DETROIT (WXYZ) - The defense attorneys in the Kilpatrick Corruption Case are outraged – asking the judge to take the trial out of state.
"We can't get a fair trial here in Detroit. It's clear as day," said Mike Rataj.
Rataj and the rest of Bobby Ferguson's defense team are calling on Judge Nancy Edmunds to move the Kilpatrick Corruption trial to another state.
The reason: the intense media coverage of the case – especially Monday's article in the Detroit Free Press about Ferguson's other federal case that ended in a mistrial in earlier this summer.
The article did not name the juror, but gave details about an African American woman whom the paper described as the holdout who refused to convict Ferguson. The paper reported that she didn't disclose her husband's past criminal conviction, or a bankruptcy filing. Rataj is calling it intimidation of African American jurors, a move to keep them from wanting to serve on the jury.
"What the Free Press is saying, is if you hold out, or if you even have the temerity to find these people not guilty, we are going to hunt you down, we are going to expose you, we are going to investigate you, we are going to harass you," said Rataj.
Ferguson's lead defense attorney, Gerald Evelyn, told Judge Edmunds that based on the article, "it's clear to the jurors there will be consequences to a not guilty verdict" and "I think it's impossible for us to get a fair trial." Evelyn was visibly angry as he asked the judge for a change of venue.
Kwame Kilpatrick's attorney Jim Thomas called the article a "shot across the bow" for attacking the credibility of jurors. Thomas told the judge he is concerned the former mayor can't get a fair trial, and called the comments left by people on the Detroit News and Free Press websites "a clear and present danger to his client and his family."
Rataj says he's also concerned about his client's safety, because of comments posted online.
"They're there for everybody to read: Kwame Kilpatrick should be hung at Hart Plaza, have a public lynching – like we're in Mississippi in 1920? And we should wear bullet proof vests to court," said Rataj referring to the reader comments online.
Kilpatrick, his father Bernard Kilpatrick, Ferguson, and former water department chief Victor Mercado are all charged with racketeering, accused of running a criminal enterprise.
Detroit Free Press First Amendment attorney Herschel Fink called Thomas's comments hypocritical – especially considering the former mayor recent book tours and press conference.
"There was no intention to fire any shot across the bow… and if there was any shot, I'd like to hear the Kilpatrick defense team talk about their own shots to influence jurors," said Fink.
Fink points out, reporters are not going out and chasing down jurors in the current case and that the jury selection process is supposed to be open and transparent to the press and the public.
"Transparency in the criminal justice system is essential to public confidence and the integrity and fairness of the process," said Fink. "When things go on behind closed doors, that's when rumors begin, that's when the public loses confidence."
The judge is trying balance public's right to know what happens in public courtrooms with the need to keep juror identities secret their own privacy.
Defense lawyers will be filing motions for a change of venue to take the case to another state where there has been less pre-trial publicity. The judge will hear their arguments on Thursday, which pushes opening statements back to Friday.
Meanwhile, at least 60 jurors qualified to stay in the jury pool, plus a few extras if they're needed. The lawyers will start exercising their peremptory challenges on Wednesday.
The first potential juror of the day was a well informed retired businessman who was one of the most talkative people yet in the 8 days of jury selection. The defense seemed concerned about his comments on his questionnaire that said quote "Kwame was not a good mayor for Detroit." And when he was asked what he knew about Ferguson's other federal trial earlier this year, the man said "he felt Ferguson was guilty" because he had heard that all but one of the jurors in the case wanted to convict the former city contractor.
"There's another stealth juror for you," said Rataj.
Despite those statements – the juror insisted he could weight this case only on the facts presented in court – and he stayed in the jury pool.
"The gentleman sounds like a problem for the defense -- really a problem for the system, period. If he already has a preconceived notion of what took place in the last case based upon media reports – he wasn't in the jury room, he doesn't know what the vote was," said Channel 7 Jury Selection Legal Analyst Anthony Chambers, who did represent one of the defendants in the Garden View Estates Ferguson case.
Another potential juror said she had once supported Kwame Kilpatrick and she even received a certificate from him after she volunteered
as an Ambassador for the Super Bowl. While she may have sounded like slam dunk for the defense, she did agree with Kilpatrick's lawyer who asked whether she could convict his client if the government proved it's case beyond a reasonable doubt. She said could.
"He wanted to know if she would be fair to both sides – both the prosecution and the defense, not just the defense… I also would suggest that perhaps what Jim Thomas is doing, is not giving the government a reason to excuse her," said Chambers.