Opinion
CUMCD-CR-21-2807
12-08-2022
STATE OF MAINE v. VINAL THOMPSON, Defendant
Bruce M. Merrill - #7623 Attorney for the Defendant, Vinal Thompson
Bruce M. Merrill - #7623 Attorney for the Defendant, Vinal Thompson
MOTION FOR CHANGE OF VENUE WITH MEMORANDUM OF LAW
COMES NOW Vinal Thompson, by and through undersigned counsel, and hereby moves, pursuant to Rule 21, Me.R.Crim.P., for a change of venue in the above-captioned matter, for the following reasons:
1. Vinal Thompson, at the time of the incident giving rise to the instant Indictment, was a Cumberland County Corrections Officer assigned to the Cumberland County Jail;
2. A Cumberland County Corrections Officer is a member of the law enforcement community. See Title 17-A M.R.S.A. Sec. 2(5a); 25 M.R.S.A. Sec. 2801-A, sub. sec. 2;
3. Thompson is charged, in a three count Indictment, with Reckless Conduct with a Dangerous Weapon, a Class C felony (Count 1); Assault, a Class D Misdemeanor (Count Two); and Reckless Conduct, a Class D Misdemeanor (Count 3);
4. The charges arise from an altercation between Thompson and an inmate, John Katula, whom Thompson was trying to handcuff in the Cumberland County Jail on July 7, 2020;
5. The day that the incident occurred, Sheriff Kevin Joyce, in an interview with the Portland Press Herald, stated that he was "very disappointed" in what he saw after reviewing a video of the incident (Ex. A);
6. The next day, July 8, 2020, Sheriff Joyce issued a Press Relase which inaccuarately described what happened during the altercation, stating that as C.O. Thompson approached Inmate Katula, Katula "started to back up and held his hands up as if to refuse to be handcuffed," and that "Officer Thompson immediately began to punch the inmate in the face." (Ex. B);
7. Although Joyce claims to have reviewed the video of the incident, if he had actually reviewed it, he would have realized that Katula had started the incident by assaulting Joyce's Correction Officer, which is a felony under State of Maine law. 17-A M.R.S. §752-A(1)(B);
8. Instead, Sheriff Joyce misrepresented to the media that Officer Thompson had started the assault, not the Inmate, and that as a result, he had requested a criminal investigation be conducted by the Portland Police Department against C.O. Thompson, as well as an Internal Affairs Investigation. Id;
9 Sheriff Joyce immediately placed Thompson on paid administrative;
10. Sheriff Joyce posted similar statements on various social media sites, including FaceBook, which were eventually taken down after complaints by the National Correctional Employees Union criticized Joyce for his public statements about the incident (Ex. C);
11. Katula subsequently filed a federal law suit against Officer Thompson, which generated additional publicity which repeated Sheriff Joyce's factually inaccurate position on the matter (Exhibits D, E);
12. A year later, when Officer Thomson was indicted, the Press Herald ran the same misinformation from a year earlier (Ex. F);
13. There is no way of knowing how many potential jurors in Cumberland County were exposed to these newspaper accounts and social media posts of the incident and subsequent law suit;
14. In addition to this negative publicity by Sheriff Joyce regarding Correct ion Officer Thompson, another incident that captured the attention of the entie country had recently occurred; the death of George Floyd at the hands of a Minneapolis Police Officer on May 26, 2020;
15. Following Floyd's death, organized protests, and riots, against law enforcement around the country began, many of which were organized by the Black Lives Matter movement;
16. Black Lives Matters (BLM) is a movement which originated in the African-American community and campaigns against violence and systematic racism towards Black people;
17. One campaign of the BLM is #DefundThePolice;
18. A series of BLM protests began in Portland, Maine in June 2020 and lasted for six consecutive nights, causing damage and destruction to several businesses in Portland;
19. Portland Police arrested 32 protestors during those protests, but charges were ultimately dismissed by the Cumberland County District Attorney, citing a lack of evidence (Exhibit G);
20. Since the COVID-19 pandemic in March of 2020, there has been a dearth of jury trials in Cumberland County from which to draw empirical evidence, but Officer Thompson believes that it is safe to say that the current political climate in Cumberland County does not favor law enforcement;
21. As a result, Vinal Thompson is concerned that he will not be able to get a fair and impartial jury if his case is tried in Cumberland County due to publicity about his case and the anti-law enforcement sentiment that has taken root in Southern Maine since the BLM movement began;
22. Although largely anecdotal, there is a legitimate concern among members of the criminal defense bar in Cumberland County that choosing a jury that is fair and impartial where the defendant is a member of the law enforcement community may not be possible in Southern Maine, given the current sentiment against law enforcement, including movements to defund the police and the current "woke" culture prevalent in this County.
LEGAL ANALYSIS
23. A Motion for a Change of Venue may be brought by a defendant pursuant to Rule 21, Me.R.Crim.P.;
24. Rule 21(b) provides that the Court, upon motion of the defendant, shall transfer the proceeding to another county, if the court is satisfied that there exists in the county where the prosecution is pending "so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial in that county;"
25. Maine courts have recognized two circumstances in which Due Process requires a change of venue based upon pretrial publicity. State v. Saucier, 776 A.2d 621 (Me. 2001) . First are instances of presumed prejudice, in which the publicity "has the immediacy, intensity, or the invidiousness sufficient to arouse general ill will and vindictiveness against the accused at the time of jury selection." Id. at 626. In those cases, the nature and extent of the publicity "so taints the atmosphere of the trial [that courts] will presume that an impartial jury in that location is not possible" Id. The second are circumstances of actual prejudice, in which an impartial jury could not be selected. The focus in determining actual prejudice is "the impartiality of the available panel members, and not whether the jurors are totally ignorant of the facts and issues involved" Id. at 627. In either instance, it is the defendant's burden to establish the existence of prejudice sufficient to change venue. State v. Black, 131 A.3d 371, 375 (Me. 2016);
26. Vinal Thompson believes that his situation is one of presumed prejudice, cause by his former boss, Sheriff Kevin Joyce publicly stating that he was disappointed by what he saw on the videos and immediately initiating both a criminal and an internal affairs investigation. As noted above, although Joyce's statements were factually inaccurate, they were issued by the Sheriff against one of his employees, which carries weight in the eyes of the public; J
27. Undersigned counsel was unable to reach Assistant District Attorney Katherine Hudson MacRae, to whom this matter is assigned, and is, therefore, unable to state whether the State has any objection to this Motion for Change of Venue;
28. Vinal Thompson respectfully requests an evidentiary hearing on this Motion.
WHEREFORE, Defendant Vinal Thompson requests an evidentiary hearing and a change of venue for his jury trial in the above captioned matter.