By Russ McQuaid
INDIANAPOLIS (July 29, 2014) - At the close of the morning session of Mark Leonard’s change of venue hearing, Judge Sheila Carlisle turned down a motion by prosecutors to end attempts by defense attorneys to quiz more potential test jurors as to whether he could receive a fair trial in Marion County.
The judge, however, indicated she would be willing to reconsider such a motion at the end of the day.
Deputy Prosecutor Denise Robinson asked the Court to cut off the test jury inquiry by arguing, "While the state believes (Leonard) has constitutional rights...there is no more burden to go further (with jury questioning). We have a jury."
Of the 20 potential test jurors questioned, Robinson noted that 12 were selected with six more under advisement.
"While the defendant may have shown pretrial publicity," said Robinson, "the standard is to show prejudicial publicity and that cannot be met."
Lead public defender Deana Martin got to her feet, standing alongside her client at the defense table.
"There will be other issues and we will need additional jurors," she said. "The presumption of whether it should stay here can be overcome by showing prejudice in the community."
Martin argued that 26 of the 125 potential test jurors called for duty last week were dismissed before being questioned in court and those dismissals show a "general atmosphere of prejudice in the community" and that the court should not base its change of venue decision regarding media coverage saturation on "the first twelve."
The hearing covered both the excessive media coverage of the Richmond Hill case and the lack of interest or knowledge of the general community and distrust of press accounts.
Lead Richmond Hill defendant Mark Leonard entered the courtroom in a blue shirt, a necktie around his neck but not tucked into his collar. Defense attorney Deana Martin put the finishing touches on her client's attire before the first prospective test jurors took seats in the jury box.
Leonard is seeking a change of venue in his arson and murder trial stemming from the Nov. 10, 2012, blast that leveled his girlfriend's house, killed two neighbors and damaged dozens of homes in the Richmond Hill community on the city's south side.
Extensive media coverage is cited in Leonard's request to move the trial out of Marion County. The hearing in Criminal Court 3 is akin to taking the temperature of the community when it comes to determining if a trial jury could someday hear the case free of preconceived notions and bias based on what they're seen on television, read in the newspaper or talked about with their neighbors and coworkers and family.
More than 120 potential test jurors filled out questionnaires regarding their knowledge of the case last week. Of those, 26 were dismissed Monday based on their survey answers.
The first 19 prospective change of venue jurors were shown into the courtroom for questioning by the defense, the prosecution and the judge.
"You have been called as prospective or possible jurors in the state of Indiana versus Mark Leonard," Judge Carlisle told the first test panel. "We can't do this without you. The right to a trial by a jury of one's peers is fundamental to our process.”
She continued, "You have been called as a test jury for this case. The court has certain legal issues I have to make decisions on before I decide where this case will be heard."
This change of venue hearing is unique in that such motions are typically debated between attorneys and taken under advisement of the judge who then decides if the case must be moved.
In 2008, the case of a man accused of shooting Indianapolis Metropolitan police officer Jason Fishburn was moved to Valparaiso due to extensive media coverage.
Brian Reese was found guilty.
In 2013 David Bisard, an IMPD officer accused in the DUI death of a motorcyclist, was found guilty after his case was moved to Fort Wayne due to concerns over pretrial publicity.
"Bisard was pretty easy," observed Ralph Staples, a defense attorney who is not participating in the Richmond Hill case. "One defendant, one issue."
Staples said Carlisle may be taking the extraordinary step of convening the change of venue test jury pool to not only protect Leonard's right to a fair trial but also prove to an appellate court that she took all precautions to determine the potential biases of any prospective jury pool.
"Judge Carlisle will be able to say pretty clearly what she has done and what her order is going to be to avoid that type of challenge later on down the road."
Defense attorney Diane Black led off the questioning of the first seven potential test jurors.
"How many of you have done a test jury before?" she asked. "Me neither."
After advising the panel of the high media interest in the explosion and the case, Black asked, "Would you be concerned about the impact of a not guilty verdict on the community?"
The prospective change of venue jurors said they would not be concerned.
One potential juror said that when she heard of the explosion and the impact on the Richmond Hill neighbors, she was disappointed in what she perceived to be the selfishness of the alleged act.
"Criminal or not, people were affected," she said.
When Black asked if the juror understood her client's right to a fair trial rested on a jury's lack of knowledge about the case details or a juror's emotions regarding the tragedy, Robinson objected and Carlisle cut off that line of inquiry.
"Since this is unique to all of us I'm not sure how to proceed here," Robinson said at one point.
One key piece of evidence in the case against Leonard, his half-brother Bob and his girlfriend Monserrate Shirley was the allegation that Shirley boarded her cat with a groomer the weekend the house on Fieldfare Way exploded.
Juror 2 answered that at first she found that suspicious when details of the investigation were revealed.
"I don't know that he deliberately set it," said the woman said in response to a question from Leonard's attorney. "I know that three people were accused. I assume somebody deliberately set it but I don't know who set it. I think that there are a lot of people arrested for things that they didn't do."
Black asked the potential juror if she could set aside press accounts of the blast investigation.
"I think the media is wrong a lot, to be perfectly honest," the woman answered. "I think they report things too quickly. They want a reaction. I'm not sure I would believe what the media has said."
The third potential juror indicated that she was aware of the alleged insurance fraud motive in the case and that media reports indicated that the explosion was intentional.
"Until it’s proven that it actually happened, the media can always be wrong," she said. "There's a part of me that will always wonder if it was truly set by this individual."
Juror 8 said that he had no knowledge or whether the fatal explosion and fire was a criminal act or of Leonard's criminal history or reputation.
Leonard's history includes allegations of previous insurance fraud investigations and a current charge of plotting to kill a key witness in the Richmond Hill case from inside the Marion County Jail.
Women who have dated Leonard in the past told FOX59 that he was a "con man" who swindled them out of thousands of dollars to finance weekend gambling trips to Indiana casinos and short-term loans to cover costs of supposed home remodeling projects.
Juror 24 said she knew that "a teacher died" in the explosion.
Neighbors Jennifer and Dion Longworth were killed in the blast.
In response to questions from one of Leonard's attorneys, the potential test juror told the court she was aware that the defendant "got money" from some of the women that he dated and "tried to contact someone outside being incarcerated."
She said that knowledge might impact her deliberations.
"Is there any sense of I have to do the right thing for the community?" defense attorney Deana Martin asked the second panel, seeking to eliminate any potential jurors who would feel a societal bias to reach a guilty verdict despite the evidence. "Would that impact your verdict or decision making?"
"I believe that they did it," said Juror 4 whose job took her into the Richmond Hill community to work with a resident whose home was damaged in the blast. "From what I heard in the news made you believe that."
The woman said she could still render a fair verdict despite the conclusions she drew from watching media coverage.
Martin again tackled head on the allegation that Shirley and Leonard boarded the family cat before leaving for a two-day trip to the Hollywood Casino in Lawrenceburg on the day before the explosion.
"Any conversations like, 'Can you believe this would happen or who would drop off a cat?'" she asked, inquiring about Juror 11's conversations with co-workers.
"That seemed like an odd incident for such a short trip away," the man answered. The potential juror displayed substantial knowledge of the tragedy and the insurance fraud motive. He said he could set aside those perceptions and base any decision on courtroom evidence and testimony.
Deputy prosecutor Mark Hollingsworth asked the man if he understood that sometimes media accounts of incidents are not totally accurate.
"I slept right through it," said Juror 13. "I don’t really follow any news."
Juror 14 indicated that he didn't pay much attention to media accounts of the case but could foresee community pressure to reach a guilty verdict though. "You've got to be fair," he said.
Taking his turn to question the potential juror, Hollingsworth agreed with the man's pledge.
"As he sits here right now," said the prosecutor, pointing to Leonard sitting at the defense table, "he is innocent until proven guilty."
Juror 15, a south side resident, indicated he could be fair and base his decision only on trial evidence.
"The facts would speak for themselves," said Juror 16, who described herself as an avid news consumer. "Media always overexaggerates things anyways."
"It’s a shame what people do for money," said Juror 18 who led off the third panel of prospective jurors.
The man said he was a regular TV news watcher and seemed to waver on his presumed impartiality in finding Leonard's guilt or innocence though he eventually came down on the side of basing his verdict on trial evidence.
Jack Crawford, a longtime defense attorney and former Lake County prosecutor who sat in on part of the morning session, told FOX59 News that he believes most observers have made up their minds regarding Leonard's guilt but would give the "politically correct answer" of waiting to hear all the evidence before voting if they were chosen for the trial jury.
The purpose of this hearing is merely to determine the impact of media coverage on potential jurors, not actually seat a jury for the first of three defendant trials expected to begin in 2015.
A man who told defense attorney Ray Casanova that he was at military boot camp during the time of the tragedy said he learned from media accounts and the jury questionnaire that insurance fraud was the motive for the arson and explosion, and it was an allegation he would not easily set aside.
The potential test juror said the perception might lead him to be biased against Leonard though he understood the responsibility of any jury to base its decision on evidence.
"Fair enough," answered Robinson.
"This is my city and I don’t have a tolerance for things like this," said one woman who admitted using a derogatory term to describe the suspects in her jury questionnaire. "I don't think I was being led by the media. I was being led by the discoveries. Forensically there are things that can't be ignored."
Juror 20 said she could put those opinions aside if she were chosen for a trial jury but doubted if others in her situation could.
Casanova asked Juror 21 if he could separate knowledge of the case from "the media offering an opinion that whoever did this committed a crime."
The potential juror, in response to a question from the state, said he believed the media's job was not to "prove something beyond a reasonable doubt" but rather to report the news.
Juror 25 said after the blast he asked himself, "Why would somebody possibly do this?" and came to the conclusion that insurance fraud was the motive.
"I'd like to say I would be impartial, but the knowledge that I have, I would have to catch myself," he said when asked if he could set aside his pre-conceived opinions about the charges against Leonard.
The man was the final potential juror to be quizzed during the morning session.
Carlisle has set aside all week to conduct the voir dire of prospective jurors and also hear arguments and motions regarding the attempt to move the case to another city outside of central Indiana.
Despite a response that prosecutors indicate lead Richmond Hill suspect Mark Leonard could get a fair trial in Marion County, Superior Judge Shelia Carlisle has ordered a change of venue test jury process continue for at least one more day.
38 prospective test jurors were questioned by prosecutors and defense attorneys Tuesday during Leonard’s change of venue hearing.
At the end of the day both sides agreed 24 would have made the cut if they were called for Leonard’s actual trial jury pool.
The defense is arguing that latent community wide bias against Leonard means their client cannot get a fair hearing in Indianapolis due to extensive pre-trial publicity.
“There is a general perception of prejudice in the community,” said Public Defender Deana Martin who cited the rejection of 26 potential test jurors before questioning and another 14 during the hearing as evidence of the judicial deck stacked against Leonard.
Deputy Prosecutor Denise Robinson moved that the State and the Court have accommodated the defense’s motion for a change of venue and Leonard’s attorneys failed in their arguments.
“The defense burden cannot be met,” she said. “The constitutional protections have been met.”
Judge Carlisle quizzed Martin on the defense team’s attempt to compile a statistical analysis to bolster it position and remarked that, “The Court has gone above and beyond,” its obligation to provide Leonard a venue in which he could make his case that it would be impossible to find a non-biased jury in Marion County.
After considering case law, the Court overruled the prosecution’s motion for a second time and ordered both sides to return for another day of mock jury selection Wednesday.