July 29, 2008

Doc Wants Change of Venue for Trial

By Mark Stodghill, Duluth News-Tribune, Minn.

Jul. 29--The defense attorney for a Duluth physician accused of sexually assaulting a female patient presented the court with 29 exhibits of newspaper stories and five exhibits of TV coverage of Dr. Javier De La Garza in arguing that his client can't get a fair trial in Douglas County because of the pretrial news coverage.

De La Garza, 52, a gastroenterologist with St. Luke's hospital, is charged with third-degree sexual assault, a felony. He is accused of having sexual intercourse with a patient without her consent on her parents' boat while docked at Barker's Island Marina in September 2006. According to the complaint against De La Garza, the patient was giving him a tour of the boat when he suggested giving her an exam. They went into the boat's cabin area, where the assault occurred, the complaint said.

The Douglas County district attorney's office had sought to admit testimony from the alleged victim and five other female patients of the defendant, who accused him of touching them inappropriately in a sexual manner while they were being treated by him at his office or in the hospital.

The other women's testimony was presented during hearings in Douglas County Circuit Court in February and May. De La Garza has not been charged with sexually assaulting any of the other women. Four of the women have brought civil lawsuits against the doctor claiming he engaged in harmful, offensive and illegal sexual contact with them with no reasonable medical purpose. They allege they suffered and continue to suffer physical pain, humiliation, mental anguish, anxiety and emotional distress.

Douglas County Circuit Judge Michael Lucci found that the relevance of the other women's testimony "does not measure up to any level near that of the danger of unfair prejudice that would result from its admission" and ruled earlier this month that the women's testimony not be admitted as evidence at De La Garza's trial.

"My real overriding fear, I guess, for my client is that the most recent articles in the paper referenced the other acts evidence being denied [admission at trial] by the court," Superior defense attorney Rick Gondik told the court Monday in arguing that the case not be heard by Douglas County jurors. "Obviously, the defense is pleased with that ruling. But the defense is also of the mind that a lot jurors think where there's smoke there's fire, and if they have evidence of five other allegations being made they would tend to be more leaning to the state and a finding of guilt."

Gondik wrote in his motion to have jurors outside Douglas County hear the case: "The pretrial publicity in this case and editorial comment, its quantity, frequency, prominence, content and details have so prejudiced the defendant's right to secure a fair and impartial trial as to require a change in the place of trial by empanelling a jury from another jurisdiction."

Gondik cited case law and said for the defense to succeed on its change of venue motion, it needn't show actual prejudice in the pretrial news coverage. The defense must only show that there is a reasonable probability of prejudice, he said.

Lucci told the parties that he could not overlook the fact that there has been extensive pretrial news coverage of the case. "And a good part of it relates to evidence which this court has decided is not admissible," he said.

Outside the courtroom after the hearing, Gondik said he has no preference as to whether Douglas County court personnel travel to another county to try the case or whether jurors from another county are brought to Superior to hear the case. He simply wants the jury to come from outside an area that receives newspapers or broadcast reports from Duluth and Superior.

Assistant Douglas County District Attorney James Boughner said the state is prepared to go to trial, but he would leave it "to the sound discretion of the court" whether to grant the defense's motion to have an outside jury hear the case.

If Lucci doesn't grant the change of venue motion, the trial is scheduled to start Aug. 11 in Superior. If he grants the motion, the trial will have to be rescheduled. He told the parties that he hopes to issue his ruling by the end of the week.

MARK STODGHILL covers public safety and courts. He can be reached weekdays at (218) 723-5333 or by e-mail at [email protected]


To see more of the Duluth News-Tribune, or to subscribe to the newspaper, go to http://www.DuluthSuperior.com.

Copyright (c) 2008, Duluth News-Tribune, Minn.

Distributed by McClatchy-Tribune Information Services.

For reprints, email [email protected], call 800-374-7985 or 847-635-6550, send a fax to 847-635-6968, or write to The Permissions Group Inc., 1247 Milwaukee Ave., Suite 303, Glenview, IL 60025, USA.