A Circuit Court judge on Monday barred the press and public from attending a bond hearing later this week for a Newport News police officer charged in a 2019 slaying.
Judge Margaret Poles Spencer granted a motion by prosecutors to close Friday’s hearing on whether to revoke bond for Sgt. Albin Trevor Pearson.
In so doing, she overruled an objection from the Daily Press and The Virginian-Pilot that the case law — based on the First Amendment and other provisions — mandates an open hearing.
Pearson is awaiting trial in October on second-degree murder and other charges in the Dec. 27, 2019, killing of Henry K. Berry III. He has been out on bond since shortly after his November arrest, but special prosecutors from Suffolk filed a sealed motion in early March asking Spencer to order him jailed pending trial.
Prosecutors have not filed any public documents explaining why they want the bond revoked.
In asking for the closed hearing, Senior Assistant Commonwealth’s Attorney Brandon Wrobleski said Monday that prosecutors were “concerned about Mr. Pearson’s access to a fair trial” and that they didn’t want the process “unnecessarily tainted by pretrial publicity.”
Wrobleski said that with the COVID-19 pandemic, seating jurors has proved difficult across Hampton Roads. With fewer jurors responding to summonses, he said, it could be difficult to find jurors who haven’t been influenced by media coverage on the case.
Brett Spain, an attorney representing the Daily Press and The Virginian-Pilot, said court hearings and documents are presumed open, and that overcoming that presumption “is by design” a very high burden.
Courts, he said, have long ruled that open hearings bring about trust in both the process and the outcome.
With the recent national conversation surrounding police officers’ actions, Spain said, a hearing into a police officer accused of killing someone in his own home should be open.
“This is an extremely important issue for the public,” Spain said. No matter what happens with the outcome of Pearson’s trial, he said, “what’s important is that the public gets to witness the process and understands how we got here.”
In order to close a hearing, judges must make “specific findings” — based on particular reasons — that an unfair trial could result from an open hearing, and that there are no alternatives to closing it.
Spain said Wrobleski’s assertions that it could be difficult to seat a jury because of pretrial publicity is far from specific enough. Instead, he said, “it’s an exact example of a general conclusory basis for closing the courtroom” that courts have ruled “are not sufficient” to warrant closure.
There are alternatives to closure, Spain said, such as questioning jurors before their selection, giving detailed juror instructions, or moving the case out of Newport News.
He pointed out that jurors were able to be seated in the Derek Chauvin and O.J. Simpson cases, despite the massive national coverage in both of those cases.
Pearson’s attorney, Timothy Clancy, said he was in favor of closing the bond hearing, but that he “didn’t have any legal authority” to support going against the presumption of open hearings.
He contended that Spencer should strike the prosecution’s prior bond revocation motion and that a separate hearing be held as to what should happen with the sealed documents they reference. “Let’s do it the right way,” Clancy said.
After recessing for about 20 minutes to research the issue, Spencer — a Richmond judge sitting on the case after local judges recused themselves — ruled that the prosecution’s concern about pretrial publicity and jurors being tainted was “specific” enough. Moreover, Spencer also ruled there were no other alternatives than to bar the press and public from the bond hearing.
Spencer said she was “taking under advisement” whether to unseal the prosecution’s 91-page motion to revoke Pearson’s bond, including the police internal affairs records they reference.
The Daily Press and Virginian-Pilot contend that those records should be open records because they were attached to the motion to revoke Pearson’s bond that the newspapers say should not have been filed under seal.
Spencer asked attorneys for the prosecution, Pearson and the city of Newport News to weigh in by Friday on whether those records should be unsealed.
The Daily Press and Virginian-Pilot are considering their legal options.
Berry, 43, was shot in his Oyster Point home after four officers went there to arrest him on a misdemeanor count of abusing the city’s 911 system.
Police have said that Pearson — a 12-year department veteran — shot Berry during a struggle over a Taser inside Berry’s townhouse off Pilot House Drive.
Prosecutors contend that the officers illegally barged into Berry’s home without a warrant after Berry made a series of 911 calls looking into the whereabouts of his 9-year-old son. Once inside, prosecutors contend, Pearson grabbed Berry and pushed him into a wall. When Berry resisted and argued with the officers, they said, Officer Dwight A. Pitterson Tasered him at close range.
That led to a struggle, with electrified prongs swinging between Berry and the four officers. Pearson — who was struck in the knee by a Taser — was shocked by the prongs. Pearson then shot Berry once in the back and killed him.
He’s charged with second-degree murder, two gun charges, wounding in the commission of a felony, assault and battery, and entering a home against another’s property rights.
Pitterson is charged with malicious wounding, wounding in the commission of a felony, assault and battery and entering a home against another’s property rights.
Peter Dujardin, 757-247-4749, email@example.com