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Arguments loom for Baker trial move

July 29, 2011

Elisa Baker’s attorney wants her trial moved outside Catawba County, but the state will argue on Monday that a fair trial can be found here.

Superior Court Judge Timothy Kincaid will hear oral arguments on Monday about Elisa’s trial being moved outside the county.

Elisa’s attorney, Scott Reilly, says the woman accused of murdering and dismembering her 10-year-old step-daughter, Zahra, cannot receive a fair trial in Catawba County because of prejudicial publicity surrounding the case.

Catawba County District Attorney Jay Gaither disagrees.

“We feel that the defendant can get a fair trial here,” Gaither said. “It’s not that we feel she cannot get a fair trial elsewhere, but we think a fair and impartial trial can be held in Catawba County.”

“I’ve lived here all my life, and our residents strike me as the type of people who would be able to put aside the opinions others hold and media coverage to be fair to anyone charged with a crime," he said.

Reilly filed a change of venue motion earlier this month requesting his client’s trial be moved outside the county. In his motion, Reilly said newspaper and television coverage of the Zahra Baker case has made many citizens – potential jurors – biased.

“The pretrial publicity in this case has been such that the entire county is ‘infected’ with prejudice,” according to the motion. “This is sufficient to show that a fair trial cannot be obtained in Catawba County or the surrounding area.”

On Monday, Kincaid will hear arguments from both sides and possibly decide whether to move the trial elsewhere. The judge could also continue the hearing to another date and grant Reilly’s alternate request for an evidentiary hearing on the matter.

f Kincaid upholds the defense’s motion and grants a change of venue for the trial, it may be in a county within a prosecutorial district that touches the 25th. That would lend itself to at least 15 counties in five districts that adjoin Catawba, Caldwell and Burke, according to provisions set in N.C. General Statute 15A-957.

The statute reads, “If, upon motion of the defendant, the court determines that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either:

“(1) Transfer the proceeding to another county in the prosecutorial district as defined in G.S. 7A‑60 or to another county in an adjoining prosecutorial district as defined in G.S. 7A‑60, or (2) Order a special venire under the terms of G.S. 15A‑958.” The special venire refers to bringing in jurors from another county if the court determines the action to be necessary for a fair trial.

The trial could be held in the 23rd (Ashe, Alleghany, Wilkes, Yadkin), 24th (Watauga, Avery, Mitchell, Yancey, Madison), 29A (McDowell, Rutherford), 27B (Cleveland, Lincoln) or 22A (Iredell, Alexander), according to a list of prosecutorial districts shown on the North Carolina Court System’s web site.

“We will be prepared to prosecute in whichever venue the judge decides to hold the trial, whether here in the 25th or somewhere else,” Gaither said.

Reilly indicated that Kincaid could use his discretion and move the trial to any county in the state, and he indicated media attention in surrounding counties has been pretty much the same as it has been in Catawba County. If a change of venue is granted, Reilly said all pre-trial motions and proceedings still could take place in Catawba County.

Both attorneys are not sure if the judge will rule on the motion during Monday’s hearing.

“This is just an oral argument,” Reilly said. “I’m not sure if he will make a ruling, take the matter under advisement or continue it until the September hearing.”

Elisa’s arraignment has been set for Sept. 12.

The second-degree murder and obstruction of justice charges against Elisa have been consolidated and will be tried together, though Gaither indicated the state intends to try those charges after Elisa has been prosecuted on other lower-level felony charges she faces.

He also said scheduling for a trial could be based on what happens during the change of venue hearing. A decision by Kincaid to keep the trial in the 25th district would allow greater flexibility, but more legwork would be required if the trial is moved to another district because there are additional offices and agencies to work with in terms of scheduling.

The arraignment will come less than a week after Elisa is slated for an appearance in federal court in Statesville on Sept. 6 for drug trafficking charges.

She was indicted by a federal grand jury in May and faces a total of seven counts that could bring a prison sentence of up to 140 years if she is convicted.

The indictment alleges that from 2006 to October 2010, Elisa conspired with others to distribute and possess with intent to distribute the controlled substances oxycodone, hydrocodone and alprazolam. The indictment also alleges that she distributed and possessed with intent to distribute those same controlled substances during the same period of time.

The indictment also indicates that Elisa maintained residences in Granite Falls, Hudson and Hickory for the purpose of distributing oxycodone, hydrocodone and alprazolam. Elisa pleaded not guilty to the federal charges in early June.

The Observer News Enterprise staff writer Nash Dunn, Lenoir News-Topic editor Nathan Key and The Associated Press contributed to this report.

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