Levenson said. "That said, this is a pretty extreme case, and I wouldn't be surprised if the trial is moved."