Lawyers question barring of media at courthouse

Kim Smith

Monday, Aug. 16, 1999 | 11:27 a.m.

Restricting access to Buford O. Furrow Jr.'s initial court appearance last week was a mistake and steps need to be taken to ensure First and Sixth Amendment rights are not violated in the future, legal pundits say.

Furrow made his first court appearance last Wednesday in Las Vegas' Foley Federal Building after giving himself up to Las Vegas FBI agents. He is the Washington resident charged with shooting a U.S. Postal Service worker to death in Los Angeles and opening fire inside a Jewish community center.

The hearing took place after the federal courthouse had been closed for the day. Court security officers, who work under the direction of the U.S. Marshals, barred the public and all but at least two reporters from the courthouse. Other reporters, including those representing the Los Angeles Times, the Sun, CBS, the Associated Press and other organizations, were forced to wait outside the building during the hearing.

Under the Fifth and Sixth Amendments of the U.S. Constitution, Americans cannot be deprived of "life, liberty or property without due process of law" and "in all criminal procedures the accused shall enjoy the right to a speedy and public trial."

Although it was "probably a mistake" to bar people from the courthouse, Las Vegas criminal defense attorney Tom Pitaro said that because Furrow was represented by an attorney and because a few reporters, representing the public, were in the courtroom, Furrow's rights were not violated.

"But, there is another constitutional issue here and that is the right of the press to be there. That right was more seriously impacted by this than what happened with the defendant," Pitaro said. "A thing like this raises the issue of how are we to maintain access when the courts begin to hold these hearings after normal business hours. The court administrators need to look at that."

Matthew Callister, a fellow Las Vegas attorney, called the courthouse closure "curious."

"The public's right to know is well established and clearly articulated in several Supreme Court decisions," Callister said.

Although judges can close certain hearings if they are worried that an open hearing may hurt their ability to find fair and impartial jury, that issue appears to be moot in this case, Callister said.

"Given the fact the trial appears likely to be convened in L.A., it's troubling the press's participation was limited at this pretrial hearing," Callister said.

U.S. Magistrate Lawrence Leavitt, who presided over the hearing, said there was no intent to restrict access to the hearing.

"The court security officers were just doing what they were supposed to do" by closing the courthouse down at 6 p.m. as usual, Leavitt said.

"Obviously, they have some serious security concerns because they can't just open up and have people running around the courthouse" after hours, Leavitt said.

Prior to the hearing, Leavitt said he was told that at least two reporters were allowed into the courthouse so security officers could check with him as to whether the hearing was open. Those same reporters then "snuck" into an elevator and attended the hearing, he said.

He was not aware other reporters were locked out of the courthouse until after the hearing, Leavitt said. He had assumed the full courtroom was filled with reporters and law enforcement officers.

"There was absolutely no intention to play any kind of favorites," Leavitt said. "As for the other reporters, I can't blame them. They wanted to be in, and they had a right to be in and you had a right to be in. ... The hearing was not closed. The question is, how should the situation have been handled."

Leavitt said he can not remember another time when a high-profile defendant like Furrow made an initial appearance after hours. He said he intends to meet with U.S. District Judges Howard McKibben and Philip Pro to establish a policy should another incident arise.

"The court believes in the First Amendment, and the press has a right to attend public hearings," Leavitt said. "Obviously the public had a great interest in this hearing. I apologize for the unpreparedness, and it won't happen again."

Leavitt and U.S. Marshal Rod Robinson said because of the complexity of the case and the fact state and federal charges were both possible, no one knew until the last minute that the hearing was going to be held.

"It was kind of a scrambling situation and whoever was here at the courthouse made a mistake letting some of the reporters in in the first place," Robinson said. "Some people can't be held to their honor and that's why rules are made. It was a bad situation for everybody."

While it isn't always possible for every reporter to have access to the courtroom, usually a fair alternative can be found, Robinson said.