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July 5, 2017

Burglary defendant denied change of trial venue

Theodore Roosevelt Bailey, 62, of Capitol Heights, Md., contends Facebook comments and inaccurate news story would prevent a fair trial in Fauquier.
Generally, you cannot bring up other bad acts or charges, because the risk is it would unduly prejudice the jury.
— David W. Walls, assistant public defender
By .(JavaScript must be enabled to view this email address)
Staff Journalist
A Fauquier County Circuit Court judge last week denied a Maryland man’s request to move his high-profile burglary case elsewhere to ensure that he gets a fair trial.

Theodore Roosevelt Bailey, 62, of Capitol Heights, Md., faces felony charges of burglary and possession of burglary tools. The charges stem from the break-in at a home on Mount Airy Road west of Upperville around noon Wednesday, Feb. 8.

The defendant alleges harsh Facebook comments and an inaccurate Fauquier Times online article related to the case would prevent him from receiving a fair jury trial in the county, according to court documents.

Dozens of comments about the case appeared on the FauquierNow and Fauquier Times Facebook pages.

Judge Herman A. Whisenant Jr. on Thursday, June 29, concluded that it would be premature to change the trial venue before jury selection starts, Assistant Public Defender David W. Walls said.

But, Judge Whisenant indicated the issue could be revisited if it becomes difficult to empanel an unbiased jury, Mr. Walls said.

The trial will take place Aug. 17 and 18 in Warrenton.

Mr. Bailey faces 13 additional charges in Loudoun County, including six counts of burglary, six counts of grand larceny and possession of a firearm by a convicted felon.

He also faces charges in Spotsylvania, Clarke and Frederick counties. The defendant wants the court to prevent the Fauquier prosecutor from mentioning those charges or presenting related evidence or witness testimony in the context of the Fauquier case.

Judge Whisenant also denied that request. But, the judge will decide on a case-by-case basis during Mr. Bailey’s trial whether the prosecution can reference charges in other counties against the defendant, Mr. Walls said.

“Generally, you cannot bring up other bad acts or charges, because the risk is it would unduly prejudice the jury,” the public defender added.

Contending investigators had illegally searched and seized evidence from his Maryland home, Mr. Bailey wants the court to “suppress” such evidence.

Judge Whisenant postponed a decision on that matter because a schedule conflict prevented at Maryland investigator from attending Thursday’s approximately 30-minute hearing.

As of Wednesday, no new hearing date had been set to resolve the matter, Mr. Walls said.
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