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Virginia Supreme Court takes up court access case in fatal police shooting

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Margaret Spencer

The Virginia Supreme Court has taken up a case that centers on balancing the rights of the accused versus the public’s access to criminal trials that stems from a fatal police shooting and the confidentiality of police internal affairs records.

The appeal was filed by the Daily Press, the Norfolk Virginian-Pilot and reporter Peter Dujardin against the state over decisions made by a circuit court judge to close a hearing and to seal documents in the pending second-degree murder trial of Albin Trevor Pearson, a Newport News police officer who allegedly killed a man in 2019 while attempting to make an arrest for a nonviolent crime.

“The Commonwealth’s motion to close proceedings involving murder charges brought against a police officer and its filing of related judicial records under seal raise issues of the utmost importance to the public, particularly given the ongoing national debate about the use of force by police,” argued the newspapers’ lawyers, Brett A. Spain and Bethany Fogerty, in their petition to the state Supreme Court.

They cited a 1980 U.S. Supreme Court case brought by Richmond Newspapers that held the First Amendment guarantees the right of the public to attend criminal trials.

Brandon T. Wrobleski, a prosecutor in the case, countered in a brief opposing the petition that, “The Commonwealth’s goal was not to deprive the public of access or to conduct proceedings in secret, but to protect ... Pearson’s right to a fair trial.”

“The public release of the documents at issue would cause actual, not speculative, prejudice to the defendant. The Commonwealth submits that the trial [judge] was in the best position to evaluate that claim and the effect that unsealing would have on the fair conduct of the ... trial,” Wrobleski wrote.

Newport News authorities stepped out of the case that involves a city police officer. It is being prosecuted by the Suffolk Commonwealth’s Attorney’s office and presided over by Judge Margaret Spencer, a retired Richmond Circuit Court judge.

Newspaper accounts said police were attempting to arrest Henry Kistler Berry III in his home for abusing the 911 phone system — a misdemeanor — when Berry was shot and killed during a struggle.

According to pleadings filed with the state Supreme Court, after a Nov. 13, 2020, probable cause hearing, Pearson was indicted and his trial set for October 2021.

The city of Newport News opposed a request from prosecutors to turn over records including police internal affairs documents. But Spencer denied the city’s request to not produce the records.

Then on March 2, prosecutors filed under seal a 91-page motion to Spencer asking she revoke Pearson’s bond. And on March 18, they filed a motion asking that the judge preclude Pearson’s lawyers from using certain defenses accompanied by 356 pages of exhibits also filed under seal.

“The Commonwealth did not provide public notice of the proposed sealing in either instance,” complained the newspapers’ lawyers. The April 5 bond revocation hearing was closed at the request of the commonwealth’s attorney’s office citing the need to talk about sealed documents attached to its motion.

No written request for closing it had been made beforehand, said the newspapers’ petition. Dujardin objected to the closing, and the hearing was delayed until April 26 to allow the public to be heard on whether the closing was appropriate.

At the April 26 hearing, prosecutors argued they needed a closed proceeding because they needed to reference the sealed material.

They claimed the defendant could be prejudiced if the public had access to the documents and that the court would not be able to seat an impartial jury given the nature of the case and publicity about unrelated police shootings.

Spencer expressed concern about possible difficulties in seating an impartial jury and denied public access to the bond hearing, which was held on April 30. Ultimately, she allowed Pearson to remain free on bond. She later denied public access to the sealed motions to revoke bond and to preclude certain defenses.

Among other things, the newspapers contend that Spencer erred by: granting an oral motion to close the courtroom and denying access to the documents without notice of the proposed sealing or closing or evidence of a compelling interest to do so; finding there were no less restrictive alternatives to closure and sealing; and failing to analyze the prosecutors’ documents to determine if any of them justified closure or continued sealing.

The Suffolk Commonwealth’s Attorney’s office disputed those contentions and contends the sealing and hearings closure were all done properly and in the interest of protecting Pearson’s right to a fair trial.

L. Steven Emmert, a Virginia Beach lawyer who writes for the Virginia Appellate News & Analysis website, said that if the justices follow the usual protocol, the case may not be argued until the April session.

“But the court can expedite matters where, as here, the right may be lost due to delay if the court doesn’t speak immediately,” he said.

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