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Top court orders public access to bail hearing

The Supreme Court of Virginia has reversed a trial court’s decision closing a pretrial bail hearing to the public and sealing records in the case of a Newport News police officer indicted for murder.

The plaintiff newspaper publishers claimed the commonwealth failed to show a substantial probability that the officer’s right to an impartial jury would be prejudiced if the public knew what evidence supported a finding that he was a danger to the community.

The high court agreed.

“Except in the rarest of circumstances, this [pretrial bail] decision must be made in open court so that the public — including victims of the defendant’s charged crimes and any potential victims of his future crimes — would know how and why, not simply what, the court has ruled on the issue,” Justice D. Arthur Kelsey wrote for the court.

The court said Newport News had the right to make a special appearance in the case to seek an order limiting disclosure of the commonwealth’s sealed motions to revoke bail and limit the officer’s defenses.

But the documents should be unsealed because they “implicated core adjudicatory functions of a criminal trial court [and] were placed before the trial court as exhibits. … Their former status as mere discovery documents has no relevance to the open-courts doctrine,” the justice wrote.

Kelsey was joined Chief Justice S. Bernard Goodwyn, Senior Justices LeRoy F. Millette Jr., and Donald W. Lemons, as well as Justices Cleo E. Powell, Stephen R. McCullough, and Teresa M. Chafin.

The opinion is The Daily Press, et al. v. Commonwealth, et al. (VLW 022-6-051).

Bail hearing

Albin Trevor Pearson, a Newport News police officer, was indicted for second-degree murder and related charges arising from his attempt to arrest a man in 2019.

After Pearson was released on bail, the commonwealth said he posed a danger to the community and subpoenaed various documents from Newport News, including prior investigations into his conduct and city emails.

The commonwealth reviewed the documents and found probable cause to believe Pearson’s pretrial liberty would pose a danger to the public. In addition to revoking his bond, prosecutors moved to preclude Pearson from asserting certain defenses.

Both motions were filed with subpoenaed documents attached as exhibits under seal.

At the beginning of the hearing, prosecutors moved to close the courtroom off to the public and the press.

The trial judge continued the case to allow reporter Peter Dujardin and his employers, The Daily Press and The Virginian-Pilot Media Company, a chance to be heard.

Dujardin and his employers jointly moved to intervene and objected to the commonwealth’s motion to close Pearson’s bond hearing. They also requested that the court unseal prosecutors’ motions and exhibits.

The commonwealth argued that a closed hearing was appropriate because COVID had made jury selection difficult, disclosing the sealed documents could prejudice Pearson’s defense, and the officer’s files were confidential. It also said that closing the court would prevent Pearson’s trial from being tainted by unfairly prejudicial pretrial publicity and would allow prosecutors to fully articulate probable cause.

The trial court sided with the commonwealth, agreeing with its concerns about the difficulty of seating jurors and widespread negative publicity about police shootings. The bond hearing reconvened a few days later in a closed courtroom.

The court later denied public access to the transcript of the bond hearing, as well as the commonwealth’s motions and attachments, because they referred to unrelated incidents that happened prior to 2019.

Meanwhile, Newport News moved to seal the subpoenaed documents, alleging that Pearson’s participation in internal affairs investigations was coerced as a condition of his employment in violation of his Fifth Amendment right against self-incrimination.

The city also contended that the subpoenaed documents were confidential and weren’t subject to public review until they were admitted into evidence at trial.

The trial court found that the city lacked standing and enjoined it from inserting itself in the case without prior court approval.

Dujardin and his employers appealed the court’s closure and sealing decisions, while the city appealed the refusal to consider its sealing motion.

Closed courtroom

“In the context of criminal proceedings, the [open-courts] doctrine imposes a presumption of transparency,” Kelsey wrote. Criminal prosecutions, he pointed out, “are without question events of legitimate concern to the public.”

However, the judge said, “the public’s right of access ‘may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.’”

The presumption of openness can be rebutted by proof that closure is necessitated by a compelling governmental interest and is narrowly tailored. Courts must make specific findings adequate to support closure.

Kelsey noted that whether the open-courts doctrine applies to pretrial bail hearings has been an open question in Virginia, but said courts in other jurisdictions have concluded that it does.

Since the commonwealth had abandoned its argument regarding the difficulty of seating a jury, the court moved on to consider whether pretrial publicity might prejudice Pearson’s right to an unbiased jury.

“To determine whether pretrial publicity constitutes a ‘compelling governmental interest,’ courts must ask not merely whether there is a ‘reasonable likelihood’ of prejudice but rather whether a ‘substantial probability’ of prejudice exists,” the justice wrote. “In plain terms, this means that the risk of prejudice must be so palpable and the need to combat it so necessary that a trial court could not confidently rely on the voir dire process to ameliorate the risk.”

Here, Kelsey found that voir dire was a reasonable alternative to barring the public from Pearson’s bail revocation hearing, and that the sequestration of jurors or a change of venue could provide additional safeguards.

As a result, the trial court “erred by closing the doors of the courtroom to the Newspaper Publishers and the public at large.”

Sealed documents

Kelsey rejected arguments that Newport News didn’t have standing to assert its interests.

However, the justices were unpersuaded by the city’s assertion that the subpoenaed documents weren’t judicial records until they were admitted into evidence at trial.

Kelsey said Virginia law did not require that sealed discovery documents be admitted into evidence before unsealing them.

“This novel argument, if true, would mean that no discovery documents initially sealed … would ever become ‘judicial documents’ available for public inspection if a case ended (as most criminal cases do) prior to an evidentiary trial,” Kelsey wrote.

Further, Kelsey held that “the [commonwealth’s] motion and its exhibits implicate the court’s adjudicatory functions and thus fit squarely within the general definition of ‘judicial records’” subject to public access.

The case was remanded to the trial court with instructions to hear arguments from the parties about which documents should be unsealed.