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A Douglas County judge closed a pre-trial hearing to the public and press in a criminal case involving the death of a 2-year-old child, prompting The Record-Courier to protest.
District Judge Tod Young granted a motion from defense attorneys for Trent Getty, who is accused of killing his daughter a year ago.
At the beginning of a three-day hearing starting Wednesday, the judge told a Record-Courier reporter to leave the courtroom without providing any opportunity for the newspaper to make an argument for why the hearing should remain open. Soon after, Editor Kurt Hildebrand delivered a written objection to the order to Young’s office.
Hildebrand’s arguments are based on the Press-Enterprise II case holding that pre-trial hearings are presumed to be open. Before a judge can rule, he must hold a hearing on the motion to close and make findings.
I gave Terri Russell of KOLO News in Reno a brief interview outlining the problem on Thursday.
As I noted with her, there haven’t been many closed hearings in Nevada lately, but it’s not uncommon for defense attorneys to try to keep the press and public out of courtrooms where damaging evidence might be presented. What is unusual, I said, is for a judge to grant a closure motion without giving the public or press a chance to be heard.
Indications here are that Judge Young is attempting to keep the jury pool — residents of Douglas County — untainted by what they may read or hear in the press. Presumably, defense attorneys believe they can suppress evidence at the hearing stage from coming to light at trial.
But it’s a big leap from potential bias to a tainted jury pool — a leap that can’t be taken without a hearing. Closing a hearing is a serious step, for reasons beginning with the fact that most cases never actually get to trial. They are, instead, decided in hearings.
There are many alternatives short of closing a hearing, particularly one scheduled to last for three days. The judge seemed to have one in mind when he told the Record-Courier that some portions of the hearing may be open.
In other words, even if the judge were to find that some portions of the testimony or evidence may be prejudicial to the defendant, that doesn’t mean the entire hearing must be closed. That’s exactly why there needs to be a hearing beforehand on the motion to close — to sort out those kinds of issues.
Also, the defense is throwing up a hypothetical situation — the jury pool will be tainted by pre-trial publicity — without offering any proof. How is it prejudiced? In what way? How extensively? The judge would have to assume that he couldn’t pick an unbiased jury months before that process has even begun. (The trial is scheduled for March.)
He shouldn’t rule based on hypothetical circumstances, and he certainly shouldn’t rule without hearing any arguments from the other side of the issue. That alone is enough to get a verdict appealed.
I’m also disappointed that prosecutors didn’t object to the motion for closure. They do, after all, represent the public.
However, prosecutors are more focused on a conviction than on the issue of open courts vs. fair trial. Often, the reason they don’t object is the same reason a judge might rule without hearing all sides: They’re looking down the road at a potential change of venue — a valid remedy if, indeed, the jury pool has been tainted — and simply don’t want to see the trial delayed or moved out of their county.
That’s not exactly a goal of pure justice.
On the other side of the coin, however, are defense attorneys who will file a motion to close a hearing knowing that it will simply generate more interest in a case among the press, helping them win the argument of prejudicial publicity and gaining a change of venue.
I can’t say exactly what’s going on in this case, though, because none of the pertinent issues were addressed before the order was made.
