A motion to remove 503 affidavits from evidence in the Kenneth H. Botham change of venue hearing next Monday was entered in Mesa County District Court Wednesday afternoon.
The effect of the action would be to limit substantially the evidence exhibit which Dist. Atty. Terrance Farina’s office has gathered to support its contention that the trial may be heard without prejudice by a Mesa County jury.
Law officers have gathered 503 affidavits supporting the view that a change of venue isn’t necessary.
Public Defender Robert Emerson, in filing for the change of venue – or court location – of the trial, has claimed it is impossible for his client to get a fair trial on four counts of first-degree murder.
“Misleading”
Emerson, in his motion, claimed that the manner in which the law officers solicited affidavits for the prosecution has been “misleading.”
He claims the manner in which the prosecution has acted has served to inflame and further prejudice citizens of Mesa County against the defendant and his lawyer and has served to inject improper and prejudicial considerations into the issues raised by the defense motion (for change of venue).
Emerson claims that the prosecution, in obtaining signatures, informed persons they contacted that if the trial is transferred to another county, Mesa County, and its taxpayers will incur additional, substantial expenses.
“Thus enforced, the prosecution would then solicit the prospective affiant’s signature,” according to the motion.
Improper affidavits
Emerson also contends that the “overwhelming number” of affidavits in the prosecution’s exhibit are improper because they “contain speculation, conjecture and conclusion which cannot be within the personal knowledge of the affiant and which are improperly included within the affidavit.”
The Public Defender claims that introduction of the affidavits in the hearing would deny the defendant his rights to due process, equal protection, fair and impartial trial, effective assistance of counsel and fundamental fairness guaranteed by the U.S. and Colorado constitutions.