Hearing slated on keeping trial open

Web posted July 26, 1998

By Kathy Steele
South Carolina Bureau

AIKEN -- Two constitutional rights are set to collide Tuesday in Aiken County as court officials and media confront the issue of pretrial publicity.

It's the first vs. the sixth amendments: freedom of the press and the right of the accused to be tried by an impartial jury.

The case under scrutiny involves a fast-approaching trial for David Mark Hill, the man accused of killing three caseworkers in 1996 at the North Augusta office of the Department of Social Services.

The shootings were widely written about and covered in print and on television. Mr. Hill walked into the office and demanded to know where his family's caseworkers were.

He then shot three caseworkers because he was upset about his then-4-year-old paraplegic daughter being put into foster care, according to the charges against Mr. Hill.

A trial could be held in October. If Mr. Hill is found guilty, 2nd Circuit Solicitor Barbara Morgan has said she will ask for the death penalty.

On Tuesday at 9 a.m., the media and their legal representatives will meet with Judge Marc Westbrook prior to a scheduled hearing for Mr. Hill to sort out the issue of what court proceedings will or won't be open.

The issue of cameras and tape recorders in the courtroom also will be addressed. The meeting is at Judge Westbrook's invitation.

A recent state Supreme Court ruling appears to have reinforced the public's right to an open courtroom.

Bill Rogers, executive director of the South Carolina Press Association, said attorney Jay Bender will be there to represent the organization.

``There have been very few cases where the extra measure of closing portions of a trial have been done and found necessary,'' Mr. Rogers said. ``I don't believe the First Amendment is going to impair someone's right to a fair trial.''

Judge Westbrook previously closed a hearing in Aiken County on Nov. 24, citing concerns that the potential jury pool could be tainted if it read sensitive details about the events of Sept. 16, 1996.

He plans to sequester the jury once the trial begins.

The judge is familiar with covering high-profile cases, having presided at the 1995 pipe bomb trial in McCormick County in the death of Melanie Richey.

The 15-year-old Martinez teen was killed in 1994 when two teen-age boys detonated a pipe bomb in her mouth.

Judge Westbrook enforced similar rules in that case limiting public access to pretrial proceedings.

There is a gag order imposed in the Hill case on attorneys, Aiken County Department of Social Services and family members of the victims.

However, the judge said at the time the hearing was closed to the press and public so family could attend all hearings, because under the state's victims' rights act they have ``the same rights as the defendant.''

There are often lesser ways to address the problem of ensuring a fair trial, in particular the careful selection of jurors, Mr. Rogers said.

Change of venue also is an option but he said, ``That's not good. It brings about expense and hardships.''

Judge Westbrook's concerns are shared by Herbert Johnson, who is the Ernest F. Hollings professor of Constitutional Law at the University of South Carolina.

Holding a fair trial should be paramount, he said.

``Newspeople basically want to get facts out quickly to the public,'' Mr. Johnson said. ``What you have problems with in criminal proceedings is the fear of evidence being leaked ahead of time by the press. When evidence gets out, it pollutes the jury pool.''

If jurors have already made up their minds, Mr. Johnson said, ``that's not fair to the defendant.''

The issue of cameras in the courtroom, particularly video cameras, also is a concern, he said. The O.J. Simpson trial is a prime example of how cameras can change the tenor of a trial, he said.

``It becomes more like a gladiator contest between lawyers,'' Mr. Johnson said. ``Who's got the best fighter on their side?''

Despite the closed hearing in November, Judge Westbrook has made himself available to the media to discuss procedural matters and any motions under consideration. And he has promised a totally open trial, once the jury is sequestered.

Judge Westbrook is from South Carolina's 11th Judicial Circuit, which covers Edgefield, Lexington, McCormick and Saluda counties.

He was appointed trial judge in the Hill case by the South Carolina Court Administration.