Court erred “procedurally” in closing Morris hearing

Published 11:43 am Wednesday, May 17, 2017

By Ryan Kushner

Staff writer

Minutes prior to a preliminary hearing for multiple child abuse charges against State Del. Rick Morris in December, Juvenile and Domestic Relations Court Judge Robert S. Brewbaker Jr. issued an order barring journalists, but not the members of the public, from the courtroom.

On Monday, following an appeal from newspapers, retired Judge Louis R. Lerner ruled that the order was procedurally incorrect, and that the transcripts from the hearing will be made available by the court reporter for purchase.

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Lerner, specially appointed by the Virginia Supreme Court to hear the appeal, additionally ruled that distinguishing media from the public was erroneous, and that the two are “very well one in the same.”

A judge thus cannot prohibit one but not the other from a courtroom, according to Lerner at the media hearing Monday.

“It doesn’t work that way,” said Lerner. {mprestriction ids=”1,2,3,4,5,6″}

The Daily Press, Virginian-Pilot and The Smithfield Times filed the appeal of the order shortly after Morris’ Dec. 15 hearing, during which six of seven abuse charges were dropped against the Republican delegate, who represents the 64th District. The 64th District encompasses parts of Isle of Wight, Surry, Southampton, Sussex and Prince George counties and the cities of Suffolk and Franklin.

In his order, Brewbaker stated that media were prohibited because the hearing involved testimony from a child, but that he was not barring members of the public.

Morris is accused of beating his stepson, and was indicted by a Suffolk grand jury in January on two felonies and two misdemeanors for child cruelty and domestic abuse. Morris announced in early March that he would not seek reelection.

Brewbaker retired from the court in January.

At the media hearing Monday, May 15, attorney Johan Conrod, representing the newspapers, argued that the transcripts from the hearing be made available and that Brewbaker’s order be ruled an error, both procedurally and substantively.

Procedurally, because the order was not written with a day prior to the hearing (a requirement in Virginia), but just moments before; and substantively because the hearing concerned an elected official, who also sits on the Courts of Justice committee, which appoints judges in the state.

“Every trial is a matter of public concern,” said Conrod. “But this trial was a particular matter of public concern.”

Following the Dec. 15 preliminary hearing, Morris issued a press release of his own, detailing certain happenings within the seven-hour hearing that media had no access to.

“There was a lot of testimony that nobody had any insight into except him,” said Conrod to the court. “The potential for abuse there … I think, is very significant.”

In his ruling, Lerner did not find Brewbaker substantively in error for the issuance of the order, stating that he believes the media, just like Morris, will “cherry-pick” the parts of the hearing’s transcript that suit them best.

The court reporter present at the preliminary hearing was hired by Morris, and an order for the court reporter to make the transcripts available for purchase would be improper, according to attorney Nicole Belote, legal representative for Morris at the hearing.

The commonwealth had the opportunity to request a court reporter, but chose not to, Belote said.

Conrod cited a rule wherein transcripts to any public hearing are eligible to be requested by any interested person, and transcripts from closed hearings can be made available by court order.

Commonwealth’s Attorney Timothy Perry, who is serving as prosecutor for Morris’ criminal case, said the commonwealth had no objection to the releasing of the transcripts.

Following the arguments at the media hearing, Lerner took a moment to voice personal issue with Conrod, stating that he had read a quote by Conrod in a newspaper that he claimed made it seem as if the judge was “shirking” his duties.

Conrod has said that he has issued repeated requests for a court date for the media hearing, aiming to have it before Morris’ criminal trial (which was scheduled for May 18, but was postponed last week until Aug. 23).

Learning that Lerner had no available dates to hear the media case before the Morris trial from Criminal Court Administrator Ed Davis, Conrod filed a motion for a new judge to hear the matter and for a date to be set before trial.

Lerner said that since he was designated to be judge for the case on Jan. 4, he did not receive any inquiry about a court date until April 11, to which he said he replied that he did not have any dates before the trial, but would work on his calendar.

“This is why most people today don’t like the media or lawyers,” said Lerner, noting that he himself was also a lawyer. “It’s because we play with words.”

Lerner said that if a correction to the Conrod quote was ever issued, it would likely be “buried” in the classified section, “next to an ad for free kittens.”

A pre-trial is scheduled for Aug. 16 at 9 a.m. in Suffolk. Morris’ trial is set for Aug. 23-24 in Suffolk. Judge John Wetsel will preside.  {/mprestriction}