The case was so routine that the local weekly newspaper didn't bother to show up at the trial.
And the courtroom in this historic, 245-year-old courthouse, where Patrick Henry once orated in defense of freedom, was virtually empty when Circuit Court Judge Richard Henry Caldwell Taylor -- Dickie to his friends -- announced his ruling.
It was a simple but stunning order, issued after a casual, uncontested courtroom exchange: The room would be cleared of all spectators, Taylor said, and the murder trial of a drifter would proceed in secret.
The action, believed unprecedented in American history, set the stage for a clear-cut confrontation between the First Amendment's guarantee of freedom of the press and the Sixth Amendment's provision for a defendant's right to a fair and impartial trial.
Reporters for the nearby Richmond newspapers, who had planned to cover the case, were rebuffed in their appeal of the judge's ruling and have pushed the issue all the way to the Supreme Court. The court is expected to rule any day -- perhaps today -- on the constitutionality of barring the public and the press from an entire criminal trial.
Not since the Pentagon Papers case has American journalism been so united or troubled over an issue. Fifty-six newspapers, including The Washington Post, The New York Times, The Los Angeles Times and The Wall Street Journal, and all three television networks have filed "friend of the court" briefs arguing that Taylor and the Virginia Supreme Court, which upheld his action, are wrong.
Harvard Law Prof. Laurence Tribe, arguing before the U.S. Supreme Court last fall, expressed the outrage and disbelief of many in the press over the case. "It matters not that the freedoms of speech and press are being invoked . . ." he said. "Since it is settled that the accused has no rights to demand a secret trial, government's action making it secret is simply a form of censorship."
Not only has the press united on the Taylor ruling because it was the most extreme action regarding what the press long has regarded as its right to cover trials, but because it came as lower court judges across the nation were closing portions of criminal trials to the public.
Those actions have followed a 5-to-4 ruling by the Supreme Court a year ago -- a controversial decision that held judges may bar the public and the press from a pretrial hearing. That decision, in what is now called the Gannett Case, has been interpreted to have meant many things. Five members of the court have broken their customary silence to speak out on what the ruling meant -- and their views are still at odds.
According to the latest count by the Reporters Committee for Freedom of the Press, a Washington-based group, thre have been 260 attempts by judges to close or uphold the closing of criminal proceedings since the Gannett ruling.
One of those decisions came seven days after the ruling. It was the action of the Virginia Supreme Court, agreeing that Judge Taylor had the authority to clear his courtroom and proceed in secret.
If Taylor, on the bench barely a year at the time, had any idea he was setting off such a judicial controntation, it wasn't obvious in his manner that day two years ago.
The request to close the trial first was made on June 6, 1978, by C. Willard Norwood, a Richmond criminal attorney. He had been appointed to represent one of three men accused of stabbing a 55-year-old woman who worked in a rundown motel near Interstate 95 in Ashland, a college town north of the Virginia capital.
Shortly after a jury had been selected, Norwood rose and moved "to exlude everyone from the court during the course of this trial, including a lady over there," pointing to a woman whose name he did not know, but whom he believed to be a friend of the murder victim's family.
"Does that include the press too?" asked Judge Taylor, peering down from his seat beneath an oil portrait of Pactrick Henry.
"Well, uh, I beleive so," replied Norwood, "You know, if they'd print all the facts it wouldn't be so bad," he went on. "But they pick out which they think is the most eye-appealing to the public, you know."
Commonwealth's Attorney Patrick R. Bynum, 32, a part-time prosecutor, raised no objection, and Taylor immediately granted the motion.
Among the few spectators who were forced to leave the courtroom were two Richmond newspaper reporters Timothy B. Wheeler of the morning Times-Dispatch and, Keven McCarthy of the afternoon News-Leader. But before the testimony could begin, Taylor declared a mistrial, after a juror was overheard telling another juror that the defendant had been tried and convicted of the same charge once before, but the verdict had been overturned on appeal.
It was Sept. 11, 1978, before a new jury was selected. Defense attorney Norwood renewed his request.
"I would like to ask that everyone be excluded from the courtroom becausee I don't want any information being shuffled back and forth when we have a recess, as to what -- who testified to what," Norwood said.
Turning to the prosecutor, the judge asked: "Do you have any objection to clearing the courtroom, Mr. Bynum?"
"Uh, no sir," he answered. "I'll leave it to the discretion of the court. Are you talking about everyone, the press included? Is that -- does your motion extend to them?" Bynum asked of Norwood.
"Yes sir, that would be my request," said the defense attorney.
"All right, sir," the judge replied.
"It's in the discretion of the court," offered the prosecutor. You know, I -- I understand, you know. It's strictly on defense motion."
"Yes sir, well . . ." continued the judge " . . . I'll rule that the courtroom be kept clear of all parties except the witnesses when they testify." c
Deprived of the chance to cover his first murder trial, reporter McCarthy, 24, walked to the nearest telephone and called his editor. "They kicked us out again," he said.
At the end of the prosecutor's case, defense lawyer Norwood moved that the murder charge be dismissed on grounds of insufficient evidence against his client, a 27-year-old sometime truck driver from Baltimore named John Paul Stevenson. Taylor agreed.
Details of what prompted the judge to rule in favor of the defendant remained virtually secret nearly two years.
A part-time court stenographer, Patricia S. Wright, has a tape recording of the secret trial, but it has never been transcribed. It was not until shortly before the case was argued in Washington, that she began to play the tape to interested parties, among them lawyers and reporters, at $60 a listen.
It is the existence of that recording, Virginia Attorney General J. Marshall Coleman contends, which preserves the public's right to know what happened during the trial.
According to those who have forked over $60 to listen to Wright's scratchy recording, the judge told the prosecutor he threw out the charge against Stevenson because "I think you've got too many holes in your case, Mr. Bynum."
Those same listeners said the prosecutor mumbled that the state's case against Stevenson was "circumstantial" without evidence of a bloody shirt that was admitted in the original trial. The Virginia Supreme Court had overturned the conviction in that earlier trial, saying the shirt should not have been allowed as evidence.
"I always dreamed of going before the Supreme Court," chuckled Judge Taylor, starting a gag line he has become fond of, "but not as a defendant."
Taylor won't talk about his reasons for closing the trial, but he'll talk about anything, and everything, else in his past.
The 49-year-old looks and talks like the caricature of a small-town judge -- short and quick-stepped, with tousled dusty hair, and ashes from a Winston dripping on a blue seersucker suit.
Taylor never sought public office, saying, with characteristic forthrightness, "I was a backroom man." He was part of the Byrd political machine, "when it was in existence," and being a versatile power broker, twice helped elect Mills E. Godwin governor, "first as a Democrat and then as a Republican." It was Godwin who named him a judge.
A bachelor, Taylor lives with is 85-year-old mother in the house he was born in, which his father built, a quarter of a mile from the courthouse. He could walk to work, "but I don't -- too lazy."
The crime itself rated only four paragraphs, on Page B1 in the Dec. 3, 1975 Richmond Times-Dispatch.
The stabbed and partly nude body of Lillian Keller, a 55-year-old divorced grandmother, had been found on the bed of her apartment at the Holly Court Motel, where she served as resident manager.Motel owner Ray Knotts, who had picked up the receipts earlier in the day, said $104 had been taken from a cigar box she used for petty cash.
Police arrested three men, two of whom lived at the 16-unit motel on old Rte. 1. They were Howard Franklin Bittorf, 32, a janitor for a concrete block plant who lived in the unit adjoining Mrs. Keller's; his brother-in-law, John Paul Stevenson, 27, the sometime truck driver from Baltimore, and Jeffrey Allan Taylor, 20, another motel tenant.
The three men faced separate trials in 1976, before another judge in the circuit.
Stevenson's trial was first, and he was found guilty and sentenced to 10 years in prison. Next came Bittorf, and a jury found him guilty. Sentence: 20 years. Taylor's first trial ended in a hung jury, and the second with a directed verdict of acquittal.
During Stevenson's trial, defense attorney Norwood argued against the admission of his client's bloody knit pullover shirt, saying it amounted to hearsay and was improper. The judge overruled Norwood's objection.
On Oct. 7, 1977, the Virginia Supreme Court agreed with Norwood, and overturned the convictions of Stevenson and Bittorf.
The next round of trials were conducted by Judge Taylor.
Diane Bechtol, who was a reporter for Ashland's 8,500-circulation weekly Herald-Progress, said "it was my feeling, there wasn't much discussion about it, that the judge didn't know he was making history" with his ruling.
For his part, Taylor will say only that he acted on "my interpretation" of a Virginia statute, which he claims gives the trial judge authority to clear a courtroom.
Virginia Attorney General Coleman, in defending the judge and the law before the Supreme Court, rejected press contentions that "the First Amendment guarantees either the public or the press a right to access to governmental places and information." The central purpose of criminal trials, Coleman went on, is "fair adjudication of the accused."