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Writer gets access to Atkins file, and a tongue-lashing

York County Courthouse (photo by Peter Vieth)

YORKTOWN—A reporter who sought access to unsealed court records from an epic murder case in York County was allowed to view and copy certain portions of the file, but only after a 10-week delay and a public rebuke by the current circuit court judge.

Working on a book about landmark murder cases, legal writer Tim O’Brien hoped to see crime scene photographs and an autopsy report from the 1998 capital murder trial of Daryl Atkins, who was convicted in the robbery and brutal killing of a serviceman. O’Brien also wanted to listen to an audiotape of a co-defendant’s interrogation by law enforcement officials.

York County Circuit Judge Richard Y. AtLee Jr. Tuesday allowed restricted access to all of the materials sought by O’Brien after a hearing where AtLee, the commonwealth’s attorney and the capital defender all expressed concern about the possible effect of publication on the murder victim’s surviving family members, especially his mother.

Commonwealth’s Attorney Benjamin M. Hahn and Capital Defender Douglas A. Ramseur objected to release of three crime scene photographs showing the murdered victim. “They are powerful, graphic and rather morbid,” Ramseur said.

AtLee said he would “reluctantly” grant permission for O’Brien to reproduce the three photographs at O’Brien’s expense. AtLee firmly barred any use of any outside cameras or recording devices in the courthouse to reproduce any of the materials.

As the hearing opened Tuesday, AtLee demanded to know O’Brien’s purpose for requesting trial exhibits. “Can you explain how photos of a victim at a crime scene and on an autopsy table educate your readers on death penalty issues?” the judge asked.

The judge also had pointed criticism about O’Brien’s efforts to gain access to the court materials.

“You have displayed a staggering amount of temerity,” the judge told O’Brien, for arriving unannounced expecting to be allowed access to the voluminous file, asking the Supreme Court of Virginia to intervene, and then taking his story to the media.

In particular, AtLee took issue with the reported version of events on the day O’Brien first asked to see the file. O’Brien had said he delivered a handwritten request for access to trial exhibits at around 10 a.m. on Feb. 23 and was forced to wait for hours without any response. O’Brien implied AtLee had ignored his request throughout the day.

From the bench Tuesday, AtLee explained he was out of the courthouse in the morning of that day and did not receive the note until after a court hearing ended late that afternoon. He said O’Brien’s note requested he be allowed to bring a camera into the courthouse to photograph the evidence.

AtLee said he determined a formal motion should be filed. When O’Brien filed such a motion, AtLee said he was concerned about the exhibits being published without any notice to the victim’s family. He then set a hearing and asked the prosecutor and defender to comment.

Continuing in remarks from the bench, AtLee suggested the late Judge N. Prentis Smiley Jr., who presided over the Atkins case, might have sealed the trial exhibits if he had considered that someone might seek to gain access and expose the exhibits “for private gain.”

AtLee said he found the perspective of the victim’s mother – who was said to object to release of crime scene photos – to be “personally compelling.”

Moreover, AtLee said, “Mr. O’Brien has been unable to articulate any proper educational purpose” for the publication of the materials.

“I am very disappointed,” O’Brien said afterwards about the judge’s remarks.

“This is a judge, I think, that is very hostile to the press,” O’Brien said, noting the judge’s comments about an absence of “educational” purpose. “We’re putting this book together because we think we have something to say about the death penalty that hasn’t been said.”

O’Brien said he remains upset at being kept at bay for so long. For 10 weeks, he said, AtLee had not given any indication why he should not have access to the exhibits.

At the hearing Tuesday, it was clear the judge had expressed concerns to both the prosecutor and defense lawyer about the sensitivity of the victim’s family.

In response to the judge’s invitation to comment before the hearing, Ramseur – the capital defender – wrote that he shared AtLee’s concern about upsetting those involved in the Atkins case. “Since this case has been long concluded, there is no justifiable reason for this Court to allow the unnecessary dissemination of sensitive trial exhibits,” Ramseur wrote.

Hahn, the commonwealth’s attorney, wrote that O’Brien’s case presented “conflicting values.” He agreed publication of certain exhibits would be upsetting to many involved in “this tragic, legal odyssey” that was the Atkins case. He questioned whether publication “is necessary for a ‘scholarly’ analysis of capital punishment or is the exploitation of tragedy for crass, commercial gain.”

Despite those concerns, Hahn said he reached the legal conclusion that existing law required access to the public records in the court’s file under any “narrowly tailored” restrictions as the judge might impose.

The Daryl Atkins case produced a ruling from the U.S. Supreme Court that the U.S. Constitution bars the death penalty for mentally retarded defendants. Atkins’ case was remarkable also for a controversy over whether a co-defendant had been improperly coached before testifying and whether prosecutors should have turned over records of their session with the witness.

The book “Murder at the Supreme Court: Lethal Crimes and Landmark Cases” – authored by O’Brien and fellow Maryland writer Martin Clancy – is scheduled for publication in the fall or winter of this year, according to a publicity website.

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