VIRGINIA: JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT ) COMMONWEALTH ) ) v. } Criminal No. J5017844-01-00 ) Judge Cupp LEVIATHAN HENRY NORWOOD, ) Defendant ) re THE WASHINGTON POST'S MOTION FOR RELEASE OF TRANSCRIPT. Intervener, The Washington Post, moves the Court to order release of the transcript from the arraignment in the above-captioned case. As set forth in more detail below, the arraignment ‘was improperly closed to the public in contravention of the United States and Virginia Constitutions, the common law, and the Virginia Code. At this point, the only partial remedy for the improper closure is a release of the transcript of the proceedings. The Past respectfully requests that this Motion be decided without a hearing or scheduled for a hearing before the next court date in this matter. Memorandum in Support of Motion Factual Background This case involves serious criminal charges against a 17-year-old defendant. The Court has already determined that these charges would be felonies if committed by an adult, On February 24, 2020, The Washington Post filed a motion for the public to be admitted to the arraignment in the above captioned matter. Later that afternoon, The Post leamed from the Clerk’s Office that the Court had granted the Post’s motion. However, after the arraignmentproceedings began, the Court announced that the defense and prosecutor had filed a joint motion to close the hearing. After hearing argument from defense counsel and the Commonwealth, the Court closed the arraignment, and the public left the courtroom. In its written order, the Court stated the following reasons for its decision: (1) to protect the privacy of the juvenile defendant; (2) to protect potential jurors from exclusion due to news reports; and (3) to protect the privacy of a potential juvenile witness. Argument The Court Improperly Closed the Arraignment, As set forth in The Post's initial motion to open the arraignment, the First Amendment of the U.S. Constitution and the Virginia Constitution set forth a presumptive right of access to criminal proceedings, ‘The Virginia legislature has codified this right, stating, in unambiguous terms, that [P]roceedings in cases involving an adult charged with a crime and hearings held on a petition or warrant alleging that a juvenile fourteen years of age or older committed an offense which would be a felony if committed by an adult shall be open.! Va. Code § 16.1-302 (emphasis added). ‘The use of the term “shall” means that the Virginia legislature has already determined that the Court does not have the power to do what it did here. “Properly understood, a ‘shall’ command in a statute always means ‘shall,’ not ‘may.’ No litigant or court should willfully disregard such a legislative command.” Rickman v. Commonwealth, 294 Va. 531, $37 (2017). \ There are exceptions to this statute, but none are applicable here and the Court did not cite to or rely upon any of the exceptions.And although the First Amendment right of access is not absolute, it “may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise v. Superior Court of Calif., 464 U.S. 501, 510 (1984). There is no such overriding interest here. The Court stated the following reasons for its decision: (1) to protect the privacy of the juvenile defendant; (2) to protect potential jurors from exclusion due to news reports; and (3) to protect the privacy of a potential juvenile witness. None of these reasons overrides the presumption of access or the determination of the legislature that this type of proceeding should be open to the public. First, the Virginia Legislature has unambiguously determined that trials of juveniles charged with serious felonies and over 14 years of age “shall” be open to the public. Thus, the Legislature has already weighed the privacy interests of juveniles charged with felonies against the policy of openness and legislated in favor of openness. The Court did not have the discretion to make a different policy determination. Second, the general concern for potential contamination of the venire due to pre-trial contamination by publicity is purely conjecture and courts have routinely dealt with such concerns through measures such as instructions to jurors and voir dire. The voir dire process can screen out jury contamination and, in very extreme circumstances, cases can be transferred to other counties. See Riner v. Commonwealth, 40 Va. App. 440, 461-62 (Salem 2003) (collecting authority). ‘Third, an unspecified concern for the privacy interests of a minor witness is too speculative to serve as a basis for closing an entire arraignment (at which the witness likely wasnot even testifying). To the extent that there are legitimate concems regarding the privacy interests of a juvenile witness, there are more narrowly tailored means to protect those interests than closing the entire proceeding, I. The Remedy for the Illegal Closure. At this point, the only remedy for the illegal closure is the immediate release of the transcript from the closed hearing and an order that all future proceedings in this matter be open to the public and press. Conclusion For the foregoing reasons, The Washington Post respectfully requests that the Court order the release of the transcript of the arraignment and further order that future proceedings in this matter will be open. DATED: February 26, 2020 in H. Mills (79848) Samek | Werther | Mills LLC 2000 Duke Street, Suite 300 Alexandria, VA 22314 703.547.4693 Fax 703.547.4694 Counsel for The Washington Post Copies to: Scott Hook ‘Commonwealth’s Attorney 29 Ashby Street, 4th Floor Warrenton, Virginia 20186 Scott. hook @fauquiercounty. gov 540-422-8120 FAX: 540-422-8121Ryan Ruzic Public Defender’s Office 16 Homer Street Warrenton, VA 20186 540-347-6390 Fax 5403476391 muzic@vadefenders.ong