At a hearing Dec. 29, both Prosector Ted Adams and Messel’s defense attorney Dorie Maryan argued for a closed pre-trial hearing regarding the defendant’s past. Brown County Judge Judith Stewart ruled to keep it open.
“The parties have not shown that an entire hearing on proposed rule 404(b) evidence should be closed,” Stewart said in the order.
404(b) evidence would be citations and information regarding Messel’s criminal past and previous bad acts.
However, she said the parties did prove a need for the evidence to be submitted in secret before being released to the public. After reviewing the evidence, Stewart could rule to close the hearing or some of the hearing’s evidence.
In Indiana it is rare for any hearing to be closed to the public. In order to be, the hearing must pass a four-part test established by the U.S. Supreme Court.
The party seeking to close the case must show an overriding interest to do so, the closure can’t be broader than necessary, the court must consider reasonable alternatives and it must show findings adequate to support the closure.
By ruling to keep the hearing open, but let evidence be submitted privately, Stewart said in the court order she was making the closure as narrow as possible and considering alternatives.
“Without knowing what evidence it is the State intends to offer, the court is not inclined to blindly require public disclosure of the allegations in the face of the parties’ agreement,” Stewart said in her order.
Some of Stewart’s reasons for believing the parties didn’t prove a need of closure include the trial being months away and any publicity being lessened by the time jurors are sworn, as well as the possibility that the State might include Messel’s convictions that have already been covered by the media.
According to the order, the State must submit their list of acts by Jan. 25. The defendant will then have a chance to argue the exclusion of any acts from the private review by the court.
From there, the court will decide if the closed evidence will remain closed until trial or become public immediately. All evidence reviewed in private will be unsealed once the jury is sworn, according to the order.
“Before a person’s liberty can be taken by conviction of a crime, our system of justice demands proof beyond a reasonable doubt that he or she committed the particular offense charged, not innuendo that the person may have acted in conformance with some particular character trait,” Stewart said in the order.
Suzanne Grossman
