In an effort to protect the identity and privacy of juvenile witnesses and victims in the criminal case against Tom Lakin, Assistant United States Attorney Stephen Clark wants the courtroom to be closed to the public when they testify.
In a motion filed July 6, Clark argues that Title 42, United States Code, Section 10606(b)(1) provides that a victim of a crime has "[t]he right to be treated with fairness and with respect for the victim's dignity and privacy."
"When the victim is a juvenile, Title 18, United States Code, Section 3509 adds additional protections," Clark writes.
According to Clark, Section 3509(e) provides that "When a child testifies the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring the child to testify in open court would cause substantial psychological harm to the child or would result in the child's inability to effectively communicate. Such an order shall be narrowly tailored to serve the Government's specific compelling interest."
Clark argues that closing the courtroom while the juveniles testify will prevent disclosure of their identity in order to spare the juveniles and their families further trauma since the case involves the sexual exploitation of a juvenile.
Clark acknowledges that the press and the general public have a constitutional right of access to criminal trials, but argues that right is not absolute citing Globe Newspaper Co. v. Superior Court.
"The circumstances in which the press and general public may be barred from a criminal trial are limited; the justification for denying them access must be a weighty one," Clark writes.
According to Clark, the factors Gilbert must consider are the minor victim's age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.
Clark argues that the victim, who suffers from Tourette's Syndrome, was 15 years old at the time of the incident referenced in the indictment and is now 17 years old while other possible juvenile witnesses are 15-18 years old.
"Accordingly, to protect the privacy of, and prevent embarrassment or detriment to, the juvenile victims, the government respectfully requests that the courtroom be closed during their testimony," Clark writes. "The courtroom should be closed to the members of the press, as well as to all persons not having a direct interest in this case."
Clark argues that in the Globe Newspaper Co. case the United States Supreme Court found that the state statute at issue, which required mandatory closure of the courtroom to the press and public during the testimony of minor victims in criminal sex offense trials, violated the First Amendment, in a footnote the high court stated in individual cases, and under appropriate circumstances, the First Amendment does not necessarily stand as a bar to the exclusion from the courtroom of the press and general public during the testimony of minor sex-offense victims.
He argues that Lakin will not be prejudiced because he will be present in the courtroom to hear the evidence against him, as well as to confront the juvenile victim and witnesses.
In addition to the courtroom closure, Clark wants Gilbert to enter an order that prohibits anyone from taking photographs, drawings, or otherwise recording an image of the juveniles or their parents.
"Allowing the media to record images of the juveniles and their parents will result in additional trauma, since it will most likely result in the disclosure of their identities," Clark writes.
Clark also seeks a protective order that prevents the disclosure of the juveniles parents names in order to further protect the privacy of the juveniles by preventing the inference of their identity by the media or other persons inside and outside the courtroom.
"The government respectfully requests that the parents of the juvenile victim and witnesses be known only as the parents, mother, or father of John Doe, Witness 1, etc.," Clark writes.
No hearing has yet to be set.