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August 21, 2009 - 12:59am

The Batavian comments and coverage key part of defense change of venue motion

posted by Howard B. Owens in batavia, thebatavian, elba, elba robbery.

mug-Wells-Michael_front.jpgA "rural justice attitude" will prevent at least one of the defendants in the June 18 Elba bank robbery from getting a fair trial in Genesee County, according to Batavia defense attorney Thomas Burns.

Burns is defending Matthew J. Wells, who is accused, along with two other men from Buffalo, of robbing the M&T Bank branch in Elba, making off with at least $10,000 in cash, and then leading local law enforcement on a five-hour manhunt (with Wells being the final suspect caught).

In papers filed Thursday, Burns cites extensive media coverage of the robbery and manhunt, with special attention on The Batavian, as part of his change of venue motion.

Comments made by readers on The Batavian, as well as quotes from local law enforcement officials cited in coverage on The Batavian, indicate, according to Burns, that local jurors would be prejudiced against his big city client.

Among the five reader comments Burns includes in his brief is this one by Jeff Allen left the day after the robbery:

"Let's give major kudos to our local law enforcement agencies. The fact is these thugs thought that driving out to a hick town near a Thruway exit would be an easy knock off and escape back to the city. They got a quick introduction to rural justice. The only question that loomed yesterday was who would get them first, the police or a ticked off land owner with a shotgun! Great work everybody (Howard included), you did our area proud!"

Burns also cites quotes from Chief Jerome Brewster of the Genesee County Sheriff's Office and District Attorney Lawrence Friedman in The Batavian suggesting the suspects thought a rural bank might make an easy target.

His change of venue motion rests on three key points:

  • Intense media saturation coverage in a small, rural community with "sensationalized reports" combined with instantaneous and interactive technologies.
  • Lack of racial diversity in Genesee County (only 2.6 percent of the population is African-American).
  • The fact that some 30 to 35 percent of the people living in Genesee County were directly impacted by events that day, primarily because of the BOCES-imposed school lock down.

But it's the news coverage of The Batavian, and the comments on posts, that take up the bulk of the motion by Burns.

The attorney argues that the nature of media has changed, making the case for venue change even more compelling. The last change of venue granted was made by a local appellate court in a 1983 murder case. The trial was moved from Livingston County to Monroe County out of concern for "rural justice" attitudes and local media coverage.

"It is submitted that widespread use of internet news services will require courts to carefully assess the impact of instantaneous news reporting from on-line news services upon small rural counties reacting to high-profile crimes," Burns writes.

"It is reasonable to conclude that the Fourth Department Justices grappling with the Acomb, supra, decision in 1983 would have found the extent of localized publicity significantly increased had that decision been made after 1992, when the internet became widely accessible to the public, and even more so today where internet news sources saturate homes and businesses with instantaneous news of local concern and provide interactive content with subscribers and readers. Of the news services cited herein only the traditional print media and Time Warner services require reader/viewers to pay a fee. 'The Batavian' cited at length in this affirmation is available 24 hours per day without fee. In contrast, in Acomb, it is believed that media resources were exceedingly limited when compared to today's media outlets."

Burns also cites "extensive negative press" following bail review hearings for co-defendants Demone Dillon and Dennis Abrams as the reason he didn't seek bail for his client. Both Dillon and Abrams were offered bail of $250,000 and bond of $500,000 following hearings in which both defense attorneys and the prosecution discussed details of the cases at length. Following both hearings, written and verbal confessions were made available in the public case files. The Batavian reported details of the June 18 events from these sources.

District Attorney Lawrence Friedman said he doesn't believe Burns will win his motion and that it's premature for a change of venue motion because jury selection hasn't even started yet.

"Normally, you wait until you select a jury and then document the difficulty in doing so because of pre-trial exposure," Friedman said.

Friedman, who said he regularly follows local law enforcement cases on The Batavian, said it's rare for media coverage to impact the ability of attorneys to impanel an impartial jury and that it's too soon to say if new media is going to make that job harder.

Burns agreed that it may seem early to file a change of venue motion, but he said court rules compel him to file all of his motions within a certain time frame. In order to preserve the rights of his client, he said, he had to file the motion before today.

On behalf of Wells, Burns filed several other motions Thursday, including one to suppress any statements Wells made after his arrest.

Burns contends that Wells was not read his rights for more than two hours after his arrest. During that time, Burns states, Wells expressed a desire to remain silent and to speak to an attorney, but investigators kept pressing Wells to talk. Wells was arrested at 2:51 p.m., but it wasn't until 5:35 p.m., when a written confession was placed before Wells to sign, that he was read his Miranda rights.

Burns also claims there is a lack of reliable eyewitness testimony to place Wells at the Elba bank. The witnesses can only describe the robbers as black, Burns contends, and cannot positively identify Wells as one of the men inside the bank.

These facts call into question the evidence provided to the Grand Jury that led to the indictment of Wells on the bank robbery charges.

Burns also tipped his hand on a possible defense. Wells, in his defense, will assert "lack of knowledge and understanding of the criminal activity as a result of duress or improper influence by one or both of the co-defendants."

The change of venue motion was filed with the New York Supreme Court, Appellate Division, Fourth Department. The other motions were filed with Judge Robert Noonan in Genesee County. Noonan will hear arguments for the motion at 10:30 a.m. on Sept. 8. There's no word on when the appellate division might issue its ruling.

Previously:

C D
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Ballsy. Very ballsy move.
Bea McManis
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Rural attitudes! I agree, Chris, balsy move.
tom hunt
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Down here on the farm, we don't cotton to City Slickers trying to pull the wool over our eyes.
Lori Ann Santini
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Rural Attitudes only insults us more. Obviously Attorney Burns has read portions of "The Batavian". For the most part we are a very educated and well spoken group of people. Whether you live in the City (Buffalo) or you live in the Country (Elba) a crime is a crime. Go to court in Genesee County where you will be judged by the facts as they are presented. You may win you may not. In either case justice will prevail. Don't try to inconvenience all the witnesses by making them drive to Buffalo or Rochester to testify under the pretense of trying to obtain a unbiased jury. You can find a jury here in this county. Try.........
Howard B. Owens
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Reminder: Tom Burns is ethically, morally and legally bound to provide a vigorous defense for his client.
Bea McManis
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I can remember having a conversation with a minister, from down state, who came to Attica to counsel inmates. He bemoaned the fact that the inmates, from urban areas, had to "put up" with our rural mentality. Granted, we are a close knit rural county set in the far western reaches of the state. That doesn't mean that an impartial jury is impossible to seat. Who might be rejected as a juror, even though that person might be impartial? * The regulars who post to the Batavian. * Those who had children in the schools that were placed in lock down. * Those who were inconvenienced by the road blocks. * Those who are customers of the Elba bank. * Anyone related to or close friends of the personnel at the bank. This is just a fraction of the population of the county. There would still be a pool of people available to sit on this jury. A trial lawyer, of course, has a responsibility to do what is perceived to be the best for the client. It will be interesting to see if there is a change of venue.
william tapp
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hang him up by his toes he did the crime, so whats the big deal
Laura Scarborough
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Well, if one did not drive out of their way to an area they do not live in order to committ an "alleged" crime.. one would not have to be tried in that court. You reap what you sew. Nice attempt on the lawyer though, trying to pull stuff out of his hat..."rural justice".... Makes you feel we're the setting for the Dukes of Hazard...lol even though I worked smack in the middle of Downtown Rochester for about 10years.... gotta go now and make my daily moonshine run and outrun the cops & Boss Hog.
Laura Scarborough
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If all courts were to review all posts on local media websites...and moved them out of the area based on community posts... then all the cases listed and posted/blogged about on Channel 2's website, WGRZ would be moved out of the county... many of those posters have very severe comments. But, again, I realize the lawyer needs to try and do his job and the "rural justice" comment is getting the attention in which the lawyer intended.
George Richardson
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I'm not sure that Bank Robbery is more easily excused in Buffalo. I've read that they lock you up without water or toilet paper if you have an unpaid parking ticket.
Ron C Welker
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GULTY AS CHARGED! CUT THE CRAP! Fair trial............ for armed bank robbers that were caught red handed. Great work by local police agencys, thanks for being there.
Amy Stucko
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Maybe Mr. Burns should go talk to the tellers who were assaulted during this crime and see what they think of "rural justice attitude".
Richard Gahagan
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WNY Rural Attitudes = Yankee Redneck White Prejudice Racist Farmers.
Howard B. Owens
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One thing I think I need to clarify that maybe I didn't make clear enough. I don't take this as Burns saying we're all a bunch of rubes who can't wait to string these guys up. Remember, Burns has been practicing law in Batavia for 20 or 30 years. He's one of us. This is his home, too. Burns is suggesting that potential jurors might jump to the pre-judged conclusion that these defendants didn't respect "the hicks in the sticks," which is why they hit a rural bank. The urban-rural divide has existed in the US for nearly 200 years. Some urbanites think all rural people are knobknockers. Some rural residents suspect and resent city slickers of such prejudices. That's just the way it is. I think what Burns is suggesting -- and to emphasize, this is just my speculation from what I read -- that some people might find themselves in the jury box and start thinking, "these guys obviously thought us Genesee County residents were easy marks -- I'll show him what an easy mark we are: Throw the Book at Him!" In other words, there might be a legitimate concern that some jurors will view the case through the eyes of resentment at being perceived as hicks, not that we are hicks. And if you read the comments on The Batavian, it's clear some people felt some degree resentment at the idea that these suspects thought Elba was an easy mark. You don't have to be a reader of The Batavian to hold those views. It's quite reasonable to suspect that a lot of people don't like the idea that three guys from a big city thought a rural bank would be an easy mark, and are proud that local law enforcement proved them wrong. Again, I'm just trying to explain my perception of the motion and don't mean to imply any of the defendants are guilty. I support everybody's right to a fair trial.
Peter O'Brien
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I hope it is moved. I think he would get a fair trial here. but I think moving it would be better for him. The rural attitudes displayed on this site are just as bad as those displayed by suburbanites to the riff raff of Avenue D. Full of prejudice.
Karen Miconi
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You are right Amy, Maybe they should answer to the victims in all of this. You know, the ones who had guns pointed at them. Bottom line, and fact, they were armed, threatened the bank tellers,with guns{all on camera} and robbed the bank. Then they proceeded to run through fields, behind homes filled with innocent people, armed and dangerous. What is there to prove? Just a waste of time and money, in my opinion, dragging this through court. But I guess we are all entitled to a fair trial. The system needs an overhaul. As for Mr. Burns, he IS just doing his job. This guy lucked out getting Mr. Burns to defend him.
Howard B. Owens
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Karen, Let's put this in a hypothetical -- what if one witness said, "I thought I saw a white woman leave with them." And you decided to take a walk in the woods that day. A Sheriff's K-9 Patrol starts coming through the woods, and you don't immediately recognize this guy with a dog in a jump suit as a cop, so you try to run. Of course he catches you. He announces, "we caught the woman suspect." That gets reported in the media. You're arrested, mug shot splashed on The Batavian, and either there was no woman involved or she got away, but you're caught, have no alibi, and everybody just assumes you're guilty. I'm not saying that happened with any of these defendants, but such scenarios is why we need a legal system that gives each accused criminal -- no matter how obvious it may seem that he or she is guilty -- a chance at a vigorous defense. If the price is that a guilty person here and there gets such a good defense that he or she is found not-guilty or manages to get charges dismissed, that's just the price we pay to ensure that the government can't just arbitrarily lock up people. To me, it's a small price to pay. It's the price we pay to keep a check on overreaching governments. It's the price that protects freedom for all of us. The government should be required to prove its case each and every time to ensure we all are protected from unreasonable arrest.
Karen Miconi
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With all due respect, Howard these guys had loaded guns, that they pointed at the tellers, that they could have killed with them, with the bank camera rolling the whole time. I guess I just didnt understand what you are trying to say. Plus I dont think his arrest was unreasonable, as you state above.
Gabor Deutsch
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I will take "bleeding heart liberal" for $200 Alex....lol
George Richardson
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His defense, his only defense is that: "No one could steer me right, but Mama tried."
Gary Spencer
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Karen, Howard is not saying that this defendant was the victim of "unreasonable arrest" what he is saying is that the laws are in place to protect us all from unreasonable arrest. If there is indeed photographic evidence from the bank (I haven't seen that reported anywhere) it will be used as evidence, however I remember reports that the bank robbers were wearing masks, so it may not help much. I don't think this is going to be a difficult case to prove, regardless of what comments are being made on THEBATAVIAN. I agree with Howard that Mr. Burns has been practicing law in our community for years and is "one of us", he is doing his job and doing it well, if I ever needed a defence lawyer working for me, I would want one that works as hard as he is doing for this case.
John Woodworth JR
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Well Mr. Burns needs to trust that any Judge will state to you that you can only used the facts and evidence against him and not your heart. I was just on an jury from an case almost 2 years old. There were three counts against him and we found him guilty on 2 of the 3 counts. Though most of us felt he was guilty of the 3rd, there just wasn't enough solid evidence against him. So, we have to believe that people will be honest enough to use fact and evidence and not their heart in this case. The evidence for the first two counts against the man involved when I was a juror was very solid without any doubts.
Howard B. Owens
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Karen, how do you know there is photographic/video evidence? I've never seen that reported and it hasn't come out in court or in the court documents I've read. Here's the facts as we know them: -- Three men, described as black, entered the M&T Bank on June 18. -- Two men actually entered the bank, a third stood in the doorway. -- One man carried a license, loaded gun. A second man carried a BB-gun. -- A teller says one man held a gun to her head. If Suspect Abrams' confession is allowed into testimony, we can believe Abrams carried the loaded gun. It was licensed to him. But Abrams, in his confession, denies holding the gun to anybody's head. -- The men wore masts. -- Three men are believed to have exited the bank, jumped in a waiting SUV and fled the scene. The men reportedly fled the vehicle at various points and were subsequently caught in the brush and woods of the Town of Batavia. You say, "these guys had loaded guns." The facts as stated by the police are different (only one loaded gun). You say the bank camera rolled the whole time. How do you know that. I don't know that, and even if it did, how would it help identify Abrams, Wells or Dillon, since they wore masks. I never said the arrest was unreasonable. Not even close. All I'm saying is should any of the defendants decide not to plead guilty and to go to trial, they have a right to a vigorous defense. We all have the right -- and I consider it more than a constitutional right, but a God-given right, to be presumed innocent until proven guilty. You've already convicted Wells by drawing on evidence not in record and jumping to conclusions that have not been proven in court. If you were arrested in that field that day through mistaken identity -- and I'm not saying that happened with Wells, Abrams or Dillion, but YOU, if it was YOU -- wouldn't you want to have a complete and fair trial? People always want to jump to conclusions that defendants are guilty, forgetting that next time it could be them, through no fault of their own, placed in the hot seat. Regardless of what conclusions I might have come to about Wells, Abrams and Dillon, I will defend with the last sentence I can possibly type their right to a fair trial and a vigorous defense, because I want the same right preserved for myself should the day ever come (and I pray it doesn't and I doubt ever will, but ... ) that I need the same rights protected for myself. Great defense attorneys who fight hard for their clients are essential to freedom. And great prosecutors -- such as the men and women in the District Attorney's office -- are essential to protecting the interest of society at large (the people, the state) but because the state possesses such awesome power to deprive people of life and liberty, prosecutors should be required to work very hard to prove their cases. That's just an essential component to a free society. I'm very much a law and order kind of guy. I'm not looking for criminals to get off, but neither do I want to state to be able to lock people up in a cake walk.
Bea McManis
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Well stated - you could easily be channeling John Adams, who was the defense attorney for the British soldiers involved in the Boston Massacre. John Adams, in his old age, called his defense of British soldiers in 1770 "one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country." That's quite a statement, coming as it does from perhaps the most underappreciated great man in American history. "Facts are stubborn things," he concluded, "and whatever may be our inclinations, or the dictums of our passions, they cannot alter the state of facts and evidence."
Ron C Welker
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delete
Bea McManis
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Posted by Ron C Welker on August 22, 2009 - 3:54pm delete ? Are you asking me to delete my last post?
Howard B. Owens
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Bea, Ron most likely wrote something and then changed his mind after posting.
Ron C Welker
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Bea, No I was not refering to your post at all, just changed my mind about a post I had made. Wanted to tag another post but it didnt work, Sorry about the misunderstanding. Ron
George Richardson
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I've followed this story since the beginning and I think all three of these guys need to say 50,000 Our Father's and a Million Hail Mary's, then pick up trash on a twenty mile stretch of highway for a year. After that someone can give them a decent job and have great employees for a few years. I'm not even half kidding. There's that Rural (Austin, Texas) mentality showing itself again.
bud prevost
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Great defense attorneys who fight hard for their clients are essential to freedom They also love the fact that mama had a house he could put a lien on, and when she defaults, it's his. That is an attorney for ya! He could give a rat's ass about this guy, he sees $$ signs, pure and simple. Yeah, move it to Erie or Monroe county, so the lawyer can tack on expenses and mileage. What, I'm wrong???
Bea McManis
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Posted by Ron C Welker on August 22, 2009 - 6:27pm Bea, No I was not refering to your post at all, just changed my mind about a post I had made. Wanted to tag another post but it didnt work, Sorry about the misunderstanding. Ron No problem, I should have realized that. I've tried to delete posts too. Not easy!
Gabor Deutsch
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If u want to delete a post u still have to write something after backspace. I use ooops.
Karen Miconi
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First of all Howard, I would never put myself in that position, so I wouldnt be arrested in a field somewhere. Second, yes I do know all the tellers at both Batavia, and Elba. Elba was on a conference call with Batavia M&T when this happened. The tellers on the other line heard everything that happened to the girls in Elba. They also have video cameras that are on 24-7. Hopefully the camera footage will show the men pointing the guns. One gun or two doesn't really matter. I think if (for instance) your wife was one of the ones with a gun to her head, you would probably change your tune. I just stated my opinion, and the facts, to the best of my knowledge. Thats all. Just like everyone else above. Mr. Burns, again, is just doing his job, and I never said anything bad about him either.
iesha honeycutt
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kudos to his lawyer for doing a great job!!!!!!!!!

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