The freelance legal reporter had flown to the Hampton Roads area to research court documents for a book project. Arriving at the courthouse in Yorktown around 9:30 a.m., he had asked to review materials used in a landmark murder trial, including photographs, video tapes and audio recordings.
While O’Brien was allowed to look at volumes of trial transcripts, court officials said a judge would have to decide if he could review the other items. They suggested he write a letter to the judge presenting his request.
Around 10 a.m., O’Brien wrote out his request by hand, asking York County Circuit Judge Richard Y. AtLee Jr. to allow him to access the forensic records and other recordings. O’Brien handed the letter to a court officer and sat down to wait.
As morning turned to afternoon, O’Brien would periodically ask the staff in the clerk’s office if the judge had sent any word on his request. “The judge is still sitting” in court, he was told. O’Brien said he sensed his trip may have been a waste of time.
Sometime after 4 p.m., O’Brien took a look in the courtroom. The room was empty, the lights turned off.
He pointed out to the clerk’s staff that the judge was off the bench. He was told the judge had left without acting on his request. A staffer suggested he submit a formal motion. O’Brien left without getting a glance at anything beyond the written words in the transcripts.
O’Brien’s fruitless journey on Feb. 23 raises questions, given the state of the law in Virginia on access to court records. The York County circuit clerk said she was not aware of any order sealing the records O’Brien sought.
Without an order sealing information in a criminal file, there are few restrictions on public access, according to a guide published by the Supreme Court of Virginia. “The vast majority of records filed in the clerk’s office are not confidential and are accessible to the public,” reads the court’s manual for circuit court clerks.
Court staffers “should be conscious of the public’s right to gain access to most records and documents on file in the clerk’s office,” the manual says. The guide refers to a “presumption” that court records are public and open for inspection. Exceptions include juvenile court records, adoption records, judicial complaints, judges’ notes, and medical examiners’ reports.
Despite the presumption of openness, it has been more than six weeks since O’Brien traveled to Yorktown and he still has not been told whether he will be allowed to view the materials or why judicial review is needed.
It’s not for lack of persistence. O’Brien filed a formal motion with the York County court four days after his initial trip to Yorktown. When the judge had not responded two weeks later, he asked the Supreme Court of Virginia to order the judge to act. “The Court continues to deny access to this material; Judge AtLee has declined to offer any explanation whatsoever for denying access,” O’Brien told the high court.
The Supreme Court refused his petition March 22, stating that the remedy of mandamus – compelling someone to do something – does not apply to “a discretionary act.”
In the meantime, AtLee set a May 8 hearing on O’Brien’s request for access. Both the York County commonwealth’s attorney and the regional capital defender say they have been invited to attend.
York County Commonwealth’s Attorney Benjamin M. Hahn did not disclose what his position might be at the hearing. “I’m going to be present to assist the court in any way in trying to resolve the situation,” Hahn said.
Douglas A. Ramseur, the capital defender for the Southeast region, also declined to comment directly on the case. “I am going to show up and answer any questions the judge may have,” he said.
Contacted this month, York County Circuit Clerk Lynn S. Mendibur said she was unaware of any order sealing the records in the case. She referred further questions to AtLee, who did not respond to inquiries about the case.
O’Brien, who covered the U.S. Supreme Court for ABC News for two decades, said he wants to review photographs and videotapes from the 1998 trial of Daryl Atkins, whose capital murder conviction led to the U.S. Supreme Court ruling that executing the mentally retarded is cruel and unusual punishment under the U.S. Constitution. The judge at Atkins’ trial, and subsequent proceedings, was the late Judge N. Prentis Smiley Jr., who died in 2008.
O’Brien explained he is working on a book about leading death penalty cases before the U.S. Supreme Court in the past 40 years. He also is involved in a public television production focusing on constitutional issues in criminal cases.
In his motion directed to AtLee, O’Brien said “no access is being sought to any sealed material, only to material that was admitted into evidence, displayed to the jury and that which is part of the public record of the trial in this case.”
O’Brien said he does not understand why he is having such difficulty getting access to records that, as he sees it, should be public. “The statute is clear – the cases are clear – and I’ve already had to wait six weeks,” he said.
Evidence displayed at trial is considered public under the U.S. Constitution, said Lucy A. Dalglish, executive director of the Reporters Committee for Freedom of the Press. “If the people who were in the courtroom at the time were able to see these things, then there is a presumption that they are public,” she said.
Ashby R. Pritchett, the Martinsville circuit clerk and chair of the education committee of the Virginia Court Clerks’ Association, said most court records are public, even if practical accommodations must be made. “If it’s not sealed, then it should be open to public access,” Pritchett said, referring generally to court records.
Under the law, access is not unfettered. Virginia Code § 17.1-208, which requires clerks to provide public access to “records and papers,” also prohibits anyone using a clerk’s office to make copies “as will interfere with the business of the office.”
Pritchett noted that, for some clerks, there would have to be special arrangements for viewing videotapes. The playback machine might be one used in a courtroom, for instance.
Pritchett also noted that, for sensitive evidence such as photographs or recordings, a court official might have to be posted to keep an eye on the records as they are being inspected by a member of the public.
O’Brien provided a copy of a letter to AtLee dated March 7 stating he was willing to abide “by whatever reasonable restrictions you may wish to impose on the access that I seek.”
O’Brien said he is hoping for a quick resolution of the impasse. He said he has a May 1 deadline for his book on death penalty cases. His other project is a documentary for the Public Broadcasting System on prosecutorial misconduct – specifically violations of the Brady rule that requires prosecutors to share evidence that might help the defense in a criminal case.
Virginia Press Association Executive Director Ginger Stanley sees two problems with O’Brien’s experience: one is the delay in getting the issue resolved and the other is the fact that no reason has been given for denying access.
“At the end of the day, the judge rules,” Stanley said. “But he has to have a concrete reason, in my opinion, before he can just close these records.”
O’Brien said he is frustrated by the delay and lack of communication about the court’s concerns. “It makes no sense to me. I just don’t get it,” he said.
In his most recent filing with the Supreme Court of Virginia, O’Brien challenged the trial court’s right to “arbitrarily close the courthouse doors without written explanation.”