Noting that even high-profile cases like Watergate were not relocated, federal prosecutors argued Wednesday that a fair and impartial Orange County jury could be found for the trial of former Sheriff Michael S. Carona, despite pretrial publicity including antics by a pair of Los Angeles radio hosts.
The government filed a motion in response to a request by Carona's attorneys to move his corruption trial out of Southern California, in part to increase the odds of finding jurors who have not been tainted by the daily commute-hour banter of "The John and Ken Show" on KFI-AM (640).
"The United States Constitution, Federal Rules of Criminal Procedure and the courts have established that trials, absent extraordinary circumstances not present here, are to be conducted in the district in which the crimes occurred," prosecutors wrote. The defendants "have not and cannot come anywhere close to demonstrating the type of extreme circumstance that is essential if they are to defeat the presumption that venue is appropriate in this district."
Carona's lead attorney, Brian A. Sun, has said the radio-show commentary has been so inflammatory and repetitive that it would be extremely difficult for Carona to receive a fair trial within KFI's considerable reach.
Sun could not be reached Wednesday.
The change-of-venue motion is among several still pending before U.S. District Judge Andrew J. Guilford. Carona is scheduled to go on trial Aug. 26 on criminal charges that he misused his office to enrich himself and others, including his wife and former mistress. All three have pleaded not guilty.
Last week, Guilford dealt a blow to Carona's defense by ruling that jurors could listen to secretly recorded conversations during which Carona and former Assistant Sheriff Don Haidl allegedly plot to cover up illegal cash payments and gifts.
Guilford also denied Carona 's motion to dismiss the six felony charges against him, including two witness-tampering counts that accuse Carona of trying to dissuade Haidl from testifying before a grand jury.
The change-of-venue motion was filed under seal, but in a ruling made public Wednesday the judge denied a defense request to keep it sealed.
In the motion, Carona's attorneys contend that potential jurors have been exposed to "toxic publicity," a "barrage of inflammatory publicity" and "prejudicial newspaper articles," according to prosecutors.
The defense team has taken particular aim at radio hosts John Kobylt and Ken Chiampou, who began reading portions of the Carona-Haidl transcripts during a segment of their show called "Taint the Carona Jury Pool."
The hosts have portrayed Carona and Haidl as "Sopranos"-style wiseguys scheming to deceive prying FBI agents -- and coached listeners to lie to get onto the jury by asserting in court that they don't listen to the program.
In their opposition brief, prosecutors said they did not approve of the radio hosts' antics and acknowledged that justice might have been better served had listeners not been urged to lie. But prosecutors argue that such statements have been made on only "two occasions over a six-month period," not "repeatedly" as Carona's lawyers contend.
The government also contends that the effect of the show has been greatly diminished now that the judge has ruled that the secret recordings can be played during Carona's trial.
In support of their arguments, prosecutors cited several cases for which venue changes were denied despite widespread pretrial publicity, including Iran-Contra, the Oklahoma City bombing and Watergate, which required a court to find jurors who had not heard the Watergate tapes.