Media companies file for access to Huguely evidence

George Huguely was back in court March 16, and the headline that came out of the motion hearing that brought him there ran in publications around the country: Attorneys for convicted murderer to seek retrial.

But Huguely’s fate wasn’t the focus of the proceedings. At issue was the evidence in his 13-day trial, which ended February 22 with a guilty verdict and a recommendation of 26 years in prison for the murder of ex-girlfriend Yeardley Love. Despite the fact that the First Amendment protects the public’s right to open criminal proceedings and common law dictates trial documents be public, too, the evidence in the Huguely case has remained sealed.

Several media companies, including the Washington Post and Gannett, the parent company of USA Today, are still pushing for access to that evidence. Charlottesville attorney H. Robert Yates III, who is representing the companies, said the fight actually started weeks ago, on the day the prosecution showed the video of Huguely’s interrogation by police conducted the morning after Love was found dead in her apartment.

Everyone in the courtroom heard the exchange between the police and Huguely: the questions about what happened in Love’s bedroom, the nature of the cuts and bruises on his hands and arms, and his apparent shock upon learning Love was dead.

There was just one problem: Nobody but the jury could see the TV. Ditto the graphic showing the layout of the apartment, the incriminating e-mails between Huguely and Love, the text messages.

Trial observers—press included—have a well-established right to see what the jury sees, Yates said. Plenty of U.S. and Virginia case law says so.

“It’s a check on the judiciary, and it makes sure that there aren’t secret decisions,” said Yates. “People need to be able to determine whether the jury got it right or wrong. To do that, you need to be able to see the evidence. If you can’t see or interpret the evidence, what’s the point?”

It wasn’t supposed to fall out this way, said Yates. The prosecution and defense had approved a media plan that directed trial documents be posted to the Web the day after they were offered in court. But Yates said the plan changed, quietly and without input from the media, via a hearing before testimony began. When it became clear the court had effectively pulled the curtain, Yates filed a motion to review the original media plan. But Circuit Court Judge Edward L. Hogshire said he couldn’t interrupt court proceedings to address the issue.
Understandable, said Yates, in a high-profile murder trial in a small city. But not really acceptable.

Hearing police describe a diagram of Love’s apartment “doesn’t mean anything unless you can see the diagram,” he said. And how can observers have a true understanding of the merits of the case without seeing something as key as Huguely’s reaction to police questioning?

“Each day that this goes on, it’s a separate First Amendment violation,” said Yates.

He took his clients’ complaint to the Court of Appeals in Richmond to ask for a writ of mandamus, an order commanding an official to follow established law—in this case, letting the public and the press have the same view as the jury. The effort failed, Yates said, because the Virginia Supreme Court recently decided courts shouldn’t go the mandamus route when issues of access arise during an ongoing trial.

Instead, the appeals court said complaining parties should wait until the trial’s end and request the documents again. So wait they did. And they’re still waiting.

Opposition to the release of the evidence exhibits and documents created a rare moment of unity between the prosecution and the defense in the case. According to reports out of the March 16 hearing, Commonwealth’s Attorney Dave Chapman told the judge he thought the evidence should stay sealed for now. In agreeing, Huguely lawyer Rhonda Quagliana dropped the bombshell: Making the evidence public could hurt Huguely’s chances of finding a fair jury for a retrial.

Quagliana also said releasing the documents now could result in “irresponsible” online reporting of the details within.

That argument doesn’t hold water, Yates said.

“There have been good journalists and bad journalists since the advent of writing,” he said, and a media circus isn’t a good enough reason to shut down access.

William & Mary law professor and constitutional scholar Timothy Zick said Yates has a pretty solid argument.

“The purpose for having the right to access is so the public can be fully informed,” Zick said. “If you weren’t able to see the proceedings, you could argue it wasn’t open.” The issue gets sticky, he said, when you take into account that any access going forward will likely have to mirror the kind of viewing experience the public should have had at the trial. How do you mimic real-time exposure to the evidence? A TV set up in a courtroom basement showing the Huguely interrogation, watchable on request?

Actually, that might be exactly what happens, Yates said. Hogshire asked him to come up with a plan to make the evidence public. Yates has until this Friday to complete it. His clients don’t have any interest in examining bags of DNA, he said, but offering access to a computer where reporters could view the e-mails and texts and watch the interrogation could solve the problem.

Even then, the legal wrangling may not be over, he said. He and the companies he represents are still considering filing an appeal to the Virginia Supreme Court on the writ of mandamus issue. They think the tool should be available as a remedy for First Amendment challenges during criminal trials.

“It’s not just that we disagreed with the decision, it’s that the process is also flawed,” Yates said. Since it’s unlikely the state Supreme Court justices would change their minds, he said, it’s conceivable this leftover argument from Charlottesville’s most notorious trial in decades could end up before the United States Supreme Court.

Otherwise, he said, the cycle of judges denying access unreasonably only to have their decisions overturned later when the damage is done could continue indefinitely, “and this could go on forever,” he said.