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Judge hopes to find local jury for Newell case

July 28, 1998|By KERRY LYNN FRALEY

MARTINSBURG, W.Va. - Unless a jury can't be seated from a panel of potential jurors, Berkeley County residents will decide the fate of a Martinsburg man charged with murder and kidnapping in the death of his niece, Berkeley County Circuit Judge Thomas Steptoe decided Monday.

But seating a jury doesn't necessarily mean Michael Newell, 40, will get a fair trial, said defense attorney Aaron C. Amore, who argued a random telephone survey of jury-eligible county residents showed media saturation created an overwhelming bias against his client in the community.

Newell is charged with first-degree murder and kidnapping in the abduction and death of 7-year-old Jessica Newell last fall.

He was scheduled to be tried July 6, but the trial was postponed to Oct. 19 to give the defense's expert witnesses a chance to review evidence.

Jessica Newell was reported missing from Pikeside Bowl, where she had gone with her parents on Sept. 18, 1997. Her body was found in a wooded area two days later on North Mountain, about 20 miles from the bowling alley.

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Michael Newell, of Winchester Pike, was charged in the crime on Sept. 22.

He reportedly was the last person seen with Jessica and his alibi - that he was at the Charles Town Races when the crime occurred - was disproved by security videotapes, police have said.

In addition, court documents say Newell's fingerprints were found on a cigarette pack about a mile from where Jessica's body was found.

Amore has asked that the trial be moved to another county, arguing that extensive media coverage of the trial and talk among local residents could taint jurors imported from another West Virginia county.

The results of a telephone survey in May indicate it would take a panel of about 2,000 potential jurors to find enough people who didn't know about the case to sit on the jury, according to Professor V.J. Brown Jr. of Research Service Associates.

Only 125 to 150 potential jurors are drawn for the panel every four weeks, according to the Berkeley County Circuit Clerk's office.

Brown's company conducted the survey using female graduate students from Shepherd College to call and question 480 county residents randomly chosen by computer to be representatives of the county as a whole, he said. Of the 318 people eligible to serve on a jury and willing to answer the questions, about one-third could identify either the victim, the accused or both, Brown said.

But almost all had heard of the case, he said. Only 3.1 percent said they knew nothing about it, Brown said.

Almost 60 percent said they believed authorities had the right man, Brown said. The rest said they weren't sure.

About half to two-thirds of those surveyed responded "yes" to a series of questions about whether they could fairly judge the case and thought Newell could receive a fair trial in Berkeley County, he said.

However, more than half of that same group had previously said they believed authorities arrested the right person, a troubling inconsistency, Brown said.

"They subjectively see themselves as being fair jurors, but I would not say they would be," he said.

Prosecuting Attorney Pamela Games-Neely said she conceded pretrial publicity was pervasive. But that's not enough to legally justify a change of venue, Games-Neely said.

She argued that the nature of the case, not knowledge of it, is what is going to make it difficult to find enough fair and impartial jurors.

Steptoe said he agreed with Games-Neely that the age of the victim and type of case are what's going to make seating a jury difficult.

"Crimes against children produce, in just about everyone, strong reactions," Steptoe said.

He said he felt the best test, better than any survey, would be to try to seat a jury of local residents.

Games-Neely put a string of county residents on the stand to show that reading about the case wouldn't necessarily bias a potential juror.

All of the witnesses said they hadn't prejudged the case based on what they had read and heard, and thought they could sit fairly in judgment.

However, some said they would require the defendant to prove his innocence before Games-Neely explained the law puts the burden of proof on the state, not the accused.

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