Martin Miller is led away after being convicted of his wife's murder in Judge Paula Martin's courtroom.

The attorney of a Lawrence man accused of his wife’s 2004 homicide argued in Douglas County District Court Monday that his client’s trial should be moved to a different venue following 10 years of publicity in the case, court documents said.

A Douglas County jury convicted Martin Miller, 56, in 2005 of first-degree murder in the July 28, 2004, death of his wife, Mary E. Miller, 46, at the family’s central Lawrence home. Prosecutors accused Miller, a former Lawrence carpenter and Christian school leader, of strangling his wife in her sleep because he had been having an affair with another woman and he wanted to collect $300,000 in life insurance money.

Miller’s murder conviction was overturned in February, when the Kansas Supreme Court said that the written jury instruction that District Judge Paula Martin gave jurors had been in error.

Since the granting of the retrial, the defense has been aiming to have the case moved to another jurisdiction. Miller’s attorney, Richard Ney, whose website lists him as one of 10 Federal Death Penalty Resource Counsels in the United States and touts him as having won multiple acquittals for people accused of murders, said in his motion to change venue that a Douglas County jury would not be impartial.

“A change of venue is the appropriate means to prevent violation of a criminal defendant’s Sixth Amendment right to a fair trial,” Ney said.

Ney said a Douglas County jury would not be impartial, citing results of a survey of 192 potential jurors conducted by Kansas University professor Thomas Beisecker.

When Beisecker asked survey takers about their knowledge of the crime, 63 percent said they had heard of the case before. Of the 121 who said they had heard of the crime, 85 people, or about 70 percent, said they thought Miller was “definitely” or “probably” guilty. Less than 3 percent thought he was not guilty and about 26 percent said they were unsure.

Additionally, when asked if they knew why the case had been reversed, many survey respondents “expressed the opinion that his conviction had been overturned due to a legal technicality,” Ney said.

Ney said the survey results proved that Douglas County would be an unfair location for Miller’s retrial.

“These potential jurors will come to the table not with a belief that the defendant is ‘clothed with a presumption of innocence,'” Ney said. “Rather, they come with an opinion that he is actually guilty and his retrial is simply a formality.”

Then-Senior Assistant Douglas County District Attorney James McCabria wrote in a response to Ney’s motion in October that the survey should not be a basis to show prejudice and, in fact, does not show anything spectacular about the public’s perspective.

“His motion fails to come close to demonstrating such prejudice,” McCabria said. “If anything, the survey results suggest nothing out of the ordinary about the amount of community interest or prejudice that attaches to this case as distinct from any criminal case that is tried in the county where venue exists.”

This was not the first time Ney attempted to change Miller’s venue. In September, Martin denied Miller’s request to disqualify the district attorney’s office after Assistant District Attorney Eve Kemple and Martin Miller’s son, Matthew Miller, both testified that Matthew Miller and Kemple’s son are friends, and the two had planned to move into an apartment together when plans fell through at the last minute. Kemple agreed to let Miller stay at her home rent-free, where her son also lives, on a temporary basis.

The Kansas Supreme Court denied Miller’s request to force Martin to disqualify the Douglas County district attorney’s office in November.

Martin said she plans to issue a decision on whether a change of venue is appropriate by early next week.

Martin Miller has been out of jail since posting a $250,000 bond in April. During a March court appearance, Miller’s attorney said Miller would arrange to live with his wife, Laura Cuthbertson, and her father at a home in Paola. Miller and Cuthbertson married while Miller was in prison in 2006.