On its journey from the courtroom here to the U.S. Supreme Court 90 miles north, a much-publicized secret-trial case has gotten curiously detached from its facts.
A local judge's order closing a murder trial, challenged by the Richmond newspapers and defended by the state of Virginia, has become a major Supreme Court test case. Great issues of fair trials and open justice, of defendants' rights and public interests, are being argued in sweeping terms. The high court is expected to use the case to decide when, if ever, criminal trials may be held in secret.
All very momentous -- only little of it relates to the facts of the case.
What happened here was not a dramatic collision between openness and fairness in court. It was a muddled second-degree murder case in which the courthouse was closed quite casually, without sharp legal argument and, more important, without any specific fair-trial problem that secrecy could solve.
Hanover County, just north of Richmond, is still a semirural area where justice is not elaborate. Trials are short. Juries have never been sequestred. At one recent trials, nobody thought it unusual that a state trooper had safeguarded vital evidence by locking it in the trunk of his car.
The old brick courthouse suits that style. Built in 1735, it looks like a stray of Williamsburg come to rest on a bend in Route 301. Until the secret trial, the most noteworthy case here was in 1763 when a young local lawyer named Patrick Henry stirred an overflow crowd with his first impassioned attack on English tyranny.
Much has been made of the irony of holding a secret trial in Patrick Henry's courthouse. More relevant is the fact that the building is very small, much like a one-room country church. Judge, jury, witnesses and spectators all used the same doors and aisles. Prospective witnesses and jurors had to wait outdoors under the portico or on the lawn.
Patrick G. Bynum, commonwealth's attorney from 1975 to 1979, recalls a number of times when former judge Edward P. Simpkins Jr. "had to call a witness or a juror in and say, 'You were seen talking to so-and-so. What did you say?' It usually turned out to be nothing."
Simpkins finally persuaded the county board to build a larger, more secure courthouse nearby. It was under construction when the secret trial occurred in an unspectacular case complicated by a bloodstained shirt, a suspicious defense counsel and a new, accomodating judge.
John Paul Stevenson, a unemployed truck driver from Baltimore, and his brother-in-law, Howard Bittorf, were charged with the second-degree murder of Lillian Keller, resident manager of a modest Route 1 motel where Bittorf had been living. In December 1975 the two men and a third had been drinking, and Bittorf had talked of getting some money and going away. The third man went to his own room and shortly heard Bittorf and Stevenson leave. A car resembling Stevenson's was seen pulling away fast.
An hour or so later Keller was found beaten and stabbed to death. About $100 was missing. Stevenson's wallet lay on the floor. A bent kitchen knife wiped clean, was on a towel in Bittorf's adjoining room. The two men were picked up in rural Minnesota four days later.
At their first trials in 1976, the prosecution also introduced a knit pullover shirt stained with blood of an uncommon type matching the victim's. A state trooper had gotten the shirt from Stevenson's wife in Baltimore after asking for the clothes he had worn that day. The defense argued that any link between Stevenson and the shirt was hearsay. Judge Simpkins allowed it. Both men were convicted, but in October 1977 the Virginia Supreme Court ruled the shirt inadmissible and offered new trials.
By then Simpkins had retired. The new judge was Richard H. C. Taylor, an amiable lawyer from a prominent local family. Taylor convened Stevenson's second trial on May 30, 1978, but just after jurors were seated, one said she was ill and asked to be excused. So Taylor declared a mistrial.
Stevenson's third trial -- and the secrecy -- began on June 6. According to unofficial transcripts, before the jury was chosen, defense counsel C. Willard Norwood complained about the possible harm of news reports that had appeared on issues in the case, including the bloodstained shirt. Then he moved to "exclude everyone from the court during the course of this trial," explaining, "I just don't want people shuttling any information back and forth from the courtroom out to possible witnesses."
Norwood did not make his suspicions clear and Taylor did not demand details. He simply asked whether the motion included the press. "Well, I believe so," Norwood replied. "You know, if they'd print all the facts, it wouldn't be so bad. But they pick out which they think is most eye-appealing to the public, you know."
On that basis Taylor agreed to close the trial. But it soon turned out that one prospective juror had read about the case and told others, presumably while waiting outside. Another mistrial was declared.
That may have shown some danger in even routine news reporting about the earlier trial and the bloodied shirt. The crucial fairness question, though, is not whether jurors have heard about a case but whether what they know prevents them from judging it solely on the evidence presented at trial. Apparently Taylor assumed the shirt was too damning to be ignored. At the same time neither he nor Norwood seemed to notice that the mistrial proved closing the courthouse was pointless if the harmful information was already known outside.
Because the trial had been aborted, few people noticed the first closure order. One who did was Alexander Wellford, counsel for Richmond Newspapers Inc. "I've known Judge Taylor for years," Wellford said recently. "So the next time I was in Hanover, I stopped him on the lawn and said, 'You're not supposed to be closing these things.' He said, 'Oh? Not even jury selection?' I offered to send him a couple of cases and he said he'd like to see them."
Stevenson's fourth trial opened on Sept. 11. as a re-run of the third. Norwood mentioned "this woman that was with the family of the deceased when we were here before" and moved to exclude everyone from court. Bynum said the decision was up to the judge.
Noting that "the statute gives me that power specifically," Taylor again ordered the courthouse closed. About a dozen people, including two reporters, had to leave. The Virginia law Taylor invoked provides that in criminal trials, the judge may exclude "any persons whose presence would impair the conduct of a fair trial." As before, nothing Norwood nor Taylor specified how any person or spectators generally would impair the trial.
Little was clarified at a hearing Taylor gave the newspapers' attorneys that afternoon, after six prosecution witnesses had testified in secret and the jury had gone home for the night. At one point Wellford argued that if they feared "the possibility that the jury may read the newspaper tomorrow and read evidence which it would otherwise not be entitled to," the proper remedy would be to sequester the jury. But that approach was not discussed further. Even Wellford will acknowledge that "nobody was eager to lock up a bunch of Hanover County citizens in a case like this."
Once more Norwood complained about "difficulties with information" and grumbled that reporters "don't always quote exactly verbatim what was said." It was fruitless to order jurors not to read the newspapers, he went on. Perhaps he hoped that barring the press from court would bar stories about the trial.
Again Bynum was passive. "I wanted to try the case and get it over with," he now explains. "Besides, it was the defense attorney's judgment call. And the public's right to know wasn't really hurt. The case wasn't all that newsworthy."
After noting his own concern about the courthouse's layout, Taylor concluded. "I'm inclined to agree that if I feel the rights of the defendant are infringed in any way, then he makes the motion to do something and it doesn't completely override all rights of everyone else, then I'm inclined to go along."
That is that judgment that the Virginia Supreme Court upheld and state attorney general Marshall Coleman is defending in the U.S. Supreme Court.
Coleman, who generally advocates open trials, argues that this was a justifiable exception because it was the fourth and so many "difficulties and problems" had occurred. His brief does not note that the secrecy began at the third trial; that no unique difficulty with spectators was ever shown; and that the problems that produced four trials -- the reversed conviction, the ailing juror, the jurors' gossiping on the green -- could not be solved by closing the trial.
What did the secrecy accomplish? Ironically, the jurors' impartiality -- which the secrecy was meant to protect -- was never tested because the case never got to them. After Bynum had laid out his evidence, not including the bloodstained shirt, Norwood made the standard defense motion to strike on grounds that the prosecution's case was extremely weak. "Anyone could have killed this woman," he argued.
Taylor agreed. "I think you've got too many holes in your case, Mr. Bynum," he ruled, and ordered Stevenson acquitted. Bynum announced that Bittorf would not be retried. The courthouse was opened and the outcome was announced, but not explained.
Now, for $60 a day, the court reporter will play buzzing and indistinct dictabelts for anyone who wants to try to learn what transpired in secrecy.
The largest result of the secrecy has been to insulate the trial, the judge and the attorneys from public scrutiny -- to make this bit of justice more private, but not necessarily more fair.
The main question raised by this quirkfilled case may be how it came to be a major test. The chief legal issue it poses is the rock-bottom one of whether the firm tradition of open trials may be overriden at a defendant's druthers for no solid reason at all.