It’s been nearly four months since the Daily Press requested a hearing at Suffolk Circuit Court into a lack of media access to a state lawmaker’s criminal case in December.
But with no hearing yet scheduled, the newspaper will file another motion this week asking that the matter be heard — and soon — even if it means a new judge is appointed to the case.
“We need to get this process rolling,” said Johan Conrod, an attorney with the Kaufman & Canoles law firm, which is representing the Daily Press. Conrod said he’s made “repeated attempts” over the past four months to get a hearing on whether a Suffolk juvenile court judge acted improperly when he barred the media from attending a probable cause hearing against Del. Rick Morris, R-Suffolk, on Dec. 15.
“We’ve been asking for a hearing since before Christmas, and we’re now in the second week of April and still don’t have a hearing date,” Conrod said.
The Daily Press, Virginian-Pilot and Smithfield Times want the full hearing transcript of the closed-door December proceeding. They also want a declaration that Suffolk Juvenile and Domestic Relations Judge Robert S. Brewbaker Jr. erred in having his bailiffs block the media at the courtroom door for the hearing on Morris’ child cruelty case involving his wife’s son.
Moreover, the media want assurance that the trial in Suffolk Circuit Court will remain open.
At the seven-hour hearing on Dec. 15, six of the seven felony child cruelty charges against Morris were dismissed — with one going forward to a grand jury — while seven misdemeanor assault charges were dropped. But Brewbaker wouldn’t allow the media to attend that hearing, given that “the key witness in these charges is a child,” and rebuffed protests from reporters.
Morris has steadfastly maintained his innocence, denying that he ever abused the boy.
In late January, after all the Suffolk Circuit Court judges recused themselves from the criminal case, the Virginia Supreme Court’s executive secretary’s office appointed Judge Louis R. Lerner, a retired jurist out of Hampton, to hear the matter.
At the time of his appointment, the Daily Press’ request for a hearing had already been filed for a month. Now, though Morris’ criminal jury trial is scheduled for May 18, the issue of media access is nowhere to be found on the docket.
On Tuesday, the Suffolk Circuit Court clerk’s office finally told Conrod that Lerner said he didn’t have any available dates to hear the media issue until after the trial. The judge “advised me that should a date open up and become available, he would let me know and I will contact all parties immediately,” Suffolk Circuit Court criminal court administrator Ed Davis wrote to Conrod.
Conrod said he would file another motion Wednesday, arguing that the media access issue must be hashed out before trial. “This hearing might take an hour, maybe two,” Conrod said. If that’s not possible quickly, Conrod said, a new judge is necessary.
Marisa Porto, editor and publisher of the Daily Press Media Group, said that as a member of the Virginia Freedom of Information Advisory Council, she often hears from government officials that the remedy for a rebuffed open-records request is to take the case to court. But courts are not always models of openness, and “Virginia’s citizens get left in the dark” as a result.
In the Morris case, Porto said, the Daily Press objected “when a judge ruled that we couldn’t sit through a court hearing involving a state legislator accused of a crime.”
“Now months after repeated requests for a date, we’re told this judge doesn’t have the time to hold a hearing until after the criminal trial,” she said. “This is beyond frustrating.”
Betsy Edwards, the executive director of the Virginia Press Association, said it makes no sense that the media access issue still hasn’t been scheduled.
“Why is it taking so long?” Edwards asked. “The public’s right to know is important enough that it should be a priority. Three and a half months is a long time. … One would think they could make time to have a hearing. To do otherwise seems to be uncooperative at the very least, and unnecessarily difficult.”
It’s crucial, Edwards said, for the media to get the transcript of the lower court proceeding before the full trial takes place. That transcript, she said, would be “somewhat irrelevant” after that. And press access to a court hearing, she contended, is even more important when the defendant is an elected official.
“Courts should operate with utmost transparency — how they voted on a decision and what was their thinking,” she said. “The whole thing is somewhat odd. Would they do this for someone else? Would you have been kept out of that courtroom for someone else? I doubt you would have. That’s the part of this that is the worst — that they decide to keep you out when it’s an elected official.”
When reporters were blocked from the hearing on Dec. 15, the Daily Press sent Conrod to the courthouse to press for access. Conrod — initially physically pushed out of the courtroom by a bailiff — eventually was able to get in to the courtroom to make the case under the First Amendment and Supreme Court decisions.
Still, Brewbaker held firm.
The Daily Press filed an appeal the next day, then a motion for the transcript on Dec. 20. That was the day that Morris — who represents Isle of Wight County in addition to Suffolk — came out with a detailed statement about what happened at the hearing. But the media couldn’t verify his account.
“That underscores the problem with closing the hearing in the first place,” Conrod said in December. “Because now the defendant is selectively quoting from portions of the closed hearing without the benefit of any of the testimony or other context of the hearing.”
In late January, prosecutors asked a Suffolk grand jury to indict Morris on two felony child cruelty counts, including one that had previously been dismissed, and reinstate two of the dropped misdemeanor assault charges.
The grand jury agreed.
Dujardin can be reached by phone at 757-247-4749
