The Daily Press and Virginian-Pilot made significant strides on Friday in recent efforts to keep Newport News courtrooms open to the media and public.
First, a three-justice panel at the Virginia Supreme Court voted to grant the newspapers’ appeal to a closed bond hearing earlier this year for a Newport News police officer charged with murder, meaning the case will be heard by the full seven-member Supreme Court.
Then, a Newport News Circuit Court judge handed down two rulings in support of news media access in two pending high-profile cases.
Circuit Court Judge Christopher Papile vacated media restrictions a juvenile court judge imposed in the Heritage High School shooting case in early October.
Papile also allowed the media into an evidence suppression hearing Friday – over the objection of the defendant’s attorney – in the case of the first Newport News police officer killed in the line of duty in more than 25 years,
Here’s a rundown of the three cases:
Appeal to the Virginia Supreme Court
The Daily Press and Virginian-Pilot contend that Circuit Court Judge Margaret Poles Spencer didn’t have legal justification to close an April bond hearing for then-Newport News police Sgt. Albin Trevor Pearson, who is accused of killing Henry Kistler “Hank” Berry III in his home in late 2019.
Officers were trying to take Berry into custody on a misdemeanor charge of abusing the city’s 911 phone system. He was shot during a struggle over a Taser.
In March, prosecutors asked Spencer to jail Pearson pending trial, but requested the bond hearing be closed because publicity about the case could make it more difficult to seat an impartial jury.
Spencer closed the hearing, though she ultimately decided not to revoke the officer’s bond. The reasons for the motion to revoke bond and her decision are still unknown.
The newspapers, represented by attorneys Brett Spain and Bethany Fogerty of Willcox and Savage law firm, filed a petition for appeal with the Virginia Supreme Court — asserting that Spencer had no legal justification to bar the public from the bond hearing.
The news organizations asserted that, although the hearings have already taken place, an appeal is warranted to ensure that other judges don’t do the same thing going forward.
On Friday, the Virginia Supreme Court announced that the three-justice panel had voted to send the case to the seven-member Supreme Court for a full hearing, to include briefs from all parties and oral arguments in Richmond.
Only about 60 cases across the state have been granted full appeals so far in 2021, out of thousands of petitions annually.
Heritage High School shooting case
A 15-year-old student is charged with shooting two fellow students, both 17 years old, on Sept. 22 at Heritage High School.
The felony charges against him include two counts of aggravated malicious wounding, which are punishable by life in prison.
The newspapers had the accused shooter’s name from several independent sources, then confirmed that name through publicly filed search warrant affidavits. The affidavits also contained the victims’ names.
The news organizations opted not to publish the names thus far. But in early October, Juvenile and Domestic Relations District Court Judge Shawn W. Overbey ordered the Daily Press not to print the names it already had.
“The court finds that the disclosure of the names of the juvenile and the alleged victims in this matter would not be in the best interest of the juveniles,” Overbey wrote.
On Friday, Fogerty asked Papile to vacate Overbey’s order, calling it an unconstitutional form of “prior restraint” that’s a violation of the First Amendment and can’t be allowed to stand.
The U.S. Supreme Court has ruled the government – including judges – can’t “restrain” a publisher from printing information, except for extremely rare occurrences such as to protect troop movements during wartime.
Fogerty asserted that Overbey’s order saying that releasing the minors’ names isn’t in the minors’ best interests “simply isn’t a compelling interest that is sufficient to justify a prior restraint.”
Newport News prosecutors and the Newport News Public Defender’s Office said they did not ask for Overbey’s order — that the judge acted on his own. They agreed with the newspapers that the order should be vacated.
“I believe it was improper,” Newport News Deputy Commonwealth’s Attorney Travis White said, adding that “the commonwealth offered no evidence to support what the court did.”
“We would certainly support vacating of the order as unconstitutional,” said Newport News Assistant Public Defender Emily Hunt.
Moreover, Fogerty also contended that Overbey had no legal justification to bar a reporter from a status hearing in the Heritage shooting case.
Under Virginia law, juvenile court hearings are presumed open if the child is at least 14 years old and the offense would be a felony if committed by an adult. Exceptions can be made “for good cause shown,” with the findings having to be put on the record.
But Fogerty said the fact that the judge did not spell out his decision and reasoning in writing was all the more concerning.
In the end, Papile tossed Overbey’s order blocking the juvenile names from being released. He also reversed the order that barred the Daily Press from the status hearing.
“I vacate the orders of Oct. 7, both written and unwritten,” Papile said.
Vernon Green officer slaying case
Also on Friday, Papile denied a defense motion to block the media from an evidence suppression hearing in the case of a man charged with killing a Newport News police officer in early 2020.
Vernon E. Green II, of Newport News, is charged with murder after he fled from officers questioning him about smoking marijuana.
Officer Katie Thyne was trapped in his car door as he crashed into a nearby tree. She died en route to the hospital.
In August, the Newport News Public Defender’s Office – which was representing Green at the time – and Newport News prosecutors asked that the newspapers be barred from a suppression hearing in the case.
More recently, however, prosecutors said they no longer object to the media’s presence.
But Green’s new defense attorney, Tyrone Johnson, said Friday that he not only did not want the media at the suppression hearing, but that he also wanted the press blocked from all future hearings in the murder case.
“I just don’t see how it benefits my client for this to be publicized,” Johnson said after the hearing. “It makes it harder for my client to have a fair trial” and “could taint a possible jury,” he said.
Spain, the attorney for the Daily Press and Virginian-Pilot, said mere speculation about an unfair trial isn’t enough to overcome the strong presumption of court openness. The media, he said, serves as “surrogates to the public” who can’t always attend court hearings.
“A police officer was killed in the line of duty,” Spain said. When a case is high profile, he said, the media’s access “is even more important.”
Papile sided with the newspapers, saying he didn’t hear anything that would warrant keeping the press out of the courtroom.
“There will be community scrutiny, and the community will follow the matter,” he said.
Concerns about juries being tainted, Papile said, could be overcome by starting out jury selection with more jurors and questioning jurors extensively before they are picked.
At the suppression hearing that followed, Johnson asked to exclude evidence that Green had a previous criminal record – a 2003 cocaine conviction – that led him to be out on probation.
The attorney also wanted to bar evidence that Green was out on bond on a North Carolina bank robbery charge. Bringing up both of those facts during the jury trial, Johnson maintained, would be prejudicial and unfair to his client.
But Deputy Commonwealth’s Attorney Dennis Guthinger said the fact that Green was on probation from a felony conviction on the night of Thyne’s death – and had a gun in his car in violation of that probation – could explain why he drove away from the officers.
“We are trying to show why he did what he did,” Guthinger said. “Why he put this car in drive, why he ended this officer’s life.”
Guthinger said he wasn’t yet sure whether he planned to tell jurors about the bond in the North Carolina armed bank robbery into the case, so that matter wasn’t considered Friday.
Papile ruled that the prosecutors should be allowed to explain a possible motive for Green’s fleeing the scene, including introducing his previous criminal conviction. The judge said he would devise a way to bring it up to jurors in a fair way.
