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Change of venue is a rarity in San Francisco Superior Court. It’s even more unusual when a defendant hasn’t asked for it. David Lee, one of three cops facing assault-related charges stemming from a 2002 street brawl, has been unsuccessful in past attempts to be tried separately. So when Judge Kay Tsenin granted his two “Fajitagate” co-defendants the change of venue they were seeking last week, Lee’s case got lumped in despite his lawyer’s objections. Now Lee’s attorney says he’ll file a formal objection, probably in the form of a motion to sever, in order to keep his case in San Francisco. “I want to be tried quickly, I want to be tried here,” said Mark Nicco, a San Francisco solo. Nicco’s already tried to sever Lee’s case twice, to no avail. The first time, he says, he argued Lee shouldn’t have had to sacrifice his right to a speedy trial while co-defendants Alex Fagan Jr. and Matthew Tonsing sought more time to prepare a change-of-venue request. Nicco asked for a separate trial again after Fagan Jr. received another round of negative publicity in March. The San Francisco Chronicle, among others, widely reported Fagan Jr.’s arrest at an Arizona hotel for alleged assault. After that, Nicco argued Lee would be prejudiced by association. James Collins and Freya Horne, who represent Fagan Jr. and Tonsing, asked in July to move their trials to another county. “Extensive pretrial publicity renders it unlikely that defendants will receive a fair trial in San Francisco,” their motion said. The media — which widely reported the allegation that Fagan Jr. started the November 2002 fight by demanding one of the two civilians involved hand over his steak fajitas — “has dubbed this action ‘Fajitagate,’ a title which is now permanently imbedded in the public consciousness,” says the motion for Tonsing and Fagan Jr. Assistant District Attorney David Merin acknowledges the case has gotten a lot of press. But he argued against the change of venue, and contends Collins and Horne did not adequately show that potential jurors would be unable to set aside any preconceived notions. When Judge Tsenin decided Friday that all three defendants should be tried in another county, Nicco says he objected to her decision to include Lee. “It’s totally twisted,” Nicco said. “Change of venue is the exception. It’s hardly ever granted. � So why should my guy get the exception when he’s not asking for it?” Lee, who recently lost his job with the San Francisco Police Department, wants to get the trial behind him, Nicco said. Holding the trial somewhere else will take longer, and “nobody’s going to hire somebody pending their felony trial,” he added. Nicco also argues that most of the negative publicity has concerned Fagan Jr. If Lee were tried separately, there would be no need for him to go to another county to get a fair shot, Nicco said. But the DA appears unlikely to back Lee’s request to keep his trial here now. Prosecutors opposed both of Nicco’s prior attempts to sever Lee’s case. And Merin says prosecutors still want the defendants tried together for the sake of judicial economy. Two Bay Area jury consultants say they’ve never seen a case where co-defendants didn’t agree on whether they wanted their trials moved. San Francisco Superior Court Executive Officer Gordon Park-Li said he can only recall one other case that’s had a change of venue in his 32 years at the court: the 2002 trial of Marjorie Knoller and Robert Noel, whose dogs had attacked and killed their neighbor, Diane Whipple. But in that case, both defendants asked for a change of venue. Karen Fleming-Ginn, president of Verdix Jury Consulting Inc. in Walnut Creek, said she hasn’t seen a case where defendants differ on whether they want their trial moved. “I’ve dealt with tons of cases,” said Fleming-Ginn, who worked for Noel in the dog mauling trial, “a lot of change-of-venue motions, but I haven’t seen a situation where one [defendant] wants to stay and the others want to go.” Nor has Howard Varinsky, who worked for prosecutors in the San Francisco dog mauling case as well as this year’s Martha Stewart and Scott Peterson trials in New York and California. But then, high-profile cases don’t often have as many as three co-defendants, said Varinsky, of Emeryville’s Varinsky Associates. “It’s usually a single defendant or a double defendant tied-together case.” To minimize any delay in Lee’s trial due to the change of venue, Merin said, “we’ll do everything we can possibly do locally.” Tsenin is scheduled to begin hearing pretrial motions Friday in San Francisco. Collins, Fagan Jr.’s lawyer, estimated it would probably be several more weeks before the cases move to another county for jury selection. Tsenin has recommended some locations to the Administrative Office of the Courts, which checks to see which can handle the trial, though the trial judge usually makes the final pick, said AOC spokeswoman Lynn Holton. The short list includes Sacramento, San Joaquin, Santa Barbara and San Luis Obispo counties.

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