In 2 Machete killings, Judge Says Files Open

He Rejects Bid To Seal Them To Avoid Pretrial Publicity

Gregory Aaron Kinsey is seen in an undated photo provided by the Fort Smith, Ark., Police Department. Kinsey, 20, is a suspect in a machete attack that killed two men Wednesday, June 26, 2013 at a duplex in Fort Smith, Ark. Kinsay was arrested Wednesday at his mother's home, and is being held on two county of capitol murder. (AP Photo/Fort Smith, Ark., Police Department)
Gregory Aaron Kinsey is seen in an undated photo provided by the Fort Smith, Ark., Police Department. Kinsey, 20, is a suspect in a machete attack that killed two men Wednesday, June 26, 2013 at a duplex in Fort Smith, Ark. Kinsay was arrested Wednesday at his mother's home, and is being held on two county of capitol murder. (AP Photo/Fort Smith, Ark., Police Department)

FORT SMITH - A Sebastian County Circuit Court judge Tuesday denied a request to seal the investigative file to prevent pretrial publicity in the case of the man accused in the machete slayings of two Fort Smith men last month.

Judge Stephen Tabor said he could recall several murder cases over the past three decades that have received intense media coverage and still were decided by fair and impartial juries. He also said he could not recall any case during that time where requests were made to seal the files.

Attorneys for Gregory Aaron Kinsey, who is charged with two counts of capital murder, filed a motion July 3 asking Tabor to seal the file until after Kinsey’s trial and to bar attorneys and law enforcement from commenting on the case to the media.

Kinsey, 20, is charged in the deaths of Nathan Young, 32,and Brandon Prince, 39, whom police say were hacked to death with a machete by Kinsey. According to police reports, he attacked the men who, thinking he looked suspicious walking down an alley, confronted him on the night of June 26 in the 1600 block of North D Street.

Kinsey was present for Tuesday’s hearing. Dressed in the county jail’s bright orange uniform and shackled hand and foot, he sat silent throughout the hearing. After the 20-minute hearing, he calmly rose at the prompting of the bailiffs and was escorted from the courtroom.

After a hearing last week, Tabor granted part of the motion and, in an order that continues, barred comments to the media. He reserved judgment on the request to seal the record until he had a chance to review the file. He scheduled Tuesday’s hearing to hear more argument and to announce his decision.

Tabor ordered that the investigative file remain open except for crime-scene photographs of the bodies of the victims, photos of the inside of Kinsey’s apartment and two videos from Kinsey’s cell phone.

Tabor said the decision was difficult for him because he was aware of the competing rights of a defendant for a fair trial and the public’s right to information about its government.

One factor that governed his decision, he said, was the ability in Sebastian County to seat impartial juries despite intense media coverage.

He pointed to the James Aaron Miller case, in which the Fort Smith man was charged with three counts of capital murder in the 2006 strangulation of his 28-yearold girlfriend, Bridgette Barr, and her two children, daughter Sydney, 5, and son Garrett, 2.

Miller was convicted on all three murder counts in 2008 and sentenced to death. The death sentence was overturned, and he was sentenced to life in prison in 2011.

Tabor said the case had a tremendous amount of media coverage in which most of the pertinent facts were released before the trial.

He attributed the impartiality of the juries in that and other notorious cases to the fading of memories between the time of the occurrence of the crime and the trial and to the way many people don’t follow the local media.

Other factors in his decision, he said, were that so much of the investigative file’s content already had been released and the proven record of the local media to cover such stories responsibly and without sensationalizing.

In their motion to prohibit pretrial publicity, Kinsey’s attorneys, who are with the Arkansas Public Defenders Commission, Teri Chambers and Katherine Streett, argued that statements by law enforcement officers in the case and media news stories containing graphic details were hurting Kinsey’s right to a fair trial by an impartial jury.

Streett argued during Tuesday’s hearing that Tabor’s main concern should be a fair trial for Kinsey and that sealing the investigative file until after the trial would not harm the public’s right to know.

She said that after reviewing the file herself, she found several things that would be inadmissible at trial. Yet they have been released and publicized.

Pressed by Tabor for specifics, Streett said she objected to Kinsey’s videotaped interview by police, the photos of the inside of his apartment and of the crime scene, and statements by police investigators about Kinsey’s guilt.

She said she also objected to the arrest report, probable-cause affidavit and the incident report.

She said there would be very little in the file that the defense would not object to.

Prosecuting Attorney Dan Shue said that, according to the Arkansas Freedom of Information Act, once an investigation is completed and no longer ongoing, the act states that the files must be open to the public.

Attorneys for the Arkansas Democrat-Gazette, the Southwest Times Record of Fort Smith and KHBS/ KHOG television sent letters to Tabor late Monday asking him to reject the motion to seal the files. They argued that prohibiting access to the files would constitute prior restraint, the restricting of publication of information before it is published.

They also argued that intense pretrial publicity would not automatically lead to an unfair trial. The judge also had alternatives to sealing the record, such as changing the trial venue, close questioning of prospective jurors and jury sequestration.

Streett argued that the media attorneys’ arguments on prior restraint were misleading because the situation before Tabor was not a case of prior restraint.

Tabor said he read the media attorneys’ letters Monday night but that he had already made his decision on the motion on Sunday.

Northwest Arkansas, Pages 9 on 07/24/2013

Upcoming Events