Despite objections from the prosecutor and the press, an Anne Arundel County judge has closed a pretrial court hearing in the first such action in Maryland since the Supreme Court ruled the public has no constitutional right to attend criminal trials.
Invoking the controversial July 2 Supreme Court ruling, Circuit Court Judge E. Mackall Chiles said he had "no alternative" but to close the hearing after the defense argued that pretrial publicity would prejudice the defendant's right to a fair and impartial trial in an arson case.
The prosecution argued that the hearing last Friday was a public matter and that any question of prejudice could be remedied by other means available to the court, according to county Deputy State's Attorney Frank Weathersbee. These alternatives, Weathersbee said, include the traditional method of questioning potential jurors about what they have heard or read about a case.
A reporter for The Annapolis Evening Capital, who was in the courtroom when the defense made its request, said he informed the judge during the luncheon recess that his paper would object if the hearing were closed.
The reporter, Scott Lebar, said when he arrived for the afternoon session, the judge already had ruled to close the hearing. Childs called him to the bench and said he could state his objections but when he asked for more time to consult an attorney, Childs told him he could not delay the proceedings and ordered him to leave, Lebar said.
The judge also issued a "gag order" prohibiting lawyers, witnesses and other involved in the trial from making statements to the press or public about the case before the trial opens.
The Supreme Court's 5-to-4 ruling came in the New York state case of Gannett v. DePasquale in which a judge granted a defense motion, accepted $&(WORD ILLEGIBLE by the prosecution, to close a pretrial hearing on whether certain evidence should be suppressed on grounds it was illegally obtained. A reporter for the Gannett newspaper chain in Rochester, N.Y., had been barred from the courtroom and later appealed that ruling.
The five justices who signed the majority opinion agreed that when a defendant, the prosecutor and a trial judge decide to close such a hearing to preclude potentially prejudicial publicity, the public has no independent constitutional right to access.
Six of the justices, including two in the majority, found that the trial judge has an obligation to decide independently whether a hearing will be closed and must balance competing interests. These, according to some of the justices, include the public's interest in the open administration of justice.
American Civil Liberties Union staff counsel George Kannar said a prosecutor's objection to closing a hearing "is one factor to be considered" by the judge, but such an objection "does not bar a judge from ordering a pretrial hearing closed. It's just an ordinary motion. The court rules for one party or another."
Judge Childs' ruling involved a hearing on suppression of statements and evidence obtained in a case against Neil E. Beachem, who was charged with arson after a fire in the Annapolis home he was renting.
Kannar said a judge has "alternatives aplenty" to closing a hearing in an effort to protect a defendant's rights.
Childs said he found barring the press and public a preferable way to deal with the problem because he does not believe the other methods, such as expanded questioning of potential jurors, work.
Childs said he is "still not certain that the average layman, even with the best intentions of saying "I haven't been influenced,"" can really divorce himself from pretrial publicity. "When jurors go back in the jury room...it's unavoidable for some jurors to confuse what they heard in the courtroom with what they read in the paper," Childs said yesterday.
The judge said that the local newspaper had given a "great amount of publicity" to the arson case, which goes on trial July 31.
Evening Capital reporter Lebar said the newspaper had run a picture on the front page after the fire occurred and two subsequent minor stories after Beachem's arrest.