Judge rules that rejected plea deal will remain sealed

A circuit court judge this week ruled that a rejected plea deal would remain sealed in a case involving a fatal car crash that killed a Washington & Lee University student in December 2013.

However, Judge Jay Swett, appointed to hear the case in Rockbridge Circuit Court, set forth steps that must be taken before court proceedings or court records are closed or sealed:

  • That the court start with a presumption against closure or sealing;
  • That notice to the public had to be provided before closure or sealing could take place;
  • That a hearing should be held where the burden is on the moving party to demonstrate a substantial probability that the information will interfere with fair trial rights.

Brian Richardson, who has taught at W&L since 1990 and heads the journalism and mass communication department, sought to unseal the record, but said there will not be an appeal to Swett’s decision, unless something changes significantly.

“We expect there to be an outcome to this case, quickly enough, where the judge said as soon as the case is resolved, open the plea deal,” Richardson said, noting his thanks to attorney Alice Neff Lucan and the Student Press Law Center for their help on the case. “We expect that we’ll be able to get that done with the resolution of the case.”

Though the ruling is mixed, First Amendment and Freedom of Information Act advocates are hailing the decision as positive.

“Obviously, we had hoped that the judge would have ordered release right away, but he used a balancing test, which we thought was appropriate,” Richardson said. “Even though we thought there were compelling circumstances in this case, he made clear that there’s a presumptive right of access for the public and news media.”

Rockbridge County Circuit Court Judge Michael Irvine in August rejected a deal between the commonwealth’s attorney and Nicholas Hansel, who was charged in the Dec. 3, 2013 crash that killed Kelsey Durkin, a 21-year-old senior. Hansel is believed to have been driving the SUV that was carrying 10 other students who had been to a late-night off-campus fraternity party.

Irvine ordered the plea agreement sealed and the terms were not revealed in open court. A jury trial is scheduled to begin Jan. 20, 2015.

Richardson and the W&L journalism faculty was troubled that the judge sealed the agreement without offering any reason for doing so. Toni Locy, associate professor of journalism and mass communication at W&L, spearheaded the initial efforts to unseal the agreements.

Richardson wrote in an effort to have the plea deal unsealed that “A review of federal  and state case law reveals that courts typically do not temporarily seal plea agreements unless defendants are cooperating, and one or both parties want to protect confidentiality and the safety of the witnesses in an ongoing investigation.”

Virginia and federal decisions have recognized that access to court proceedings if a fundamental constitutional right of the press and the public, but Rockbridge County Commonwealth’s Attorney Bucky Joyce argued in a court filing that “some of the provisions/terms in the 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.”

He further wrote that the public’s right to know “should not override both the accused’s and the commonwealth’s right to a fair trial.”

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