An attempt to close pretrial hearings in a capital murder case failed Wednesday.
Attorneys for Kelvin S. Johnson, 25, wanted Richmond County Superior Court Judge J. David Roper to close the hearings, which will deal with what evidence will be allowed at trial and what statements by Johnson will be admissible.
Johnson has pleaded not guilty to charges that include murder, armed robbery and aggravated assault in an Aug. 26 home invasion in which a 69-year-old woman was shot to death and her husband was wounded.
If potential jurors hear evidence that Johnson killed Martha Greene and wounded Tilman "T.C." Greene at their Plantation Road home, they would become biased against him, Teril Thompson argued for the defense.
She said there are precautions set by precedent rulings by the Georgia Supreme Court, but that a man facing a possible death sentence cannot take much comfort in jurors' ability to search their souls for bias and honestly report that in court, or for them to give the same weight to the judge's instructions as lawyers and judges.
"Again, how can you unring that bell?" Thompson asked.
District Attorney Ashley Wright argued that the judge should heed the Supreme Court's words that he cannot close a courtroom without clear and convincing evidence that only that extreme measure will ensure a fair trial.
A judge must also consider the extent and nature of news coverage, Wright said.
In this case, only a few articles about the crime have been published in The Augusta Chronicle .
By contrast, the case of Reinaldo Rivera -- a serial rapist and killer sentenced to die in a deadly attack on an Army sergeant -- generated hundreds of reports in the local media.
Wright said knowing about a crime isn't the issue -- it's a juror's inability to set aside any fixed opinions that makes him biased. She noted that 20,000 people are potential jurors, and said surely 12 fair-minded people can be found.
Roper asked how a person in Johnson's position is to prove his case before the damage might be done.
Both Wright and Augusta attorney David Hudson, who argued against the motion on behalf of The Chronicle , pointed to the past.
Hudson argued that the only cases ever reversed in Georgia based on a claim such as Johnson's were when a defendant requested a change of venue and it wasn't granted.
Hudson said all of those cases took place in small communities where victims or defendants were well-known and there was misconduct by attorneys, witnesses or judges.
There hasn't been a case in Georgia in 35 years where an appellate court upheld a judge's decision to close a courtroom, Hudson said.
He argued that fair trials were held for numerous high-profile murder cases, such as for Timothy McVeigh in the Oklahoma City bombing, Charles Manson and O.J. Simpson.
Roper asked how many were acquitted. Hudson said none, but none of them had their convictions reversed because of pretrial coverage.
Roper ruled that the pretrial hearings would remain open because he couldn't meet the legal standard set for courtroom closure.
Still, he said, he worries that defendants such as Johnson are put in an impossible position of proving what could happen in the future.