Prosecution: Don’t move ‘Scotty’ trial
WEST CHESTER >> Prosecutors in the murder case involving 3-yearold Scott “Scotty’ McMillan have asked the judge overseeing the trial of the man and woman accused of the crime to deny a motion to move the trial or jury selection from Chester County.
In one of a number of motions filed last week in the cases of defendants Gary Lee Fellenbaum and Jillian Tait, McMillan’s mother, the attorneys argue that the pre-trial publicity surrounding the case has not been so extensive that it would be impossible to pick an impartial jury in the case, in which the District Attorney’s Office is seeking the death penalty.
“The issue for the court’s consideration is not whether prospective jurors have heard about the case or even if they formed an initial opinion based on news coverage, but whether a juror could set aside those initial impressions and render a verdict solely based on the evidence presented,” the motion states, citing case law.
The prosecution team of First Assistant District Attorney Michael Noone, and Deputy District Attorneys Deborah S. Ryan and Michelle E. Frei said that it should be up to the judge in the case, Common Pleas Judge William P. Mahon, to decide whether the prospective jurors called next year “have formed a fixed and unalterable opinion about” the pair’s guilt. Both defense attorneys had asked Mahon earlier this month to move the trial to another county or to bring in jurors from outside Chester County to hear the case.
The DAs contended that the defendants had not shown any evidence of jurors being tainted, only arguments that there had been stories in the media about McMillan’s death. In addition, they said that despite early publicity about the case — which county District Attorney Thomas Hogan labelled “an American horror story” at a press conference — “there has been little media coverage of the incident over the past two years.”
Mahon has yet to rule on any of the multiple pre-trial motions both sides have filed in the case. He is expected to convene hearings on the motions in January.
Fellenbaum, 25, and Tait, 32, are both charged with first-degree murder, third-degree murder, criminal conspiracy, endangering the welfare of children, possess-
ing instruments of crime, aggravated assault, simple assault, and recklessly endangering another person in the November 2014 death of McMillan. Authorities contend that McMillan and his older brother were beaten severely and tortured in the weeks leading up to the 3-year-old’s death.
Amber Fellenbaum, Gary Fellenbaum’s wife who lived with the couple in a trailer home in West Caln, is also charged in the case, but only with endangering children and reckless endangerment.
She called 911 after finding McMillan unresponsive in the home.
Earlier this month, defense attorneys Laurence Harmelin of West Chester, who represents Tait, and Gary Yacoubian Jr. of Philadelphia, Fellenbaum’s attorney, asked Mahon to move the trial because they contend that no fair jury could be found here because of damning press and social media accounts of the killing.
“The self-evident conclusion is that this county has been so saturated with the facts underlying this case that it is impossible for defendant to receive a fair trial before a jury of impartial
persons who learn of the case only through the evidence properly admitted during trial,” Yacoubian wrote in his request for a change of venue.
Mahon has reportedly expressed concern privately about the jury selection process in the case of both Fellenbaum and Tait, who at this point will be tried together. Not only is the trial one in which the prosecution is seeking the death penalty against both defendants, which would require extensive questioning of each panelist to see whether they could impose a death sentence, but it also has been the subject of much discussion in the
media, both locally and nationally.
In addition, the allegations themselves that have been made against both defendants — that they participated in the beating and torture of the two children could make it extraordinarily difficult to impanel a jury made up of people who declare they could judge the case fairly on the facts alone and not on sympathy for the victims.
Mahon is reportedly considering calling in dozens more prospective jurors from the across the county than the 124 he had summoned in the last death penalty case over which he presided, that of
Coatesville chainsaw killer Laquanta Chapman. He has also noted that extra alternate jurors might need to be empaneled because of the possibility that some jurors chosen might not be emotionally able to complete the trial.
The last time a trial for a county crime was tried out of the county was reportedly the escape case involving then-convicted murderer Nicholas Yarris, who jumped out of a constable’s car in West Whiteland and fled while being transported from state prison to Delaware County. That was held in Carlisle in the mid1980s.
The infamous Johnston Brothers murder trials were also heard by out-of-county juries in the early 1980s.
The motions filed this month also ask Mahon to determine whether Gary Fellenbaum and Jillian Tait will be tried together or separately. Yacoubian has asked that the two have a joint trial, while Harmelin and the prosecution want them tried separately. If Mahon rules in favor of separate trials, Fellenbaum would be tried first, starting in April 2017. Tait would then be tried at a later date.