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voked in late proceedings, Luke said. “The cat’s in the bag or the cat’s out of the bag. There’s no half-way.”
“All right, let’s get into ethics. . . Ethics versus the public’s right to know,” Horne responded.
If unethical conduct has occurred and that is the grounds for the closure, then the defense must show that public testimony regarding that unethical conduct would prejudice the defendant’s right to a fair trial, Luke maintained.
There’s privilege attached to testimony before a bar commission (regarding unethical conduct), Home said.
“But this doesn’t involve bar proceedings,” maintained Luke.
“What if it doesn’t involve this case?” asked Home.
“Then this court shouldn’t hear it,” Luke said. And if the reason for closing the pre-trial hearings is so collateral to the case that it doesn’t relate to Diane Kidwell’s guilt or innocense, then the record should be opened, he said.
Luke pointed out that Virginia’s Supreme Court rarely sets down rules, specifying that certain things must be done in certain instances. That the justices did so in Richmond Newspapers v. Commonwealth in evidence that they feel strongly about the procedures for closing hearings, he said.
Public Confidence
“Finally, we have the First Amendment,” Luke
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