Attorneys: Move ‘Scotty’ murder trial

Lawyers of defendants say local jurors won’t be impartial

Attorneys for the man and woman accused of the brutal torture and murder of 3-year-old Scott “Scotty” McMillan want the trial of their clients moved from Chester County, or to have the jurors in the capital case chosen from another locale and brought here, saying the extensive pre-trial press and social media accounts of his death have forever tainted the local jury pool against them.

The requests come among a multitude of pre-trial motions filed by both defendants and the prosecution in the case, which began two years ago with the discovery of McMillan’s lifeless body on Nov. 4, 2014, in the home he shared with his mother, brother, and the man who authorities said assaulted him repeatedly over the course of some weeks.

In pre-trial motions filed recently with Common Pleas Judge William P. Mahon, defense attorney George S. Yacoubian Jr. of Radnor, who represents Gary Lee Fellenbaum, said that his client’s constitutional right to a fair trial had been hopelessly compromised by the pre-trial publicity the case had received in newspaper articles, television broadcasts, and internet posting.

“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.

Laurence Harmelin of West Chester, a veteran county defense attorney representing Jillian Tait, McMillan’s mother and Fellenbaum’s girlfriend, also filed a motion requesting the trial be moved.

Harmelin made mention of almost one dozen articles about the McMillan murder and the upcoming trial in the Daily Local News, as well as an online poll that appeared in 2015 asking “Death Penalty for Couple Who Tortured Boy?” He noted that many of the stories included graphic descriptions of McMillan’s death and the allegations against Tait.

“The wide dissemination of such gruesome, sympathy-engendering, frontpage news stories, Facebook articles and internet polls, has created a substantial likelihood that a fair trial cannot be provided, as it will be impossible for the defendant to select a fair and impartial jury of citizens from Chester County,” Harmelin wrote.

Both attorneys ask Mahon to either move to trial to another county in the state, or in the alternative to bring residents of another county here to hear the case.

A hearing on that motion, as well as the three dozen or more others that were filed by the deadline Mahon imposed earlier of Nov. 1, will be held on Jan. 5, 2017. The trial is scheduled to start April 3, 2017, with jury selection.

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 3-year-old Scotty and his older brother, now 8, and kept him from medical care in the West Caln trailer home they shared with Fellenbuam’s wife, Amber Marie Fellenbaum, and the Fellenbaum’s young child — 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 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, Cumberland County in the mid-1980s.

The infamous Johnston Brothers murder trials were also heard by out-of-county juries in the early 1980s.

Yacoubian, the private attorney who was hired by Gary Fellenbaum’s family to replace the county’s Public Defender’s Office over the summer, has made it clear in his motions that he is very concerned about the way the jurors are given the evidence in the case.

In his motions, he asks Mahon to forbid all “in-life photographs” of McMillan that might prove inflammatory to the jurors; shield them from knowing beforehand what case they might be hearing; and order that there be strict rules about behavior by those attending the trial, including no talking or shaking heads during testimony, or displaying signs, banners, or clothing that might be prejudicial, both in the courtroom and outside the courthouse.

For its part, the prosecution also filed motions in the case last week. In them, they ask Mahon to allow a computer simulation of the case to be used in opening statements, and to have McMillan’s older brother, who is expected to testify, give his testimony outside the presence of Fellenbaum. First District Attorney Michael Noone, who is leading the prosecution, also asked Mahon to allow an unidentified “support person” to be with the older child when he testifies.

The Daily Local News is not reporting the name of the older brother.

Gary Fellenbaum, 25, Tait, 32, and Amber Fellenbaum, 25, all worked at the Walmart in western Chester County in the summer and early fall of 2014. Tait moved in with the Fellenbaums at a trailer home on Hope Lane sometime in September, 2014.

Beginning in October 2014, according to the allegations set forth in the case against the Fellenbaums and Tait, Gary Fellenbaum began physically abusing both of Tait’s sons. The abuse included punches and beatings, but also whipping with a crudely fashioned “cat o’nine tails,” and tying the boys to chairs or hanging them upside down by their feet.

Allegedly Fellenbaum’s beating of Scott McMillan escalated to the point where the boy could not hold down his food. Angered, Fellenbaum allegedly punched him in the face so hard he fell out of his chair, and later punched him in the stomach. The boy began vomiting and later passed out. Although Fellenbaum and Tait tried to revive him, they left him alone in a bedroom for several hours before finding him completely unresponsive in the evening of Nov. 4, 2014.

Both allegedly gave incriminating statements to police investigators after their arrests. Yacoubian and Harmelin have asked Mahon, in their motions, to suppress those statements, saying they were given under duress.

Amber Fellenbaum, who did not participate in the alleged abuse, called 911. She is not charged with murder, but rather with endangering the welfare of children and recklessly endangering another person.

“The wide dissemination of such gruesome, sympathy-engendering, front-page news stories, Facebook articles and internet polls, has created a substantial likelihood that a fair trial cannot be provided, as it will be impossible for the defendant to select a fair and impartial jury of citizens from Chester County.” — Laurence Harmelin, defense attorney