An attorney who represents one of accused teens involved in the attack on West Virginia University sophomore Ryan Diviney may request the trial be moved to another district due to public attention.
One of the accused teens, Austin Vantrease, and his attorney, Jim Zimarowski, plan to file a motion for a change of venue, said Ken Diviney, Ryan's father.
Ryan was attacked outside the Willey Street Dairy Mart Nov. 7 at 3:10 a.m. by Jonathan May, 18, and Vantrease, 18, of Newark, Del. The two teens were charged with malicious assault in connection with the beating, which left Ryan in a coma.
"My understanding is this is a state charge, so it must happen in West Virginia. Perhaps we need to charter busses," Ken said. "The overwhelming approach of everyone is ‘they can run, but they can't hide.'"
Case law states a defendant must show good cause for a change of venue, said Bader Giggenbach, an attorney who specializes in criminal defense.
Good cause means proof the defendant cannot get a fair trial in the county where the offense occurred because of the existence of a local hostile sentiment against the defendant, he said.
"In this country you are entitled to a fair and impartial jury," Giggenbach said. "If you can't get 12 people who can sit fairly because they have preconceived notions, then it makes sense to have trial held elsewhere."
Giggenbach said jury bias is normally tested using a poll of community members to see how many know about the case.
The community's perception of the horrific set of facts could warrant a change of venue, he said.
"You never know until you get in there and pick a jury just how many people know about a case," he said.
Last week, Vantrease and May's attorneys asked the court to move the trial date from March 16 to July 16.
The trial postponement was granted because the attorneys requested time for review of medical records provided by the state, Ken said.
Monday, Ken posted an update on Ryan's health to the Facebook group, Come Together For Ryan Diviney.
The group was established to give updates on Ryan's condition to his friends and family.
It has been one month since Ryan has had a "storming episode," Ken said in the update.
"He really looks great with the weight coming back on and his body slowly relaxing," he said. "We want him to wake so badly and see that smile again."
Ryan used to suffer from episodes where his brain misfired causing his body to go into shock but has been responding better since being moved to his home in Virginia, Ken said.