Kozak Change of Venue



There is document - Kozak Change of Venue available here for reading and downloading. Use the download button below or simple online reader.
The file extension - PDF and ranks to the Court Filings category.


310

views

on

Extension: PDF

Category:

Court Filings

Pages: 199

Download: 326



Sharing files


Tags
Related

Comments
Log in to leave a message!

Description
Download Kozak Change of Venue
Transcripts
  IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY STATE OF IOWA, ) Plaintiff, ) FECR108817 ) vs ) MOTION FOR ) CHANGE OF VENUE ) ALEXANDER KOZAK, ) Defendant ) COMES NOW Alexander Kozak, through counsel, pursuant to the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; Article I, Sections 9 and 10 of the Iowa Constitution; Iowa Code Section 8032(2); and Iowa Rule of Criminal Procedure 211(10), and states the following to the Court: 1 The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law ” US C ONST amend VI The United States Supreme Court has further stated that “[t]he failure to accord an accused a fair hearing violates even the minimal standards of due process,” as guaranteed  by the Fifth and Fourteenth Amendments to the United States Constitution  Irvin v  Dowd  , 366 US 717, 722 (1961) 2 These federal constitutional rights are similarly guaranteed by the Constitution of the State of Iowa, Article I, Sections 9 and 10 I OWA C ONST Art I, §§ 9, 10 3 Pursuant to Iowa Code section 8032(2), “The court may on its own motion or on the motion of any of the parties to the proceeding reconsider and grant a pretrial motion E-FILED 2015 AUG 11 1:27 PM JOHNSON - CLERK OF DISTRICT COURT  2 for change of venue whenever it appears during jury selection that sufficient grounds exist for granting the motion under the provisions of rule of criminal procedure 211” I OWA C ODE § 8032(2) (2014) “If the court is satisfied from a motion for a change of venue and the evidence introduced in support of the motion that such degree of prejudice exists in the county in which the trial is to be held that there is a substantial likelihood a fair and impartial trial cannot be preserved with a jury selected from that county,” the court must transfer the action to a county where this condition does not exist I OWA R   C RIM P 211(10)(b) 4 The defendant, Alexander Kozak, is charged by Trial Information with the crime of Murder in the First Degree in violation of sections 7071 and 7072(1)(A) of the Iowa Criminal Code 5 Pretrial publicity can result in the defendant’s inability to receive a fair trial and/or to impanel an impartial jury in the venue in which the alleged crime took place As the Iowa Supreme Court has recognized, “where there has been extensive pretrial  publicity a trial court should be more willing than in prior years to look favorably upon such a motion” State v Robinson , 389 NW2d 401, 404 (Iowa 1986) (granting new trial  because the trial judge had failed to grant defendant’s motion for change of venue) 6 Prejudice resulting from pretrial publicity warrants a change of venue when the defendant is able to show: “(1) publicity attending the trial that is so pervasive and inflammatory that prejudice must be presumed, or (2) actual prejudice on the part of the  jury” State v Siemer  , 454 NW2d 857, 860 (Iowa 1990) 7 “To sustain a claim of presumptive prejudice, the defendant must prove that the  publicity attending the case was ‘pervasive and inflammatory’”  Id  (quoting State v E-FILED 2015 AUG 11 1:27 PM JOHNSON - CLERK OF DISTRICT COURT  3  Harris , 436 NW2d 364, 367 (Iowa 1989)) In determining whether publicity meets this standard, a court may consider the following: a   Whether the media accounts “indicate the defendant is guilty of the charges against him” State v Walters , 426 NW2d 136, 139 (Iowa 1988) (citing State v Spargo , 364 NW2d 203, 207 (Iowa 1985))  b   “[W]hether enough time has passed between publication of the material and the trial date so as to dissipate any prejudicial effect that may have been initially created by adverse publicity” Walters , 426 NW2d at 139   (citing Spargo , 264 NW2d at 208) c   “[W]hether there were any editorial denunciations of the defendant or emotional stories regarding the defendant or the victim”  Walters , 426 NW2d at 139 (citing State v Johnson , 318 NW2d 417, 422 (Iowa 1982)) d   Whether the county was “a sparsely populated rural one saturated with news accounts of the crime” State v Robinson , 389 NW2d 401, 403 (Iowa 1986) 8 Applying this law to the situation at hand, Mr Kozak respectfully submits that there has been pervasive media coverage and extensive publicity surrounding this case such that there is a “substantial likelihood” that Mr Kozak cannot receive a fair trial in Johnson County I OWA R   C RIM P 211(10)(b) 9 Local newspaper articles, websites, and television news coverage have saturated the community with information about this case ever since the alleged incident took place at the Coral Ridge Mall on Friday, June 12, 2015 Examples include, but are not limited to, the following: E-FILED 2015 AUG 11 1:27 PM JOHNSON - CLERK OF DISTRICT COURT