The public will be able to attend and newsmen will be able to report on a change of venue hearing for the trial of Kenneth H. Botham Jr., charged with four murders last Aug. 23.
Dist. Judge William Ela made the ruling Thursday afternoon, during a district court hearing from which Botham’s lawyers had also requested that the public and press be barred.
During an earlier in-chambers discussion with both prosecution and defense lawyers, Judge Ela refused a request by Botham’s lawyers to hold closed-door arguments on whether the venue change hearing should be open.
At the same hearing Thursday, Judge Ela postponed the hearing on change of venue from this afternoon to March 18, beginning at 11 a.m.
The change of venue – or change of the trial setting to another district court in another county – is sought by Dep. State Defender Lee Foreman of Denver and Mesa County Public Defender Robert Emerson, Botham’s lawyers.
It is based on their fears that pre-trial publicity may make it impossible to obtain a jury to try Botham.
The hearing on the request to close the change of venue arguments to the public and press was set by Emerson and Judge Ela last Tuesday. However, Emerson declined to tell newsmen up to the time of the hearing why he had asked the judge to set aside time on his calendar. His motion on the request was given directly to the judge Thursday, rather than being docketed with the county clerk, which is the usual procedure.
Foreman, in arguing in the court room to close the change of venue hearing, said that several people whom the public defender’s office wants to testify have been reluctant to do so in an open hearing. He cited witnesses who said they feel Botham cannot get a fair and impartial trial in Mesa County but claimed they would be “subject to the enmity of the community and economic hardship” if they so testify.
Foreman said that the court has statutory authority to determine whether hearings should be closed or open and to ban reporting of a certain hearing if it is deemed not to be in the interests of the public to know.
“Do you feel there is any place where we will be able to draw the line if we close the change of venue (hearing)? Aren’t we going to be faced with the same thing down the line?” asked Judge Ela.
“It’s not our intent to move for a closure of each and every hearing…” Foreman replied, noting the request was made on the venue hearing because of its particular nature.
Dist. Atty. Terrance Farina told Judge Ela that he could use the subpoena power of the court to bring in reluctant witnesses.
“Often, the people ‘the prosecution’ have reluctant witnesses. A lot of people just don’t want to get involved,” Farina said. He also noted that change of venue is an issue which can be raised again at any time, if there is a problem with news coverage.
Judge Ela, in denying the motion to close the March 18 hearing, said that the district attorney’s suggestion on the subpoena power is a “proper answer.”
“If the court starts to protect people who are unwilling to come forward, the whole system will break down,” Judge Ela observed.
He also noted that he would be glad to issue an order to keep law enforcement officials, including lawyers for both sides, from leaking information which might be prejudicial to the news media. However, he noted that he considers law enforcement officials are [to be] “policing themselves in excellent shape.”
Judge Ela said he would meet with representatives of the media this afternoon, to discuss the bar-press guidelines on pretrial publicity.
Motions for discovery and for a transcript of the preliminary hearing in county court were also to be argued this afternoon. Both are routine motions and were expected to be routinely granted.
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