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updated 1/8/2004 4:51:42 PM ET 2004-01-08T21:51:42

Here's a new trend: Defense attorneys are trying to close proceedings that are supposed to be open, by making disingenuous arguments about protecting their client's right to a fair trial. 

These same lawyers complain that the reporting about their clients is inaccurate. However, when we have an opportunity to hear the real evidence argued in court --  they want to make sure we don't hear it.  It sounds like a case of the truth hurts. 

The latest argument comes from the homeless couple accused of kidnapping Elizabeth Smart.  They want to close the hearing to determine whether they're mentally fit to stand trial.  Their lawyer's arguing that allowing the public in would “eradicate their right to a fair trial.” 

Scott Peterson‘s attorney, Mark Geragos, unsuccessfully argued to keep the public out of that preliminary hearing, and Kobe Bryant's lawyers don't want the public present when they argue over an audio-taped interview of Bryant made shortly before his arrest. 

I understand the alleged Smart kidnappers don't want the public to hear the evidence about their competency.  I understand it doesn't help Scott Peterson or Kobe Bryant for the public to see or hear evidence that might incriminate them.  And it's true that certain evidence might be excluded from the trial based on important legal technicalities.  This does not mean that the tape or the statement or the evidence isn't true, it just means they dont want potential jury members to hear it.  But that's what jury selection is for, to determine who has developed an opinion about the case. 

What, Kobe Bryant can get a fair trial now?  But then, if the tape of his conversation with police is made public, suddenly it will be impossible to find fair and impartial jurors? Come on. 

Unfortunately for them, the law is clear.  These hearings are presumed to be open, and you need more than just “it‘s not good for my client.”

Supreme Court Justice William Brennan suggested, for example, “Reporting the details of the confession of one accused may reveal that it may implicate others as well, and the public may rightly demand to know what actions are being taken by law enforcement.”

And the former Chief Justice, Warren Burger, wrote, “Pretrial publicity even pervasive, adverse publicity does not inevitably lead to an unfair trial.”

So next time you hear a defense attorney say "I want this hearing closed," ask yourself, what is he or she so afraid of? 

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