A Montgomery County Circuit Court judge yesterday ordered members of the public and press excluded from major portions of a pretrial hearing later this month for Timonthy Joseph Buzbee, charged in connection with several rapes in the county's Aspen Hill area.
Judge Rosalyn B. Bell ruled that "overriding prejudice . . . could result" against Buzbee if the media reported on the hearing, set for Feb. 28. Buzbee's lawyers will argue at that time that certain statements and other evidence against the defendant should be thrown out.
Bell's ruling, which was opposed by the prosecutor and by The Washington Post, the Montgomery Journal and the Montgomery Sentinel, marks the first closing of such a hearing in Montgomery County, according to both the prosecutor and Buzbee's attorneys.
Lawyers opposing the order, which was sought by Buzbee's attorneys, argued that the public has a constitutional right to attend those proceedings, which are normally held in open court.
Bell also ordered that certain documents, normally open to the public, be sealed and she left in effect "gag orders" imposed Jan. 20 that prohibit prosecutors, defense attorneys, police and Buzbee's relatives from talking publicly about the case.
The judge eased her Jan. 20 ruling by ordering that most of the currently sealed criminal file be opened and that portions of the pretrial hearing be held in open court. But sworn statements given by police last November to back up their arrest of Buzbee will remain sealed.
The judge's ruling sets up a classic confrontation between two competing constitutional rights--the public's right to know and the defendant's right to a fair trial. Legal battles involving these issues have been argued all the way to the U.S. Supreme Court.
"When you put all those pieces together, it is a very significant restriction on the public's access to the criminal justice system," said Jack Landau, executive director of the Reporters' Committee for Freedom of the Press. "This is not a private affair. The public has a right to know why the police arrest people . . . and how the criminal justice system works."
Attorneys for the newspapers are expected to appeal Bell's ruling.
All the records of Buzbee's arrest and subsequent court appearances have been sealed from public view since the 26-year-old land surveyor was arrested last Nov. 5. He was later indicted in connection with five of the 16 sexual assaults that had terrorized the upper-middle-income Aspen Hill community for more than a year.
Attorneys for the three newspapers asked to intervene after the Jan. 20 hearing, at which Buzbee's attorney, Reginald Bours III, argued for the gag orders and the closing of the pretrial hearing in the case. Bell, despite objections from prosecutor Barry Hamilton, granted Bours' requests. Bell scheduled yesterday's hearing to reconsider her decisions.
During more than three hours of argument, prosecutor Hamilton declared that "no case in the last 200 years has been closed to the press in this jurisdiction. The question has to be, how is this case different than any other celebrated cases in the last 100 years?"
Hamilton and attorneys for the newspapers noted that hearings and records have remained open to the public in such highly publicized cases as the Abscam prosecutions, the Watergate case and the trial of John W. Hinckley Jr., who was accused of attempting to assassinate President Reagan.
Bours argued that the press has "shown tremendous and unusual interest in covering even the most minute details" of the Buzbee case, and that the coverage may make it impossible to find an "impartial jury" in Montgomery County. "The pretrial suppression hearing must be closed if Mr. Buzbee is to have a fair trial by unbiased jurors," Bours asserted.
The Washington Post attorney argued that there is "a strong presumption" under previous court rulings that criminal records and proceedings should be open to the public. "Just the fact that publicity exists is not enough to overcome that presumption" and allow their closing, she said.
After hearing the arguments, through which Buzbee listened impassively, Judge Bell declared that there had been "a great deal of substantial publicity in the case, and that it will likely continue. It's important I do the best I can to protect the defendant from any type of circus-like atmosphere and any type of material that" might harm his chances for a fair trial.