Judge denies change of venue motion in murder case

LYNDON—Chief Judge Phillip M. Fromme heard four motions from defense counsel for James Paul Harris. Harris, 30, Carbondale, is charged with first-degree murder in the death of James Gerety. Charges were formally filed against Harris Oct. 31, 2013 after DNA analysis confirmed a human skull belonged to Gerety.

The defense, represented by James Campbell, Harris’ attorney, first sought a change of venue for the proceedings. Campbell stated a need to try the defendant out of the Topeka media area, but not the judicial area, recommending either Franklin or Anderson counties. He also included statistics.

“Topeka has a crime rating of 5 out of 100, meaning that it’s safer than only five percent of locations, and that in fact, Carbondale is 91 out of 100,” said Campbell. “I believe that distinguishes these areas and can clearly show that it would be more difficult because of the change in relatively of what has been accused in this case.”

Campbell then argued that as a percentage it would be difficult to find a jury pool, as more would be aware of the case.

“Unfortunately, we hear very frequently on the news in Topeka of homicides and other violent crimes in that area,” said Campbell. “We don’t hear that so frequently in Osage County, which is more rural and a more safe community as you can see by the statistic.”

Brandon Jones, Osage County attorney, and Jacqie Spradling, chief deputy district attorney for Shawnee County, argued the motions in the state’s position.

Jones cited the high profile murder trial for defendant James Kraig Kahler in response to Campbell’s argument.

“We don’t feel the defendant’s met his burden at this point,” he said. “I will point out the Kahler capital murder case in 2009, which was tried two years ago.”

Jones said out of 500 possible jurors, that number was pooled to 300 with a week scheduled for jury selection.

“We scheduled a week for jury selection, thinking we’d have a hard time coming up with a fair and impartial jury because of all the expensive pre-trial publicity with that, which was a quadruple homicide that involved a 12-hour manhunt and I think shocked the community,” said Jones. “We had no problem. It actually only took us a day and a half to get 15 fair impartial jurors.”

Fromme denied the request.

“I don’t believe this particular case has received a lot of media attention and what media attention there has been, in my opinion, has been drawn out and not presented in a manner that keeps this case in the public eye at all,” said Fromme. “I don’t believe any way the defendant can show here that he is not likely to receive a fair trial.”

Fromme stated he would allow discussion with counsel to develop a special questionnaire if the defense felt would be appropriate. Campbell said the matter could be addressed at a later stage in proceedings.

Fromme also denied a motion to suppress witness Bobi William’s photo identification of the victim attached to a voodoo doll, hanging from Harris’ bedroom ceiling. Williams gave testimony saying that a photo attached to the doll was that of Gerety.

Two proposed motions from the defense will await trial for decision, including the exclusion of evidence that resulted from a traffic stop conducted by Topeka Police Department and the religious affiliation of the defendant.

The vehicle search included findings of a machete, acid, ammonia, handcuffs, shovels, gas cans and other noted unusual items located in Harris’ trunk.

Campbell pointed out that Harris was not arrested during the stop and items were later released. He also clarified that the items themselves are not admitted as evidence, merely photos of the items and testimony from police personnel conducting the stop.

Williams’ testimony again was a cause of concern for the defense when she testified at the probable cause hearing that Harris had voodoo related items and practices.

Campbell argued that Williams was the only witness corroborating such statements and had “sporadic” testimony at best. Fromme said he generally agreed that if Harris did in fact believe in voodoo or similar practices and those types of religious objects, they should not be discussed as part of the trial unless it has to do with the particular crime. He said conference with counsel would occur before such is discussed in trial.

Pre-trial proceedings are scheduled for 9:30 a.m. Dec. 1. A jury trial is set to begin 8:30 a.m. Jan. 5, 2015. The trial is expected to last a week and a half.

The Osage County Herald-Chronicle

The official newspaper of Osage County; the cities of Burlingame, Carbondale, Lyndon, Melvern, Olivet, Osage City, Overbrook, Quenemo and Scranton; Burlingame USD 454, Lyndon USD 421, Marais des Cygnes Valley USD 456, Osage City USD 420 and Santa Fe Trail USD 434.

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