CASE 0:15-cr-00340-JRT-LIB Document 50 Filed 05/11/16 Page 1 of 17 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Crim. No. 15-340 (JRT/LIB) UNITED STATES OF AMERICA, Plaintiff, vs. DANNY JAMES HEINRICH, Defendant. I. ) ) ) ) ) ) ) ) ) MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR TRANSFER OF VENUE INTRODUCTION Danny Heinrich, through counsel, submits this Memorandum together with an Appendix (APX), in support of the defense’s motion to transfer these proceedings to a federal district that is not so intractably affected by the environment of bias that now pervades this one. (ECF 43). II. FACTUAL BACKGROUND While serious in nature, the allegations set forth in the charging document are not exceptional. An individual with even a modicum of legal experience in criminal law would probably judge this case ordinary, even mundane. The defendant is alleged to have received and possessed child pornography. (ECF 18). Hundreds of similar indictments are returned annually, e.g., U.S. Sentencing Commission, FEDERAL CHILD PORNOGRAPHY OFFENSES 121-64, 326-30 (2012), rarely creating even the slightest public interest. Courtroom seats for the resulting proceedings lie vacant. Media organizations repose with indifferent silence. For the most part it is only the parties, lawyers, and judicial officials that give the matter much thought. 1 CASE 0:15-cr-00340-JRT-LIB Document 50 Filed 05/11/16 Page 2 of 17 It would come as quite a jolt to a naïve onlooker, then, to arrive at the appointed hour for a hearing only to discover the courtroom packed with spectators. He would instantly notice that some of the surrounding faces were vaguely familiar. The person standing next to him a television news reporter, and next to her a well-known blogger. All around him individuals scribbling on notepads, readying recorders, sketching the lawyers and their client, and silencing their recently-used mobile telephones. There is something quite peculiar about this case, the observer has already come to understand. He inquires of a neighbor who utters a single name, and instantly the mental fog lifts. In its place there arises memories and thoughts and emotions born of years—a great many years—of communal trauma, reinforced over and over again via periodic media reminders. (See, e.g., APX D-1). It would become obvious that this case is not only about—or even mainly about— what is alleged in the indictment. But that became obvious the moment that the highest ranking federal law enforcement official in this state called a press conference to announce that Danny Heinrich had been charged with possession of child pornography and that he was a “person of interest” in the highest profile unsolved crime in Minnesota history—the Jacob Wetterling abduction. Surrounded by law enforcement officers, U.S. Attorney Andrew Luger gathered the media to publicly brand Danny Heinrich with a crime so infamous to Minnesotans, that the utterance of the boy’s name evoked a flood of traumatic memories from a public that had lived through the nightmare of an innocent boy’s abduction and the eventual hopelessness that had set in when decades passed and the case went unsolved. (E.g., APX D-1; D-8; V-1 to -4). 2 CASE 0:15-cr-00340-JRT-LIB Document 50 Filed 05/11/16 Page 3 of 17 In 1989, an 11-year-old boy was abducted in St. Joseph, Minnesota by a masked gunman. The boy remains missing to this day, the gunman’s identity yet uncovered. This unfathomable tragedy became a part of Minnesota’s history. Mention this abduction to almost any Minnesotan and they will immediately utter the boy’s name. Even amongst transplants or ascetics or others similarly less informed, it is virtually impossible to maintain ignorance about this tragedy for long. The account of the abduction and his family’s quest for answers is periodically mass-published by media organizations, (APX), 1 and the boy’s name and backstory adorn such diverse and varied items as national legislation, (http://ojp.gov/smart/legislation.htm), public advocacy organizations, (http://www.gundersenhealth.org/ncptc/jacob-wetterling-resource-center), even public works, (https://en.wikipedia.org/wiki/Bridge_of_Hope). This tragic story has inspired amateur detectives to publish full-length books, (e.g., APX D-2), websites, (e.g., APX D3), and the like. It is widely understood in this State that the event was traumatizing, and continues to be. Traumatizing to Jacob’s family and friends of course, but also to the broader community. It is held up as the ultimate parental cautionary tale. “The abduction case that changed Minnesota,” as one of many publications dubbed it. 1 The generalized point that the 1989 abduction has been widely-publicized over many years—and is thus very familiar and emotionally jarring to residents of this State—is so evident as to merit judicial notice. But to the extent any verification is necessary, a researcher could enter Jacob Wetterling’s name into any reliable news database and generate hundreds of media pieces. The defense used this procedure in the Thomson Reuters News database, and nearly 2,000 articles were returned, spanning from 1989 to present day. 3 CASE 0:15-cr-00340-JRT-LIB Document 50 Filed 05/11/16 Page 4 of 17 (http://www.startribune.com/jacob-wetterling-the-abduction-case-that-changedminnesota/338500232/). And so, upon the heralded announcement that investigators had connected Mr. Heinrich with this infamous and widely-known unsolved crime, media organizations inundated the public with reports about Danny Heinrich and all of the crimes he might have been involved in. (See APX, passim). It was and continues to be widely reported that the law enforcement authorities involved in the Wetterling investigation designated Mr. Heinrich to be a “person of interest” in the aforementioned unsolved abduction. (E.g., APX D-4 to -6). The phrase sounds of euphemism, which is precisely what it is. The barely-disguised subtext: Look here. Here he is. We’ve finally caught him. The monster that we have tried to find for all of these years. (See APX, passim). That publicity would be bad enough on its own, but in fact it is only the beginning. For the media reports don’t just point the finger at Mr. Heinrich for that crime, but a string of similar ones in this State too. All are inter-connected, the reports say. (E.g., APX D-4 to -6; D-8; V-1 to -4). It’s not just generalized accusations either. Making the rounds are photo arrays like this one: 4 CASE 0:15-cr-00340-JRT-LIB Document 50 Filed 05/11/16 Page 5 of 17 (E.g., APX V-3 at 1:05 to :15). The graphic is frequently accompanied by witness accounts—in print and video—marveling at how closely Mr. Heinrich resembles the police sketch of the culprit. (E.g., APX V-1 at 1:00 to 1:05, 1:40 to :50; APX D-6 at 2; ECF 16 at 14 (“I think it is fair to say there are great similarities between the sketch and Mr. Heinrich.”)). Alleged victims give video interviews indicating the police finally have their man. (E.g., APX V-1 at 1:00 to 1:05, 1:40 to :50; V-2 at 3:40 to 4:45). The science seals it, according to these reports. They claim that Mr. Heinrich’s DNA was found on the clothing of alleged victims. A “100% match,” some of these reports say. All imply that this connection is definitive of guilt. (E.g., APX D-3 at 6, 8; D-5 at 2; V-2 at 3:40 to 4:45; V-3 at 2:00 to 3:55). And this is to say nothing of all the other details mass media organizations report, over and over again. That Mr. Heinrich admitted to “damning” evidence. That the police found pornographic images of young boys in his home. That he took surreptitious videos of boys in his neighborhood for his own sexual gratification. That he drove a car just like the car driven by a suspect in one of the assaults. That his tire treads matched suspect 5 CASE 0:15-cr-00340-JRT-LIB Document 50 Filed 05/11/16 Page 6 of 17 tracks. That his shoes matched suspect prints. All of this reported in news story after news story. (APX D-4 to -8; V-1 to -4). There are complaints about the statute of limitations and other procedural considerations. Characterizing these procedural guaranties as technicalities, that might prevent Heinrich from being held accountable for the crimes he is already presumed guilty of committing. (Always, the presumption is guilt). The unambiguous subtext: it is fortunate that contraband was found in his home; at least the jail time imposed for that offense can serve as a substitute for his other presumed crimes. (APX D-4 at 2; D-3 at 8; D-5 at 2; V-2 at 3:40 to 4:45; V-3 at 2:00 to 3:55). The public message is unmistakable— the police have in their grasp a sick and twisted individual. Guilt is a foregone conclusion. The only question is whether the inevitable punishment will suffice. (APX, passim). Now, having surveyed the one-sided mass media deluge, perhaps a dose of skepticism is in order. The reality is these conclusions are wildly overstated. Sometimes outright false. They fail to mention, for example, that the same witness who provided the description for the above police sketch, soon thereafter failed to identify Mr. Heinrich in a photo lineup, and then in a live lineup. (APX D-8 at Application 1-6 & 1-8). There are many other omissions too, but the case is not to be tried in these motion papers, and certainly not in the public media. This should not be mistaken for an invective against the press, whose members are just serving their societal function. The reality is that media organizations report what their sources tell them. And here, their principal source has been governmental 6 CASE 0:15-cr-00340-JRT-LIB Document 50 Filed 05/11/16 Page 7 of 17 investigators, who have promulgated a one-sided narrative. For it was the federal law enforcement officials who called a press conference to shout from the rooftops that they had been the ones to arrest and to soon prosecute the man who was a “person of interest” in the Jacob Wetterling case. If they had called the press conference to announce that Danny Heinrich had been charged by complaint with five counts of possessing child pornography, no one would have attended. But they did not do that. Instead they spoke the name of Jacob Wetterling and hung the “person of interest” moniker around Danny Heinrich’s neck. Every newspaper, internet and television reporter in the Twin Cities and beyond who could attend the news conference, did attend the news conference. Law enforcement passed out copies of the search warrant materials. They spoke of the bounty procured from Mr. Heinrich’s home. True, there were perfunctory comments about the presumption of innocence, spoken as though a matter of afterthought and technical obligation. But that makes for a meager counterbalance to the lion’s share of their presentation attempting to connect him to the Wetterling abduction and additional crimes against children. (APX D-4; D-7; V-4). None of this was necessary. The warrant materials could have been sealed to avoid corruption of the purported ongoing investigation. (Any witness coming forward about the alleged 1980s crimes will now almost certainly tell a story influenced by the evidence the police have so broadly and loudly publicized). The case could have proceeded in relative obscurity, in the manner of most such cases as discussed earlier. But that was not the path chosen by the U.S. Attorney’s Office or their law enforcement partners. Instead they actively sought the publicity environment that has now arisen. (APX D-7; V-4). 7 CASE 0:15-cr-00340-JRT-LIB Document 50 Filed 05/11/16 Page 8 of 17 They asked for the media frenzy that now surrounds this prosecution. And it is the bias created by this same frenzy that makes it necessary for Mr. Heinrich to seek a different venue in order to seat a jury that is not already biased against him, ab initio. III. DISCUSSION Inter-district transfer is mandatory when “so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.” FED. R. CRIM. P. 21(a). The rule exists not just for prudential reasons, but constitutional ones as well. Prejudicial and widespread publicity implicates the accused’s right to due process, Rideau v. Louisiana, 373 U.S. 723, 726 (1963), as well as the Sixth Amendment right to an impartial jury, Skilling v. United States, 561 U.S. 358, 377-78 (2010). The overriding purpose of this rule is to ensure any trial result is “induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Patterson v. Colorado, 205 U.S. 454, 462 (1907). Accordingly, the Court of Appeals has directed that transfer motions such as this one be evaluated in stages. United States v. Blom, 242 F.3d 799, 803 (8th Cir. 2001). In the first stage, a district court is called upon to determine whether the public climate is “so extensive and corrupting” as to lead the evaluator to “presume unfairness of constitutional magnitude.” Id. (citations and punctuation omitted). Even where no such presumption is found, the district court must re-evaluate the matter at the juror voir dire stage, and decide whether the venire members demonstrate actual prejudice. Id. 8 CASE 0:15-cr-00340-JRT-LIB Document 50 Filed 05/11/16 Page 9 of 17 A. Determining presumptive prejudice at the initial stage of proceedings The motion before the Court concerns the first-stage inquiry regarding presumption of unfairness. In pursuing this inquiry, courts typically consider these factors: (1) Whether the publicity is “recent, widespread, and highly damaging” to the accused; (2) Who bears responsibility for the publicity (e.g., government, independent sources, et cetera); (3) Convenience to the administration of justice; (4) Whether a substantially better panel can be sworn at another time or place. 2 Wright et al., FEDERAL PRACTICE & PROCEDURE—CRIMINAL § 343 (4th ed. 2016). All of these strongly favor inter-district transfer. 1. Recent, widespread, and highly damaging publicity The Supreme Court set forth a number of considerations a court should bear in mind when evaluating whether pretrial publicity is so harmful as to merit transfer at the initial stage, including: (a) whether the publicity includes a “confession or other blatantly prejudicial information of the type readers or viewers could not reasonably shut from sight”; (b) the timing of trial in relation to said publicity; and (c) the “size and characteristics” of the community at issue. Skilling, 561 U.S. at 381-84. 2 Here, as just discussed at some length, there exists an avalanche of “blatantly prejudicial information.” Without rehashing the entirety, the following information has 2 In its role as an overseer, the high court also placed “prime significance” upon the fact the accused was acquitted on certain counts, thus suggesting juror bias could not have been so overwhelming as to corrupt jury decision-making. Skilling, 561 U.S. at 383-84. Though it may go without saying, it is not possible to evaluate this factor at this stage of proceedings, lacking a venire much less a verdict. 9 CASE 0:15-cr-00340-JRT-LIB Document 50 Filed 05/11/16 Page 10 of 17 been widely circulated and re-circulated ad infinitum: • photo-identification arrays purportedly evincing “great similarities”; • witness statements of identification; • a “100%” DNA match; • a supposed confession admitting to “damning” evidence; • a stash of pornographic images depicting lascivious images of boys (described in some gratuitous detail); • amateur, purportedly-lascivious videos of neighborhood boys. Supra § II. There exists not merely some “blatantly prejudicial information” circulating in the mass media, but rather a vast quantum. Supra § II. The problem is compounded by the unusually keen interest the public has taken in the 1980s unsolved crimes discussed earlier. The government will say Danny Heinrich is not charged with those crimes, but let’s look at the matter realistically. In their warrant materials, (APX D-8), press releases, (APX V-4), and evidentiary presentations, (ECF 16 at 12-19), governmental investigators have repeatedly tried to link Mr. Heinrich to those crimes. The government will almost certainly try to present some of this evidence to the trial jury in the present case (e.g., FRE 404(b), res gestae, or other possible theories the government employs). Even if it doesn’t try this tack, the mass media has linked the theory that Danny Heinrich is responsible for the 1980s cases with the present-day charges, all at law enforcement’s urging. That’s why there now exists such broad and intensive interest in this case; a case that normally would garner little to no attention. The case before the Court is like United States v. McVeigh, 918 F. Supp. 1467 10 CASE 0:15-cr-00340-JRT-LIB Document 50 Filed 05/11/16 Page 11 of 17 (W.D. Okla. 1996) in many respects, where the court transferred Oklahoma City bombing suspects to another district for trial. Although that crime certainly garnered national attention, the emotional intensity was magnified many times over in Oklahoma where residents “wanted to know every detail.” This need to know, included details about “the investigation, the court proceedings and, in particular, the victims” which sadly included many small children. Id. at 1471. The community’s “emotional burden” had been “intensified by the repeated and heavy emphasis on the innocence of the victims and the impact of their loss on their families.” Id. at 1472. As for the accused, they were “demonized” by all manner of media reports, which included photos of the defendants suggesting guilt, governmental evidentiary presentations, and overt associations with reviled groups. Id. at 1472-73. Similarly, here media reports are and have been saturated with stories about victims, particularly (though certainly not exclusively) Jacob Wetterling and his family. What Minnesotan has not seen the pictures of a smiling Jacob Wetterling or the sad and tragic face of his mother Patty Wetterling? Radio stories, magazine articles, television programs all tell the story of the abduction, the family’s hope and grief and the efforts of Patty Wetterling to give some meaning to all of this with her public works. Minnesotans understandably want justice for the Wetterlings. (See, e.g., APX passim). In contrast to all of this, is the way in which Danny Heinrich has been portrayed by the media—as a depraved and menacing monster. His photo is repeatedly and suggestively flashed next to sketches claimed to represent the guilty party. The government’s evidentiary presentation is given a complete and enthusiastic airing, 11 CASE 0:15-cr-00340-JRT-LIB Document 50 Filed 05/11/16 Page 12 of 17 without a whiff of skepticism. As in McVeigh, the public message is focused on “seeing that justice is done,” id. at 1472, which here means exacting punishment upon Mr. Heinrich for the allegations at hand, as an imperfect but suitable substitute for the infamous 1980s-era crime. The messaging will only grow louder and more vehement as the trial date approaches. Last, while it’s true that this State is relatively populous and boasts a major metropolitan area, the emotional events involved in this case have maintained remarkable currency over wide swaths of the state’s residents, and across long stretches of time. This is why the most well-known name in this matter is as familiar now as it was a quarter century ago. It is part of this State’s shared experience and trauma, and demonstrated by the enduring statewide popular interest in the matter, (APX, passim), the marking of event anniversaries, (http://www.startribune.com/oct-19-2014-after-25-years-search-forjacob-wetterling-continues/279675452/#18), and the like. Yes, there have been other cases that have captured the public’s attention—the matters involving Donald Blom and Tom Petters spring to mind. But a key difference is that those cases have only captivated the public for a short while. None have persisted through time as the Wetterling case has. Donald Blom, for example, was accused of a 1999 kidnapping and murder, (http://news.minnesota.publicradio.org/=features/ 199909/09_radila_poirier/), and was convicted and sentenced the very next year, (http://news.minnesota.publicradio.org/features/200008/17_newsroom_blom/). Tom Petters’s fraud scheme was discovered, charged, and prosecuted within the span of less than two years. Conversely, Jacob Wetterling’s abduction, the hope that he would be 12 CASE 0:15-cr-00340-JRT-LIB Document 50 Filed 05/11/16 Page 13 of 17 found alive, and then the hope that he would just be found so his family and the community would have answers and possibly some peace has been part of the Minnesota public consciousness for twenty five years. By stigmatizing Mr. Heinrich with the “person of interest” moniker, federal law enforcement authorities have inextricably intertwined the child pornography case with the public’s desire for justice for the Wetterlings. Incidentally, Blom was charged with murder in state court and a firearms offense in federal court. Although there was significant media attention in that matter, the defense has found no indication that federal law enforcers made the conscious effort to publicly link Blom to the infamous crime as they did with Mr. Heinrich. Instead, the media attention was because Blom had been charged in state court with the kidnapping and murder of Katie Poirier. The point is that the Jacob Wetterling case is an inextricable part of this State’s shared culture. There is no escaping it, for any resident of this State. Even a mediaeschewing ascetic would soon be bombarded with all the messaging once he or she set foot in the courthouse for jury selection. The satellite-trucks parked out front. The camera operators and microphone-bearing reporters setting up on sidewalks and skyways. The television news programs, radio-transmitted voices, website postings, newspaper headlines, and so on; all loudly and repeatedly reporting the emotional events of 25 years ago and the government narrative of today. There is no escaping reality here; it is not possible to seat a jury untouched and unaffected by the ubiquitous media exposure that surrounds this case. Not just any media exposure either, but rather the “highly 13 CASE 0:15-cr-00340-JRT-LIB Document 50 Filed 05/11/16 Page 14 of 17 damaging” sort. In sum, to say the publicity here is widespread and highly damaging is to master the art of understatement. This factor weighs heavily in favor of transfer. 2. Responsibility for the publicity As discussed at length earlier, this case could have easily proceeded with virtually no publicity at all. That would be the normal course of events. Instead, government investigators and prosecutors chose to publicly taint Danny Heinrich with uncharged theories about twenty-five year old offenses, and then prosecute him for unrelated offenses. The current public atmosphere is precisely what could have been predicted when the government chose to sensationalize this child pornography prosecution. The government may defend its choice to create this situation. Perhaps they will say it can serve a public good under the right circumstances. Whatever the merits or demerits of this decision, the result is a government-induced media frenzy with a deluge of one-sided and highly damaging information being circulated and re-circulated. And that presents a great challenge to the parties, lawyers, and most especially this Court. Consequently, the government shouldn’t be heard to complain about the defense’s proposed solution of inter-district transfer here. Having stoked embers into a firestorm, the government cannot now complain about the manner in which the flames are doused. 3. Convenience to administration of justice There will always be inconveniences caused by changing the venue of a trial. However, those must be weighed against the prejudice that would come to the defendant 14 CASE 0:15-cr-00340-JRT-LIB Document 50 Filed 05/11/16 Page 15 of 17 if venue is not changed. In this matter, there are no serious administrative impediments to an inter-district transfer. This State boasts an airport offering direct flights to multiple locations. All of the relevant evidence would appear to be easily portable, and there is no evident need for a jury to make any kind of site inspection. This factor favors transfer. 4. Availability of substantially better panel Any number of federal districts lack the poisonous media saturation that exists in this one, and thus present substantially better venues for proceedings as the matter winds forward. In selecting an appropriate alternative venue, courts typically consider practical factors, such as the aforementioned lessened publicity in the transferee district, geographical proximity to the transferor district, availability of convenient transit to the transferee district, and so on. Considering these factors, the defense would suggest transfer to Eastern District of Wisconsin at Milwaukee, or the Western District of that same state in Madison, or the Southern District of Iowa at Des Moines. The defense’s research indicates far less pervasive mass media coverage of this matter in those districts. Both are geographically near, and easily accessible via direct flight or automobile or other means. Thus, this last factor favors transfer as well. In sum, the Court should find presumptive prejudice here and order inter-district transfer. As just demonstrated, the matter is a foregone conclusion, and waiting for jury selection will only create yet more administrative burden and delays. 15 CASE 0:15-cr-00340-JRT-LIB Document 50 Filed 05/11/16 Page 16 of 17 B. Determining actual prejudice at voir dire stage Recall that it is not sufficient to just examine the effects of pretrial publicity at an early stage of proceedings; rather, a district court is called upon to revisit the matter at the juror voir dire stage, to see if there exists actual prejudice. Blom, 242 F.3d at 803. In the case before the Court, the answer to the question of the existence of actual prejudice is a near-certain yes, but there are a number of steps that may be taken in an effort to blunt the problem. For example: (1) assembling a much larger jury pool (sometimes more than 10 times the size); (2) excluding from that pool the area where the crime occurred; (3) crafting and distributing questionnaires to vet potential jurors; and (4) increasing the number of peremptory strikes exercisable by the accused. Blom, 242 F.3d at 804; accord, e.g., United States v. Rodriguez, No. 2:04-CR-55, ECF 355 (D.N.D. May 25, 2006). As mentioned, the defense believes that some of these steps will actually further demonstrate the intractable prejudice as noted earlier. But if the Court is inclined to put the matter on hold until the voir dire stage, at a minimum these protective steps should be taken. In that event, the defense would request the opportunity to submit recommendations and draft questionnaires regarding any protective steps that the Court might consider. 16 CASE 0:15-cr-00340-JRT-LIB Document 50 Filed 05/11/16 Page 17 of 17 IV. CONCLUSION For all of these reasons, Mr. Heinrich requests an order granting inter-district transfer to either the Eastern or Western District of Wisconsin or the Southern District of Iowa (Des Moines). Dated: May 11, 2016 Respectfully submitted, s/ Reynaldo A. Aligada, Jr. KATHERIAN D. ROE Attorney ID No. 214668 REYNALDO A. ALIGADA, Jr. Attorney ID No. 319776 Attorneys for Defendant 107 U.S. Courthouse 300 South Fourth Street Minneapolis, MN 55415 17