A Virginia Beach judge on Friday will consider whether to allow news media to be present for a detention hearing for two juveniles charged with murder in a November homicide.
Juveniles are not named in court proceedings unless they are charged as adults. The defendants, ages 15 and 17, both face felony murder, attempted robbery and other charges in connection with the Nov. 5 fatal shooting of 21-year-old Richard Cantey.
The pair were slated to appear in court on Nov. 30, but when a reporter with The Virginian-Pilot and Daily Press sought to attend the hearing, a defense attorney for the teenagers objected and argued the case should be closed to the newspapers.
In a prior court appearance for the teens, a judge kept the courtroom closed, according to Macie Allen, a spokesperson for the Virginia Beach Commonwealth Attorney's Office, though no news outlets attended.
The newspapers have previously sought - and won - access to cases involving juveniles, including in Virginia Beach. Last year, in a case of first impression, the Virginia Supreme Court also sided with the newspapers after a Circuit Court judge closed a bond hearing for a Newport News police officer charged with murder.
Virginia law states court proceedings "shall be open" in cases where a juvenile who's at least 14 is accused of a crime that would be a felony if committed by an adult. The proceedings can only be closed if "good cause" is shown, and the court would have to state in writing its reasons for closing it as part of the public record.
An attorney for The Pilot and Daily Press, Brett Spain, filed a motion to intervene in the Virginia Beach case seeking to allow a reporter to be present, based on the fact the juveniles are charged with crimes that would be felonies if they were over the age of 18.
At the Nov. 30 hearing, the defense argued the case should remain closed, both because the defendants are juveniles and because publicizing their names and other facts of the case could prejudice the jury, making jury selection more difficult. Judge James Normile asked the defense, in line with the newspaper's argument, how this case would be any different from a preliminary hearing or trial in open court once the defendants are charged as adults.
In a 10-page motion for closure, Maribeth Portier, a public defender representing one of the defendants, argues the public's interest in the case is "minimal" while the defendant's privacy interest is "at its highest."
"Assuming Defendant were adjudicated delinquent, the only harm (The Pilot and Daily Press) suffer by exclusion is the mere inconvenience of waiting to publish their story after Defendant's adjudication is finalized," the motion for closure reads. Additionally, if the court found the charges against the teens was not supported by probable cause, "Defendant would suffer the immeasurable harm and stigma that is attached to criminal charges."
The Virginia Beach Commonwealth Attorney's Office did not take a position on the motion for access at the Nov. 30 hearing and had not stated an intent to charge the defendants as adults. The detention hearing itself was continued to Jan. 23.
In a 26-page response, Spain wrote that the defense offered "nothing but conclusory justifications that could be argued in every case."
The risk of prejudicing the jury through news coverage, even "pervasive" news coverage, has never been enough to justify closing a trial to the public, Spain said. He cited Richmond Newspapers, Inc. v. Commonwealth in which a judge ruled that the public's interest is "more acute" in pre-trial hearings, because this is when "evidence of alleged police-prosecutor misconduct necessitating the exclusion of evidence will come to light."
The Virginia Beach murder case should be given the attention it deserves, Spain said, adding the public has a right to know how and why the court rules in the case, not just what it rules.
At the November hearing, Normile agreed with the defense that it would be a "problem" if the defendants' names were made public and was open to allowing a reporter to be present for the proceedings under the restriction that the defendants' names and addresses not be made public. In the defense's filing, Portier questioned how a reporter found out about the hearing at all.
"If the (newspaper) obtained this information by already circumventing the court's well-established and well-known rules of confidentiality in juvenile cases, this indicates a lack of trustworthiness such that the court cannot be assured the (newspaper) would abide by any enumerated restraints," the filing reads.
In his motion for access, Spain called the claim an "offensive assertion." He said it is irrelevant how the newspaper found out about the hearing because the law does not forbid anyone from "providing details about the fact of a presumptively open hearing." If that were true, he said, it would mean the hearing would be open but it would be illegal to tell anyone when it would occur.
Gavin Stone, 757-712-4806, firstname.lastname@example.org