Judge refuses to close hearing in Malvo case

By The Associated Press

01.13.03

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FAIRFAX, Va. — A judge late last week rejected defense lawyers’ request to close a preliminary hearing this week for sniper suspect John Lee Malvo that will likely outline some of the government’s evidence.

Fairfax County Juvenile and Domestic Relations Court Judge Charles Maxfield on Jan. 10 said the defense lawyers’ arguments that publicity from the hearing would impair Malvo’s right to a fair trial is merely speculative.

“You can’t point to anything in this case that’s going to prejudice your ward’s right to a fair trial,” Maxfield told Malvo’s court-appointed guardian, Todd G. Petit.

Petit had argued that previous leaks of evidence in the case had tainted the jury pool and that tomorrow’s hearing will exacerbate the problem.

“It will continue to feed the media frenzy,” he said. “The amount of evidence that’s going to come out in the preliminary hearing will dwarf the information that’s already out there.”

Malvo’s lawyers also argued to close the hearing. Lawyers for media groups and Fairfax County Commonwealth’s Attorney Robert F. Horan Jr. opposed efforts to close the hearing.

Typically preliminary hearings, which establish whether probable cause exists to send a case to a grand jury for indictment, are brief affairs with only a sketchy outline of the evidence.

But Horan has said he plans to present more than 20 witnesses at tomorrow’s hearing and expects it to last two days. He said the witnesses are needed because of the case’s complexity.

Horan argued that the public’s right to witness the hearing trumped any potential harm to Malvo and that the jury selection process would guarantee that jurors are unbiased.

He said both the U.S. Supreme Court and the Virginia Constitution guarantee that both pretrial hearings and trials be open to the public except in the most extraordinary circumstances.

“The public’s right is the overriding interest ... because of Virginia’s passion that we not try criminal cases in secret,” he said.

Craig Merritt, a lawyer for Media General, which publishes the Richmond Times-Dispatch and other newspapers, argued that an open hearing is the best way to guarantee that the public gets accurate information.

“If the hearing is closed you’re going to get a lot of misinformation. You don’t want to create more incentives to leak information,” Merritt said.

The Washington Post, The New York Times, The (Baltimore) Sun and the Associated Press also asked the judge to keep the proceeding open.

“Excluding the public and the press from the critical pretrial criminal proceedings violates the constitutional right ... firmly established by the decisions of the United States Supreme Court and the Virginia Supreme Court,” the companies said in papers sent to court Jan. 10.

Tomorrow’s preliminary hearing will be the first substantive presentation of evidence in the sniper case.

Malvo and John Allen Muhammad, 42, have been accused of shooting 18 people, killing 13 and wounding five in Alabama, Georgia, Louisiana, Maryland, Virginia and Washington, D.C. They are facing trial first in Virginia.

Muhammad is awaiting trial in neighboring Prince William County. Both face the death penalty.

Malvo did not attend the Jan. 10 hearing. Petit said Malvo’s jailers, who take numerous precautions when transporting him from the jail to the courtroom, had asked to keep him at the jail. Malvo’s lawyers agreed to the request.

Meanwhile, a Kentucky Court of Appeals panel on Jan. 10 declined to overrule a judge who banned reporters from jury selection in a murder trial.

The Courier-Journal of Louisville had sought an emergency order to allow coverage of jury selection in the trial of David “Bucky” Brooks, who is charged with beating and strangling 17-year-old Jessica Dishon in 1999.

Bullitt County Circuit Judge Thomas Waller ruled Jan. 9 that reporters could request transcripts of the selection process at a later date, after a jury is seated. He said media attention might bias potential jurors. The newspaper challenged Waller’s ruling as jury selection began.

Chief Judge Tom Emberton, writing for the appeals court panel, said Waller had acted properly in the case. Judges David Buckingham and Joseph Huddleston joined in the opinion.

Emberton said Waller’s ban on media access applied only when prospective jurors were asked about their knowledge of the case and whether they could consider the full range of penalties, including the death penalty.

Kenyon Meyer, an attorney representing the newspaper, said the ruling was “contrary to U.S. Supreme Court precedent.” He said officials of the newspaper were deciding their next step.

One option was to appeal to the Kentucky Supreme Court, but jury selection could be completed before a ruling, Meyer said.

The newspaper has another motion pending before the appeals court seeking to overturn Waller’s decision. It, too, could be decided well after jury selection is completed. But Meyer said it would carry weight as a precedent.

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