Papers push appeal of courtroom closure

Attorney for Virginian-Pilot, Daily Press urges panel to reconsider, says move was not justified

An attorney for the Daily Press and The Virginian-Pilot told a three-justice panel of the Virginia Supreme Court on Tuesday that a trial judge got it wrong when she barred the media and public from a bond hearing for a Newport News police officer charged with murder.

Brett Spain, the lawyer for both newspapers, contended that Circuit Court Judge Margaret Poles Spencer didn’t have justification to close the April hearing for Sgt. Albin Trevor Pearson, who is accused of killing Henry Kistler “Hank” Berry III in late 2019.

“As the U.S. Supreme Court and (the Virginia Supreme Court) have said, the press acts as a ‘surrogate for the public,’ which cannot as a practical matter attend criminal trials with any sort of regularity,” Spain said.

“Much of what the public is able to learn about the court system comes from reporting made possible by public access” by the press, he said. And if the media is barred from a hearing, he said, “the community as a whole suffers.”

Because of the First Amendment and other provisions of law, he said, closing court hearings is a drastic action that can only be done for very limited reasons.

Spain was allotted 10 minutes on Tuesday’s docket to urge the panel to “grant the appeal” brought by the newspapers and send it to the seven-member Virginia Supreme Court for a full hearing.

Attorneys from across the state made similar 10-minute pitches — to three separate panels of justices — asking that their case be among the much smaller number of cases selected for a full appeal.

Chief Justice Donald W. Lemons, Justice Cleo W. Powell and Justice Teresa M. Chafin will vote on whether the newspapers’ case will be among them.

Berry was shot in his Oyster Point apartment Dec. 27, 2019, as officers sought to take him into custody on a misdemeanor charge of abusing the city’s 911 phone system. Prosecutors have said that Pearson shot Berry during a struggle over a Taser inside Berry’s townhouse after barging into his home without a warrant.

Though Pearson had been out on bond since November 2020, the outside prosecutor on the case, Suffolk Senior Assistant Commonwealth’s Attorney Brandon Wrobleski, filed a motion in March to revoke the officer’s bond and have him jailed pending trial. Wrobleski made the motion weeks after gaining access to Pearson’s full internal affairs file.

He also asked Spencer to close the bond hearing, contending that pretrial publicity could make it difficult to seat an impartial jury later on. The prosecutor cited a Virginia Lawyers Weekly article from last fall about how difficult it was to get potential jurors to show up.

Spencer, a retired Richmond Circuit Court judge sitting on the case, agreed, saying that she found it “alarming” how few people were showing up for jury duty.

She also cited “the nature of the case” and “recent publicity” surrounding police involved cases as reasons to bar the press and public from the hearing. At

the closed hearing, Spencer denied the prosecution motion to revoke Pearson’s bond, allowing the officer to stay out of jail pending trial.

The judge “did exactly what the U.S. Supreme Court and this court said they are not permitted to do,” the attorney said. She “denied access based on conclusory and speculative justifications that cannot possibly satisfy the stringent standard for closure.”

In a 2013 Virginia Supreme Court decision involving the Daily Press and another case, Spain said, “the court held that a mere possibility that pretrial publicity could impact a defendant’s right to a fair trial is not sufficient.”

In the Pearson case, Spencer even said that “we don’t know the impact that pretrial publicity will have in the future,” a clear indication that it was a speculative reason, Spain said.

The fact that there’s been a lot of recent publicity on the use of force by police officers, Spain contended, is a reason to keep a court hearing open rather than closing it.

“We’re talking about a bond hearing that’s a regular part of the criminal process that happens every day in open court for ordinary defendants,” he said. “So what kind of message does it send that a police officer here was given special treatment — essentially had his bond hearing in secret?”

The judge also said the COVID-19 pandemic might have made it difficult to seat a jury, citing the article that said that jurors weren’t showing up for jury duty in October 2020.

“It’s just pure speculation, and exactly the kind of thing that the court says cannot serve as a basis for closing it,” Spain said.

Spencer, he said, also turned down other alternatives to closing the courtroom, including bringing in more jurors to start out jury selection, questioning jurors during jury selection about their knowledge of the case, issuing jury instructions and changing the venue to another location.

“The court rejects them all out of hand on this idea that if jurors don’t show up, then

there’s nothing to instruct them on,” he said.

Everyone understands, Spain said, that the pandemic has made things more difficult in the courts.

“It may have taken longer to seat the jury here,” he said. “It may have been a longer process ... We understand that. But on the other side of that, the court needed to observe the right of the public and the press to attend this hearing.”

Spain pointed out that the motion to close the courtroom was initially done by the prosecution — and not by the attorney representing Pearson, the person “who had the most important stake and interest” to a fair trial.

Pearson’s attorney, Timothy Clancy, said at one hearing that he supported closing the courtroom to protect his client’s rights to a fair trial. But, Spain added, “the defense counsel literally said to the trial court that he had

no legal authority of any kind that he could cite that would support closure,” Spain said.

Aside from contending that Spencer was incorrect to close the hearing, the newspapers’ appeal further asks the Supreme Court to order that the hearing transcript and the related court documents be unsealed.

The Supreme Court rules did not permit the prosecution or Pearson’s attorney to speak before the court on Tuesday, but they will be given the opportunity to do so if the appeal is granted.

The city of Newport News, for its part, contended that its internal affairs files should continue to be sealed to protect the rights of the city’s police officers, and to protect the city’s interest in having the officers cooperate in internal affairs investigations.

It’s not clear when the high court will decide whether the grant the newspapers’ appeal. Pearson’s trial on the murder charge is slated for early December.