A Montgomery County Circuit Court judge has closed to the public and the press a pretrial hearing in the case of Timothy Joseph Buzbee, the land surveyor charged in connection with a series of rapes in the county's Aspen Hill area.
In a set of far-reaching oral rulings, Judge Rosalyn B. Bell has temporarily closed off from public scrutiny all the legal documents relating to the case and has outlined a "gag order" preventing lawyers, police and the Buzbee family from talking publicly about the case.
The rulings, requested by Buzbee's defense attorneys and opposed by county prosecutors, have set up a classic confrontation between competing constitutional principles--the public's right to know and the defendant's right to a fair trial.
The Journal Newspapers is seeking permission from the judge to intervene in the case to contest the "gag orders" and the closure of the hearing and court records. The Washington Post "fully supports the Journal's" action and intends to join it in contesting Bell's rulings, a Post lawyer said Friday.
Bell has scheduled a hearing Wednesday to hear the Journal's request, and she issued an order last week saying she "will reconsider all the oral decisions" made at the previous hearing Jan. 20.
Jack Landau, executive director of the Reporters' Committee for Freedom of the Press, denounced those rulings last week. "It seems the judge has lost sight of the fact that this is a public criminal process," Landau said. "She is treating it as some type of private arrangement between her, the defense and the prosecution. There is an important fourth component here--the public."
Buzbee, 26, was arrested last Nov. 5 and later charged in connection with five of the 16 sexual assaults that had terrorized the Aspen Hill community for 18 months.
Defense attorney Reginald W. Bours III immediately asked that the arrest and court records, normally open to the public, be sealed. Those records and the subsequent indictment of Buzbee were sealed with the consent of prosecutors, who agreed to a temporary closure until they could argue the matter in court.
On Jan. 20, Judge Bell heard arguments from both sides on the question of the closed records, the closed pretrial hearing and the gag order sought by Bours and opposed by Assistant State's Attorney Barry Hamilton.
Bours said the Buzbee case has generated an "unusual amount of publicity at every stage," and that he "is concerned about the nature and extent of the publicity poisoning the minds of prospective jurors. Our only objective," he said, "is to make possible a fair trial in this county."
Before Buzbee's arrest the press had chronicled the fear in the Aspen Hill neighborhood that had built up over the sexual assaults and spawned community meetings and a neighborhood watch program. Buzbee's arrest and subsequent court appearances were then extensively covered by television and newspapers. Judge Bell noted at the Jan. 20 hearing that the publicity "results from a very obvious interest in a very serious neighborhood situation."
But prosecutor Hamilton argued in court that defense attorneys had failed to prove the publicity was prejudiced against their client. The coverage, Hamilton argued, has been "balanced," including the views not only of the community but of Buzbee's mother and father, a real estate and title attorney well known in the county courthouse.
But Bours maintained that if the publicity continues it will be difficult to find an impartial jury in the county. To prevent that, Bours has sought sweeping closure orders of the kind seldom granted by the courts. They include an effort to keep the public and press from a hearing, scheduled Feb. 28, in which he will ask a judge to throw out certain evidence in the case that Bours argues was obtained illegally by police. Bours will also ask that the charges against Buzbee be dismissed because there was never "probable cause" to arrest him for the crimes in the first place.
Bours has asked that much of the court file be permanently sealed from public view, including the indictment, which contains the precise charges against Buzbee. Judge Bell has denied some of his requests, asserting in court that she must "come down in the middle" between the "whole panoply of secretiveness" sought by the defense and the prosecution's opposition to any secrecy.
Nevertheless, Bell has said that before the file is reopened she will allow the defense to "sanitize" the files of certain information it wants kept from public view.