Wednesday, January 23, 2013 5:39 pm
Ohio judge weighs whether to keep rape trial open
By ANDREW WELSH-HUGGINSAP Legal Affairs Writer
News organizations including The Associated Press lined up on the other side of the debate Wednesday, arguing that openness is the best way to ensure public confidence in the proceedings.
Judge Thomas Lipps is set to hold a hearing Friday to take testimony from both sides, then decide. The judge has already rejected a request to try the two players separately.
The football players are accused of attacking the girl twice after an alcohol-fueled party in mid-August in Steubenville in far eastern Ohio. Three other students who witnessed the attack but weren't charged are expected to testify at next month's trial. The girl attends a different high school across the river in West Virginia.
The girl and her parents want the trial closed to keep evidence that a judge might rule inadmissible from becoming public, their attorney argued in a court filing Tuesday. That could include "harmful" and "legally non-relevant" evidence, said attorney Robert Fitzsimmons.
Keeping the hearing closed will also protect the girl, who has maintained her anonymity through the proceedings, Fitzsimmons said.
"Closure will help to preserve that anonymity," Fitzsimmons wrote.
The Associated Press generally doesn't identity people who say they are the victims of sexual assault.
Attorney General Mike DeWine, whose office is prosecuting the case, said Wednesday that he has 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 also said the girl will testify even if the trial remains open.
News organizations arguing to keep the hearing open say the case is already subject to speculation it won't be fully investigated and prosecuted because it involves the city's popular football team.
"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.
The lawyer for defendant Ma'Lik Richmond wants the trial closed out of concern that intense publicity and social media commentary could lead to witness intimidation. The attorney, Walter Madison, cited threats he said were made by the hacker-activist group Anonymous to retaliate against people perceived as helping his client.
"If material witnesses are reluctant to testify, this will jeopardize Ma'Lik Richmond's constitutional rights to present a defense," Madison said in a Jan. 11 filing.
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 Richmond 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.
The other defendant has asked that the case be delayed and moved but not closed.
Andrew Welsh-Huggins can be reached at https://twitter.com/awhcolumbus.