Pros­e­cu­tion: Don’t move ‘Scotty’ trial

Daily Local News (West Chester, PA) - - FRONT PAGE - By Michael P. Rel­la­han mrel­la­han@21st-cen­tu­ry­ @Ch­escoCourtNews on Twit­ter

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.

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