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In an unusual move, two special prosecutors in Texas are seeking to transfer the aggravated perjury trial of Tom Coleman — the undercover law enforcement officer whose uncorroborated testimony convicted 39 of the 46 people arrested in the controversial 1999 Tulia drug bust — out of Swisher County. The state does not feel like a fair and impartial jury can be selected there, special prosecutors Rod Hobson and John Nation contend in a motion for change of venue filed on May 3 with the 64th District Court in Tulia. Prosecutors are authorized to seek a change in venue for a trial in a felony or misdemeanor case under Texas Code of Criminal Procedure Article 31.02. “I think it would be better for all concerned if [Coleman] were tried in some venue where there has not been so much news coverage,” says Nation, a Dallas solo. Tulia, located in the Texas Panhandle about 45 miles south of Amarillo, has been in the news since the July 1999 arrests of 46 people — most of them black — on drug-trafficking charges. In 2000, some Tulia residents began protesting the arrests and subsequent sentences — convictions which were based solely on Coleman’s testimony. Jeff Blackburn, an Amarillo solo, represented many of the people who had been arrested and worked with other attorneys from around the state and nation to exonerate the defendants. Acting on a recommendation by the Texas Board of Pardons and Paroles, Gov. Rick Perry pardoned 35 of the Tulia defendants in August. 2003. Dallas solo John Read II, who represents Coleman, says he’s opposed to moving the trial. If the state can’t get a fair trial in the county where it filed the charges, where can it get a fair trial? Read asks. Coleman faces three charges of aggravated perjury in connection with allegations that he lied while testifying during a March 2003 hearing before visiting Judge Ron Chapman. Coleman denies the allegations. At the hearing, the judge was considering the writ of habeas corpus applications of four Tulia drug defendants on remand from the Texas Court of Criminal Appeals. The indictment against Coleman, returned by a 242nd District Court grand jury in April 2003, alleges that Coleman made false statements under oath with regard to charges filed against him in 1998 in Cochran County for the alleged theft of gasoline from the sheriff’s department in that county. Read says the prosecution has to prove Coleman lied under oath. “We’re going to prove that he didn’t lie about squat,” Read says. Charges were never filed against Coleman in Cochran County, as far as Read knows, he says. Coleman’s trial on the perjury charges originally was scheduled to begin on May 24 in Tulia. On April 19, senior District Judge David Gleason of Amarillo, who presides over the case, granted a motion that Read filed for a continuance in the case. EXTENSIVE PUBLICITY In their motion for change of venue, Hobson and Nation cite the reasons they believe the perjury trial in State v. Coleman should be moved: extensive publicity about the drug cases; a substantial monetary settlement in civil suits stemming from the criminal prosecutions; the number of jury trials held on the drug charges; media comments made by elected officials of Swisher County; and the divisiveness of the issues presented by the cases. Newspapers around the United States published stories about the Tulia cases. Blackburn says nine jury trials were held in the wake of the sting operation Coleman carried out. Blackburn also represented the Tulia defendants in a civil rights suit, filed in the U.S. District Court in Amarillo, against cities, counties and individuals involved in the Panhandle Regional Narcotics Task Force, which oversaw the investigation of drug trafficking in Tulia. The settlements in Tonya White, et al. v. City of Amarillo, et al., which were finalized on April 30, total $6 million, he says. Several prosecutors from around the state say it’s unusual for the prosecution to try to move a trial. “It’s pretty rare,” says Sean Phelps, first assistant district attorney in Brazos County. But Phelps says he filed a change of venue motion in the 1990s while he was with the Texas office of the attorney general and was prosecuting a Dickens County commissioner in connection with a hit-and-run death. The commissioner’s trial was moved to Stonewall County, he says. “Usually it’s the defendant who wants to move a trial due to what he perceives is unfair publicity,” says Lubbock County District Attorney Bill Sowder. “I’ve been doing this 10 years, and I haven’t filed [a change of venue motion] yet,” he says. Williamson County District Attorney John Bradley says he has spent 20 years as a prosecutor and has never sought to move a trial. “Most of the perception is the feelings run against the defendant rather than the state because of any publicity,” Bradley says. Hobson, a Lubbock solo, declines comment about the reasons that he and Nation filed the motion in Coleman’s perjury case. “The motion just speaks for itself,” he says. Nation admits that it’s rare for prosecutors to file a change of venue motion. “But this is an unusual case,” he says. “We want to have a fair trial for everybody and not have extraneous factors coming into it.” Swisher County is sparsely populated, and a number of its residents served on one of the nine juries that convicted the drug defendants arrested as a result of the sting carried out by Coleman, Nation says. According to the Texas State Directory, the county’s population totals about 8,900. “You’re going to have many people who’ve formed strong opinions about the case,” Nation says. “It would be wasteful of everyone’s time if we were unable to pick a jury in Swisher County.” Anything surrounding the Tulia drug cases is still a touchy subject in Swisher County. After calls to various officials and community leaders for comment, only Commissioner Lloyd Rahlfs would speak on the record. He says he believes Coleman can get a fair trial in the county. He also says he is bothered by the outcome of the drug cases. The county commissioners court had to vote to release the Tulia defendants after Perry pardoned them. “One of the hardest things I had to do was to vote to release everybody who had pleaded guilty,” Rahlfs says. Nation says Swisher County already has had a significant amount of publicity because of the drug cases and he doesn’t believe it’s fair that the county has to face more publicity over Coleman’s trial as well. “It’s going to be a doozy; it’s going to be a circus,” Nation says of the upcoming trial. If Gleason finds that Coleman can’t get a fair trial in Swisher County, Read says he will oppose moving the trial any farther than one of the adjoining counties: Randall, Briscoe, Castro or Hale. “I’m not going to agree to a change of venue to San Antonio, Dallas or Houston,” Read says. Under Chapter 31 of the Code of Criminal Procedure, any order changing venue beyond a county in an adjoining judicial district “shall be grounds for reversal” if the defendant shows that such a transfer isn’t necessary. However, George Dix, a University of Texas School of Law professor who teaches criminal law, says state law also provides for judges to change venue on their own motions. The authorization for judges to take action on their own motions is in Code of Criminal Procedure Article 31.01. In its 1987 decision in Aranda v. State, the Court of Criminal Appeals upheld then-49th District Judge Ruben Garcia’s decision to transfer from Webb County on the Texas-Mexico border to Victoria County on the Gulf Coast the trial of a capital murder case stemming from the slaying of a police officer. According to the CCA’s opinion, written by then-presiding Judge John Onion, Garcia denied the state’s motion for a change of venue and transferred the case on his own motion. Given the amount of publicity about the case, the move was appropriate to give both sides a fair trial, Onion wrote for the court.

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