An attorney for the Daily Press and The Virginian-Pilot told a three-justice panel of the Virginia Supreme Court on Tuesday that a trial judge got it wrong when she barred the media and public from a bond hearing for a Newport News police officer charged with murder.

Brett Spain, the lawyer for both newspapers, contended that Circuit Court Judge Margaret Poles Spencer didn’t have justification to close the April hearing for Sgt. Albin Trevor Pearson, who is accused of killing Henry Kistler “Hank” Berry III in late 2019.

“As the U.S. Supreme Court and (the Virginia Supreme Court) have said, the press acts as a ‘surrogate for the public,’ which cannot as a practical matter attend criminal trials with any sort of regularity,” Spain said.

“Much of what the public is able to learn about the court system comes from reporting made possible by public access” by the press, he said, speaking remotely to the panel that was meeting virtually. And if the media is barred from a hearing, he said, “the community as a whole suffers.”

Because of the First Amendment and other provisions of law, he said, closing court hearings is a drastic action that can only be done for very limited reasons.
“Courts have demonstrated over and over again that impartial juries can be seated in cases that received much more publicity than this case,” Spain said. “The most obvious recent example was the Derek Chauvin case, being tried earlier this year for the murder of George Floyd. That case was not only open, it was televised.”

Spain was allotted 10 minutes on Tuesday’s docket to urge the panel to “grant the appeal” brought by the newspapers and send it to the seven-member Virginia Supreme Court for a full hearing.
Forty-six lawyers from across the state made similar 10-minute pitches — to three separate panels of justices — asking that their cases be among the much smaller selected for a full appeal.

Chief Justice Donald W. Lemons, Justice Cleo W. Powell and Justice Teresa M. Chafin will vote on whether the newspapers’ case will be among them.

In a terse decision issued Thursday, the Supreme Court of Virginia ruled it would not take up an appeal of a lower court’s decision to uphold the state’s uranium mining moratorium.

“The Court is of the opinion there is no reversible error in the judgment complained of,” SCOVA ruled. “Accordingly, the Court refuses the petition for appeal.”

The decision upholds a July 2020 Wise County Circuit Court ruling and again leaves intact Virginia’s 39-year ban on uranium mining, which the U.S. Supreme Court affirmed the state had a right to impose in 2019.

“Congress conspicuously chose to leave untouched the states’ historic authority over the regulation of mining activities on private lands within their borders,” Justice Neil Gorsuch wrote for the Supreme Court in that case, Virginia Uranium, Inc. et al. v. Warren et al.

Virginia Uranium has been seeking for years to mine a site in Pittsylvania County, which is home to the largest known uranium deposit in the U.S. However, shortly after the valuable material used to power nuclear reactors was discovered in the state, Virginia imposed a ban on its extraction due to environmental and public health concerns.

A 2013 effort to eliminate the ban through legislation was unsuccessful.