Two surveys conducted for the defense suggest that nearly two-thirds of potential jurors in Stanislaus County already think Columbus Allen Jr. II is guilty, even though his trial in the slaying of a CHP officer is not slated to begun until September.
The surveys provide a foundation for a change of venue motion that Stanislaus County Superior Court Judge Hurl Johnson was scheduled to hear today, but that has been preempted by a defense request to disqualify Johnson, who has been assigned to the case for three years.
The death penalty case now is on hold until the court's presiding judge decides how to proceed.
"We just have to wait for notice from the court as to when we rally the troops again," said Chief Deputy District Attorney Alan Cassidy, the lead prosecutor.
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Allen, a 33-year-old Stockton man, is suspected of killing California Highway Patrol officer Earl Scott about 4:40 a.m. on Feb. 17, 2006. The slain officer was found on the edge of northbound Highway 99, just south of Hammett Road near Salida, clutching registration papers for a Nissan Maxima registered to Allen's wife, Bertera.
Details about the case come mainly from a transcript of a grand jury hearing that prosecutors held behind closed doors. According to government witnesses, cell phone records place Allen near the crime scene and Allen had gunshot residue on his hands and clothing hours after Scott was killed.
In open court, procedural hearings have been punctuated by Allen's behavior, as he has sparred with a string of defense attorneys, at one point announcing he would rather represent himself than let his lawyer call the shots. He has filed three claims alleging mistreatment in the county jail.
News stories about Allen's case often draw derogatory comments from readers who are able to post anonymous opinions at modbee.com. In court and in legal papers, defense attorney John R. Grele has argued that Modesto is too racially hostile for Allen, who is black, to receive a fair trial. Grele declined to comment for this story.
A challenge to the jury selection process last summer, when Allen's lawyers argued that minorities are underrepresented on such panels, came up empty. The judge said race is not a factor in the selection process and found no reason to proceed with further argument.
Now, the defense contends that Johnson is biased. The grounds for that argument were unclear, because Grele declined to comment and the latest motions in Allen's case were not available at the courthouse.
Eventually, Johnson or another judge will determine if the trial should remain in Modesto. To move the trial, a judge would have to be convinced that Allen cannot get a fair and impartial jury in Modesto, because of widespread publicity that is deemed inaccurate or inflammatory.
Venue changes are rare. The last case to move from Modesto involved Scott Peterson, whose Redwood City murder trial and conviction drew nationwide attention.
The district attorney's office opposes a move in Allen's case.
Edward J. Bronson of Chico, a jury consultant who has worked on cases involving the Unabomber, the Oklahoma City bombing and the San Francisco dog-mauling trial, conducted two surveys for the defense last year, contacting 400 potential jurors the first time and 200 the second time.
In the first survey, nearly 84 percent of people had heard about officer Scott's slaying, and nearly 61 percent of people said Allen is guilty. In the second survey, more than 84 percent knew about the case and nearly 65 percent said Allen is guilty, according to court records.
Bronson said he often recommends against venue changes and has done so in pending cases involving the deaths of CHP officers in El Dorado and Yolo counties. In Allen's case, he thinks a move has merit, particularly because the case has had continuous local coverage, but little attention elsewhere.
"You could send this almost any place but Stockton," Bronson said.
Bee staff writer Susan Herendeen can be reached at firstname.lastname@example.org or 578-2338.