VIRGINIA — A circuit court judge has declined a student news organization’s request to unseal a plea agreement rejected in a criminal case involving a Washington and Lee University student charged with the death of another student in a drunken-driving accident.
While he acknowledged the public has the right to access court proceedings and records, Judge Jay Swett determined the public’s access to the document would create substantial prejudice to the defendant’s fair trial rights, said Crovet, Va.-based attorney Alice Neff Lucan. Neff Lucan represented Brian Richardson, department head of Washington and Lee University’s Department of Journalism and Mass Communications, who argued in a Sept. 18 letter to the court that reporters at The Rockbridge Report news organization should have access to the rejected plea deal.
During a hearing Wednesday, the judge said the contents of the rejected plea agreement were so extraordinary “that he was worried opening it now would create so much adverse pretrial publicity they might have to change venue,” Richardson said. However, the judge ruled the records will be unsealed when the trial, which is scheduled to begin Jan. 20, ends.
“We would rather have had him order the thing open, but what he did say was it was the extraordinary circumstances of this one that overcame the presumption of access,” Richardson said in an interview. “He was very careful to say that the presumption here is not only that the public has standing to bring this, but that public access should be the norm.”
The judge did not elaborate what details in the rejected deal were so unusual, Richardson said.
In December 2013, Washington and Lee student Nicholas Perry Hansel gave 10 students a ride from a party in the country back to campus when he lost control of the vehicle and hit a tree stump, overturning the SUV. Kelsey Durkin, a 21-year-old senior at the university, was ejected from the vehicle and pronounced dead at a Lexington, Va., hospital, according to a story published by The Rockbridge Report, Washington and Lee University’s student-run broadcast and online news organization. Three other students were also hospitalized.
Hansel was charged with multiple offenses, including driving while intoxicated, maiming as a result of driving under the influence, reckless driving and aggravated involuntary manslaughter.
In August, Hansel’s attorney and a state prosecutor presented Judge Michael Irvine a negotiated plea agreement. After rejecting the agreement, Irvine recused himself from the case, as required by state law, and the Virginia Supreme Court appointed Swett to preside over the case.
On Sept. 18, Richardson, with assistance from several other Washington and Lee University professors, filed a motion to intervene, requesting the order to seal the plea agreement be withdrawn so Rockbridge Report student journalists could “report, write and broadcast stories about this important case.”
“This is a small community, it hit the community hard, practically everybody on campus knew somebody who was involved,” Richardson said. “In this case, there was a lot of attention being paid to how this case moved through the system, so we thought it was really important that people have access to public proceedings and public documents if at all possible.”
In a Sept. 19 letter to the court, prosecutor Robert Joyce, Jr. argued the proposed plea agreement, if made public, “would most certainly be prejudicial to one or both sides, and thereby very likely taint the jury pool when the case is tried in the future.
The public’s right to know, he said, “does not and should not override both the accused’s and the Commonwealth’s right to a fair trial.”
In a Nov. 25 brief to the court, Hansel’s counsel argued Richardson lacked standing to intervene in the criminal case. Additionally, the brief argued there was no allegation Richardson attended the Aug. 18 proceeding and tried to view the proposed plea deal, or that he objected at that time to the sealing of the rejected plea agreement.
In a response filed with the court on Dec. 2, Neff Lucan argued if journalists and interested citizens do not have standing to intervene, “then orders sealing judicial records and proceedings would be categorically insulated from challenge so long as the prosecution and defense agreed on sealing.”
“This would leave the public and the press,” she said, “with a recognized constitutional and statutory right to access and no way to assert it, an absurd result.”
Neff Lucan said Friday the decision to appeal the judge’s ruling is still being considered. Though he has since recused himself of any involvement in coverage of the case because of his involvement, Richardson said student journalists at the university will likely continue coverage of the court proceedings and of the rejected plea deal, once it’s unsealed.
SPLC staff writer Mark Keierleber can be reached by email or at (703) 807-1904 ext. 123.