IN THE CIRCUIT COURT OF DEKALB COUNTY, ALABAMA STATE OF ALABAMA, ) ) ) VS. ) CASE NO. CC ) ) LOWELL RAY BARRON, ) ) ) DEFENDANT.

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1 IN THE CIRCUIT COURT OF DEKALB COUNTY, ALABAMA ELECTRONICALLY FILED 5/15/2013 3:08 PM 28-CC CIRCUIT COURT OF DeKALB COUNTY, ALABAMA PAM SIMPSON, CLERK STATE OF ALABAMA, VS. CASE NO. CC LOWELL RAY BARRON, DEFENDANT. STATE S RESPONSE IN OPPOSITION TO DEFENDANT S MOTION FOR ORDER REQUIRING STATE FILINGS UNDER SEAL The State of Alabama, by and through Attorney General Luther Strange, submits its Response in Opposition to the Defendant s Motion for Order Requiring State Filings Under Seal. Without citing any authority, Defendant Lowell Ray Barron ( Barron seeks to bar the State from filing any document that contains or includes any allegation about Defendants or any evidence pertaining to Defendants in any way, unless such filing is under seal. (Motion, p. 1. Essentially, Barron seeks special treatment from this Court and has provided no factual or legal basis why the public should be excluded from these proceedings. 1 For these reasons, and those stated below, the Motion is due to be denied. 1 As the Court knows, Barron is charged in a joint indictment with Rhonda Jill Johnson, CC Unless the Court orders sua sponte that all filings by the State in that case are also to be filed under seal, some of the State s filings would include the information identified in Barron s Motion. Defendant Johnson has not sought to have her case tried in secret as Barron requests. 1

2 INTRODUCTION This is a Fair Campaign Practices Act and Ethics law case where the defendants are accused of converting campaign funds and property to their personal use. A Grand Jury comprised of DeKalb County citizens voted to indict Barron and defendant Rhonda Jill Johnson ( Johnson and returned a six-count true bill indictment on April 19, The only time any Grand Jury was presented with or asked to vote on an indictment of Barron and Johnson was April 19, Mere hours after his arrest, Barron held a press conference on the steps of the DeKalb County Courthouse where he told reporters that there s nobody I trust more than the folks of DeKalb County to sit on a jury to judge my innocence. The defense said they absolutely dispute the charges and asserted that the indictment was political, a witch hunt and brought by outsiders. Barron further commented that we don t like the south Alabama crowd coming up here and telling us what to do. Reports of Barron s press conference were highly publicized in DeKalb County and in media throughout the State. 2 2 See generally, The Daily Sentinel, Former Sen. Lowell Barron's Press Conference - DeKalb County Courthouse (Video,, Fort Payne Times-Journal, Espy to Strange: Get ready, big boy. Lace em up!, Tuesday, April 23, 2013 (quoting the defense as referring to the indictment as Politics and a witch hunt ; Chattanooga Times Free Press, Alabama Ex-Sen. Lowell Barron denies pocketing donations, Wednesday, April 24, 2013 (quoting Barron as stating that he was the victim of a vicious witch hunt by Luther Strange from Montgomery ; AL.com, Emotional Lowell Barron wipes tears from eyes, describes indictment as 'witch hunt' (video, April 23, 2013, 2

3 Barron now seeks to conduct these criminal proceedings in secret and out of the public s view. This highly unusual request for special treatment that is, treatment that most likely no other defendant on this Court s docket has received is not even accompanied by any rule of law that requires (or even allows the State to file its documents and evidence under seal. Notwithstanding this lack of legal support, Barron fails to offer a factual basis to this Court to show that it is necessary to thwart the public s First Amendment right of access to the trial of a criminal case. Ex parte The Birmingham News Company, Inc., 624 So. 2d 1117, 1124 (Ala. Crim. App Moreover, Barron s extrajudicial statements demonstrate his desire to try this case in the press not in this Court. And Barron only asks to keep the State s filings secret (not his own. It would be grossly unfair to allow Barron to silence the State from making its case in an open court of law, while Barron continues to file documents publicly and make comments to the media. As such, Barron s request to bar the State from openly filing documents and evidence with this Court should be denied. (quoting the defense commenting that This case is brought by outsiders.. 3

4 ARGUMENT I. Barron s Request is Without Legal Support And is Contrary to Alabama Law Barron s Motion fails to cite any statute, rule or case in support of his unusual request to prohibit the State from openly filing documents and evidence with the Court. In failing to cite any authority, Barron overlooks established Alabama law requiring that [a]ll proceedings shall be open to the public, unless otherwise provided by law. Rule 9.3 (b, Ala. R. Crim. P. To be sure, Alabama law only provides for closed proceedings when the party seeking to close the hearing advances an overriding interest that is likely to be prejudiced. Ex parte The Birmingham News Company, Inc., 624 So.2d 1117, 1125 (Ala. Cr. App (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986 (other internal citations omitted. This standard is equally applicable to court filings. Ex parte The Birmingham News Company, Inc., 624 So.2d at 1124 (citing Ex parte Consolidated Pub. Co., 601 So. 2d 423, 433 (Ala. 1992; McGowan v. State, 990 So. 2d 931, 965 (Ala. Cr. App The Alabama Court of Criminal Appeals has further explained this standard by noting that courts should be extremely reluctant to grant a request like Barron s: A court should close proceedings only after the due process safeguards set out in this opinion have been satisfied. As the United States Supreme Court has stated: The value of openness lies in the 4

5 fact that people not actually attending [criminal proceedings] can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of [criminal proceedings] and the appearance of fairness so essential to public confidence in the system. Id. at 1135 (emphasis in original; internal citations omitted. These considerations are heightened here because the charges arise out Barron s conduct as an Alabama State Senator and candidate for public office. See id. at 1135 ( We believe this expression has even greater application in the criminal prosecution of a public official. (emphasis added. In his Motion, Barron makes no mention of the rules requiring open proceedings. His request to close these proceedings is therefore, on its face, contrary to Alabama law requiring open proceedings. II. Barron Has Not Shown Any Factual Basis to Support His Request Even if Barron had cited the appropriate legal standard, he has not put forth any factual basis to show that excluding the public is appropriate under the circumstances. Here, Barron has the burden of establishing that he has an overriding interest that is likely to be prejudiced if closure is not ordered. Ex parte The Birmingham News Company, Inc., 624 So. 2d at 1134 (internal quotations and citations omitted. To satisfy his burden in this case, Barron must present evidence that will support specific findings that there is a substantial probability 5

6 that his right to a fair trial will be prejudiced by publicity that closure would prevent and that reasonable alternatives to closure cannot adequately protect his fair trial rights. McGowan, 990 So. 2d at 965 (internal quotations and citations omitted. Barron has not asserted any factual basis whatsoever in support of his Motion. Nor could he. Barron s own post-arrest conduct demonstrates that an open and public proceeding would not prejudice his right to a fair trial. That is, since Barron chose to have a public press conference the moment he was indicted, he can hardly now assert that publicity constitutes an overriding interest which would justify trying the case in secret. Cf. Phillips v. State, 443 So.2d 1328, 1331 (Ala. Crim. App (Noting that it would be absurd to allow a defendant to complain about activity which he himself set into motion. Having failed to recognize that the burden is his, Barron attempts to shift the burden to the State by making the unsupported assertion that conducting secret proceedings would not cause any cognizable harm to the State in any respect. (Motion, p. 1. Barron s argument misconstrues Alabama law. The State is simply not required to demonstrate any harm in opposing the defense s efforts to shield these proceedings from public view. Ex parte The Birmingham News Company, Inc., 624 So. 2d at

7 Barron fails to recognize that the concept of a fair trial applies both to the prosecution and the defense. United States v. McGregor, 838 F. Supp 2d 1256, 1260 (M.D (citing United States v. Tijerina, 412 F.2d 661, 666 (10th Cir In this case, closing these proceedings would prejudice the State s right to a fair trial and the public s interest in the confidence that standards of fairness are being observed and that established procedures are being followed and that deviations will become known. Ex parte The Birmingham News Company, Inc., 624 So. 2d at 1135 (internal quotations omitted. Accordingly, Barron has failed to assert a factual basis establishing an overriding interest that he is likely to be prejudiced by open and public judicial proceedings. As such, the Motion is due to be denied. III. The Defense Seeks an Unfair Advantage by Barring the State from Arguing its Case in an Open and Fair Proceeding In addition to lacking any legal or factual support, his request is also improper because he seeks an unfair advantage by demanding that only the State s filings be sealed not his own. It is patently unfair to require the State file its documents and evidence out of the public s view, while Barron holds press conferences and publicly files documents with the Court. This fact underscores the nature of Barron s demand for special treatment, which would only serve to undermine the public s interest in open criminal proceedings and to prejudice the State s right to a fair trial. 7

8 Closing the State s documentary submissions to this Court would further allow the defense to unfairly characterize the State s conduct. Since Barron and has already publicly accused the State of conducting political witchhunt[s], silencing the State from responding in kind through court filings would provide the defense with an uneven playing field in these proceedings. Accordingly, the Motion should be denied and these proceedings should be open to the public to ensure the public s interest in the confidence that standards of fairness are being observed. Id. at CONCLUSION In accordance with the foregoing, the State respectfully requests this Court deny the Defendant s Motion for Order Requiring State Filings under Seal. Respectfully submitted this 15th day of May, LUTHER STRANGE ATTORNEY GENERAL /s/ Peter J. Smyczek Peter J. Smyczek (SMY009 Assistant Attorney General psmyczek@ago.state.al.us 8

9 OF COUNSEL: Miles M. Hart Chief, Special Prosecutions Bill Lisenby, Jr. Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue P.O. Box Montgomery, AL ( ( FAX 9

10 CERTIFICATE OF SERVICE I hereby certify that I have, this the 15 th day of May 2013, electronically filed the foregoing using the AlaFile system which will send notification of such filing to the following registered persons, and that those persons not registered with the AlaFile system were served a copy of the foregoing by U. S. mail: Attorneys for Defendant Lowell Ray Barron: Joe Espy, III Benjamin J. Espy William M. Espy MELTON, ESPY & WILLIAMS, P.C. P.O. Drawer 5130 Montgomery, AL Telephone: Facsimile: jespy@mewlegal.com bespy@mewlegal.com wespy@mewlegal.com Winfred Rocky Watson Watson & Neeley, LLC 305 Grand Avenue, SW Fort Payne, AL Telephone: /s/ Peter J. Smyczek OF COUNSEL 10