Defense attorney Walter Madison explains why he withdrew his motion to have the rape trial of his client closed to the public, after a hearing on Friday, Jan. 25, 2013, at Jefferson County Juvenile Court in Steubenville, Ohio. Richmond said moving the trial would satisfy the concerns he has about a fair trial for his client, one of two high school football players charged with raping a 16-year-old girl last summer. (AP Photo/Andrew Welsh-Huggins)
Friday, January 25, 2013 7:34 pm
Ohio judge weighs whether to keep rape trial open
By ANDREW WELSH-HUGGINSAP Legal Affairs Writer
Defense attorney Walter Madison previously raised concerns that an open trial could lead to potential witnesses on his client's behalf being intimidated following intense publicity and social media commentary about the case. Madison said after the hearing that he believes the related motion to move the trial out of Jefferson County to reduce the possibility of witness intimidation or harassment would address his concerns.
"My concern, and that being that witnesses are comfortable and willing to participate in this process," he said.
An attorney for the girl said he'd be willing to file a similar motion for closing the trial, and the Ohio Attorney General's Office reiterated its support for the closure. But no formal motion was presented.
In arguing to move the trial, Madison said two potential witnesses on behalf of his client, Ma'Lik Richmond, had recently received threats.
Despite Madison's last-minute change, attorneys for media outlets including The Associated Press presented arguments supporting an open trial to ensure public confidence in the proceedings.
Judge Thomas Lipps said he'd consider their statements. Lipps, who previously rejected a request to try the two players separately, plans to rule next week on motions to move the trial and delay it.
The state opposes all of those motions.
Madison also wants Lipps to order that the girl be referred to as the accuser, not the victim, because he said "victim" implies that something happened to her that's been proven.
Lipps, a special judge brought in from Hamilton County to oversee the trial, opened with a philosophical statement of the issues at stake.
"This case is about our children, what they do when they're not under their parents' watchful eye as they venture out into their teenage years, how they act when they're with their friends, and how they deal with parties and drinking," Lipps said.
"How they react to the pressures of their friends, their relationships, their perceptions of themselves and others, their possible engagement in sexual activities and how emails and texting and social ... media these days affects the way our children communicate and how their words or actions are captured or recorded."
The athletes are accused of attacking the girl twice after an alcohol-fueled party in mid-August in Steubenville in far eastern Ohio. Three other students who witnessed the attack but weren't charged are expected to testify at next month's trial. The girl attends a high school across the river in West Virginia.
Two of the witnesses captured video and photo images of the attacks but deleted them shortly afterward.
The girl and her parents want the trial closed to maintain the girl's anonymity and keep evidence that a judge might rule inadmissible from becoming public, their attorney argued in a court filing Tuesday. That could include "harmful" and "legally non-relevant" evidence, attorney Robert Fitzsimmons has said.
The AP generally doesn't identify people who say they are the victims of sexual assault.
An attorney for the second defendant, Trent Mays, argued the case should be moved to a county with a bigger courthouse where crowds of protesters trying to intimidate witnesses favorable to the accused could be better controlled.
"My big concern is that witnesses aren't going to come in walking past hundreds of people wearing masks," said Columbus defense attorney Adam Nemann.
Brian Deckert, a special prosecutor from the Ohio Attorney General's office, said witnesses could be compelled to testify by subpoena and would have to testify truthfully because of perjury laws.
Attorney General Mike DeWine, whose office is prosecuting the case, says it will be difficult enough for the girl to testify, let alone in a public hearing open to the media.
News organizations arguing to keep the hearing open say the case is already subject to speculation that it won't be fully investigated and prosecuted because it involves the city's popular football team. Keeping it open eliminates that speculation, according to arguments by the AP, ABC, CNN, CBS News, The New York Times and WEWS-TV.
Andrew Welsh-Huggins can be reached on Twitter at https://twitter.com/awhcolumbus.