ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Saturday, January 25, 1997 TAG: 9701270043
SECTION: VIRGINIA PAGE: C1 EDITION: METRO
SOURCE: S.D. HARRINGTON STAFF WRITER
General District Judge George Harris made a newspaper reporter and members of the public leave a preliminary hearing in a Salem rape case Friday, but reopened the courtroom after an attorney for The Roanoke Times contested his actions.
Salem Commonwealth's Attorney Fred King requested the closing, fearing the accuser would have a difficult time testifying in front of courtroom spectators.
The preliminary hearing was to determine whether there was enough evidence to send charges against Michael Rene Carter to a grand jury. Carter, 38, a Roanoke County resident and former Salem video store owner, was charged in December with raping the 36-year-old Salem woman.
King asked Harris to order anyone not involved with the case, including the 10 to 15 people awaiting trials on misdemeanor charges, to leave the courtroom. King said he normally tries to schedule rape and other hearings that require sensitive testimony at the end of the docket. But Richard Lawrence, one of the defense attorneys, had a conflicting appointment and needed to hold it sooner, King said.
"It's just difficult for a person to testify if a bunch of people are staring holes in your back," King said. If the hearing had been scheduled last, he would not have asked it to be closed, he said.
King said he didn't have a problem with a newspaper reporter remaining in the courtroom.
Lawrence and co-counsel Chris Kowalczuk objected to letting a reporter stay if the public was excluded. Harris sided with the defense and asked the reporter to leave.
The hearing then proceeded, with Carter's accuser taking the stand.
But before the cross-examination of the woman, Stan Barnhill, an attorney for The Roanoke Times, arrived and contested the closing, citing U.S. Supreme Court rulings that have held the public has a First Amendment right of access to pretrial hearings unless a judge finds that a defendant's right to a fair trial is jeopardized.
Barnhill argued that there is a legal presumption in favor of allowing the public to witness court proceedings. "It's up to a party to demonstrate an overriding, extraordinary need to close it."
The defense claimed that news reports could prejudice a jury. King said he wanted it closed only so the accuser would not to have to testify in front of a full courtroom.
Harris sided with Barnhill and opened the rest of the hearing to the public.
Harris certified the charges of rape, abduction, breaking and entering, and aggravated assault against Carter. The charges will be presented to a grand jury Feb.21.
The accuser testified about the alleged rape during the part of the hearing that was closed. No evidence about it was presented when the judge reopened the courtroom.
It is the newspaper's policy not to name accusers in sexual assault cases.
Police reports said Carter's accuser, an acquaintance, told them he visited her the day after Christmas and demanded to be let in. When she refused, he kicked in her door, held her against her will for several hours and beat and raped her, police said.
After the preliminary hearing, Harris found Carter guilty of violating an earlier court order to stay away from the woman and revoked his $60,000 bond. He is being held in the Salem-Roanoke County Jail.
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