Closure of trial at issue

STEUBENVILLE – Local and national news organizations are expected to argue Friday that further juvenile court proceedings involving two Steubenville High School student-athletes charged with rape should remain open to the media and public.

But Ohio Attorney General Mike DeWine, an attorney for one of the two defendants and the attorney of the 16-year-old victim are calling for the coming trial to be closed to the public.

Attorney Robert Fitzsimmons, who represents the victim, filed a motion Tuesday in Jefferson County Juvenile Court asking that he and the victim’s parents be allowed to be present at the trial of the two juveniles and that the public and media to be barred from the proceedings.

Trent Mays, 16, of Bloomingdale and Ma’Lik Richmond, 16, of Steubenville have been charged with rape in connection with an incident that allegedly happened Aug. 11-12. Mays also faces a charge of illegal use of a minor in nudity-oriented material for allegedly having a picture of the victim in an outgoing text message from his cell phone. Attorneys for both defendants have denied the charges in court.

Fitzsimmons will join attorney Walter Madison, who represents Richmond, in a hearing at 1 p.m. Friday in the Jefferson County Justice Center concerning motions filed in the case, including the closure of proceedings.

Madison also has requested the trial be held elsewhere and that the trial, which is scheduled to start Feb. 13, be continued. Attorney Brian Duncan, who represents Mays, also has filed a motion for continuance but said he intends to file a motion to close the case.

Visiting Judge Tom Lipps earlier this week overruled a motion by Madison requesting that Mays and Richmond have separate trials.

Lipps will make the determination of guilt or innocence after the trial and there will be no jury.

Ross Gallabrese, Herald-Star and The Weirton Daily Times executive editor, said, “We believe the proceedings should remain open to ensure the public can continue to have confidence in the judicial process.”

The newspaper will have an attorney present to argue against closure.

The case has received national news coverage, with some news organizations raising questions about the way the investigation into the alleged incident has been handled..

National and state news organizations also will have legal representation at the hearing Friday.

“Closure of these proceedings would only intensify these concerns and fan the flames of any perception that the allegations will not be handled properly,” said Columbus attorney Kevin Shook in his filing on behalf of the AP, ABC, CNN, CBS News, The New York Times and WEWS-TV.

Shook said Lipps, a judge brought in from Hamilton County to oversee the case, has other options for dealing with potential witness intimidation.

These include issuing a contempt order or taking other action to enforce Ohio law prohibiting the harassment of witnesses, Shook said.

He said the media has a well-established constitutional right to cover court hearings and Madison would have a difficult time successfully arguing for the exceptions allowed to such coverage. Those include “a reasonable and substantial basis” that an open trial would endanger the defendant and the trial’s fairness, and that the potential for harm outweighs the benefits of an open trial.

“Moreover, the public has an extremely high level of interest in gaining a full understanding of the events surrounding the alleged sexual assault of this young woman, so that appropriate measures can be taken to protect other young women in the future,” Shook’s filing also said.

Madison prior to the start of the October probable cause hearing filed a motion to have the proceedings closed, arguing at that time to protect the identity of his client.

Lipps ruled the public interest in the case outweighed the issue of closing the hearing and protecting the privacy of the juveniles charged. He said then the court has to protect the dignity of the court and that doesn’t happen by holding secretive hearings.

Fitzsimmons in his motion to close further proceedings, said the hearings will involve “highly sensitive and personal matters” for his 16-year-old client, whom he refers to only as Jane Doe in the motion.

He claims the media and the public will hear inadmissible evidence during the hearings.

“Jane Doe has, to the extent possible, kept her anonymity throughout these proceedings and rightly so as a 16-year-old victim. Closure will help preserve that anonymity and more importantly keep inadmissible evidence from being published by the public in whatever fashion they elect,” he said in his motion.

“Jane Doe acknowledges the press’ right, guaranteed by the First Amendment of the United States Constitution, to cover newsworthy events. However, this right is not boundless. This court is already aware of the massive media and public attention generated by these cases and closure is the only alternative that can protect Jane Doe from improper use of inadmissible evidence that is either proffered, tendered or argued in open court,” Fitzsimmons said.

Fitzsimmons said his 16-year-old client is not requesting to be present throughout the proceedings, only her parents.

DeWine said Wednesday he’s met with the girl and she’s “doing OK.”

“We’re dealing with a 16-year-old victim,” DeWine said. “It’s difficult enough for her to testify without testifying in front of the whole world.”

DeWine said the girl will testify whether the trial is closed or not.

“I just think it’s the right thing to do under all the circumstances for it to be closed for her,” DeWine said.

DeWine’s office has been providing media outlets with a copy of the transcript of the probable cause hearing in which the victim’s name is stated several times.

The Herald-Star has a policy of not publishing the names of victims of sexual abuse.

Madison, in his motion to close the hearings and trial to the public and media, said that many people who have posted items on social media believe his client and co-defendant, other members of the high school football team and certain members of the public are guilty of the alleged crime.

He said the hacktavist group Anonymous has threatened to release sensitive, personal information about those individuals it believes are helping “cover up” this alleged crime.

“It has posted YouTube videos stating that unless those involved in the alleged crime and those who it believes are protecting the juveniles in this case apologize, certain actions will be taken against them,” Madison said.

“In addition, it has released statements that if it believes an individual does help the juveniles in this case, it will release their private information to the world. Anonymous has staged protests in Steubenville, raising tensions and emotions of the local community,” Madison said in his motion.

Anonymous held rallies on the steps of the Jefferson County Courthouse on Dec. 29 and Jan. 5. A Stand Up for Steubenville rally was held Jan. 12 at Jim Wood Park.

Madison claims the retaliation threats have created an atmosphere of intimidation, and witnesses who could be beneficial to Richmond’s defense are unwilling to come forward with information.

“If material witnesses are reluctant to testify, this will jeopardize Ma’Lik Richmond’s constitutional right to present a defense. This is a reasonable and substantial basis to believe that public access would endanger the fairness of the adjudication,” Madison said.

“While this is a very serious offense being alleged, the harm of Ma’Lik Richmond not receiving a fair trial outweighs any right the media and public have in viewing this trial,” he said.

Madison said, due to the threat made by Anonymous, and the polarizing of the community into divergent groups, there is no alternative to having the proceedings closed to the public.

“Since Anonymous is threatening those it views as helping Ma’Lik Richmond, any public proceedings would allow them to retaliate against any witness called by Ma’Lik Richmond,” he said.

DeWine said he’s not concerned about social media or Internet influence because the trial is being held before a judge.

“He’s going to do what’s right,” DeWine said Wednesday.

Meanwhile, a dozen college students were expected to enter the state attorney general’s office this morning to present DeWine with a petition signed by 70,000 people calling for full prosecution of anyone involved in the case.

Members of Ohio State University’s Choice USA Chapter, a national organization of students focused on reproductive justice, and members of the equal rights group UltraViolet were expected to offer comments.

“We will deliver these petitions to the attorney general to demand justice for the young woman,” said Diana Sencherey, Choice USA chapter leader at OSU. “To see one person so disrespected hurts the victim and damages the whole community, and Ohio deserves better than that.”

“70,000 UltraViolet members stand behind the students in Ohio today in saying enough is enough. There have been far too many get-out-of-jail free cards in this case, and AG Mike DeWine should know the whole world is watching Steubenville, and we look forward to his response,” said Shaunna Thomas, co-founder of UltraViolet.

(Law can be contacted at The Associated Press contributed to this report.)