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Jeffrey Toobin: Change of venue possible in Avila case

Jeffrey Toobin

(CNN) -- Alejandro Avila was charged this week with kidnapping, sexual assault and murder in last week's death of 5-year-old Samantha Runnion of Southern California. Avila has entered innocent pleas. On Tuesday, the chief prosecutor in the case -- Orange County District Attorney Tony Rackauckas --dismissed concerns that pre-trial publicity would taint the jury pool. (Full story)

CNN legal analyst Jeffrey Toobin spoke with CNN anchor Paula Zahn about the case prosecutors are attempting to build against Avila.

PAULA ZAHN: Let's go back to the issue of the district attorney deciding whether to go for the death penalty. Based on the circumstances of this murder, what kind of decision do you think he'll end up making?

JEFFREY TOOBIN: If you believe in the death penalty, if not in this case, when? The case is so horrific and it fits within the California statute. One of the special circumstances that's required was the murder ... [be] committed at the same time as a kidnapping or at the same time as a sexual assault. According to these charges, it was.

So it fits directly within the California death penalty statute. There don't appear to be, at least based on what we know now, any mitigating circumstances, some sort of mental retardation or some sort of abuse that Avila suffered. It seems like a classic textbook case for the death penalty.

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ZAHN: Although I asked the district attorney this morning what would hold you back from going for the death penalty and he didn't really answer the question in a specific way, but said, 'you know, this is what I need to analyze, I need to talk to family members and I need to go through this two week long process that you have to go through in the county.'

TOOBIN: Right. ... I mean, there are situations like family members sometimes have moral or religious objections to the death penalty. And that is something a prosecutor can take very seriously. If that's the case here -- I have no reason to think it is -- then he might not go forward.

But certainly based on all the evidence that we've seen, it seems like it's a pretty straightforward decision.

ZAHN: The district attorney also told me this morning that he believes that he can get a fair and impartial jury. However, when I asked him if he expects there to be a motion for a change of venue, he said absolutely.

TOOBIN: You know, changes of venue have been such incendiary topics, in California particularly. Remember the Rodney King case, which was moved from Los Angeles to Simi Valley, from a minority area to a white area. The dog mauling case was moved from San Francisco to Los Angeles.

Judges do move cases here. This really might be one where a change of venue motion might be successful because, I mean, the publicity nationwide has been enormous, but in Orange County, Southern California, it's been even more.

ZAHN: But come on, where are you going to go in California where people haven't been very affected by this crime in some way?

TOOBIN: Well, it's not, it's not a question of -- people don't have to have been completely ignorant of the crime. It's just the emotional intensity. You know, I think the attention in San Francisco has been less than in Orange County. It's not invisible there, but I mean that's certainly an argument the defense will make.

ZAHN: When you have the DA so publicly saying that he is confident that he will get a guilty verdict, what does that signify to you? Is that over-confidence on his part?

TOOBIN: You know, the rules about what DAs are ethically allowed to say or not are pretty flexible. The cops and DAs here are pushing it pretty far. I mean, they are indicating extreme confidence. Usually the courts don't ...

ZAHN: They think they have a good case.

TOOBIN: They do, they do. But prosecutors never bring a case unless they think they have a good case. And the sort of advertising that they're doing is ethically close to the line. I think it's permissible but, you know, it's, it is an indication that they're very confident.