Judge denies motion to keep documents secret in death of 15-year-old Nichole Cable

Superior Court Justice William Anderson is shown in court last week.
Brian Feulner | BDN
Superior Court Justice William Anderson is shown in court last week. Buy Photo
By Judy Harrison, BDN Staff
Posted May 29, 2013, at 7:49 p.m.

BANGOR, Maine — A Superior Court judge Wednesday denied a defense attorney’s motion to seal the affidavit and other information in the Kyle Dube murder case.

Dube, 20, of Orono was indicted Wednesday by the Penobscot County grand jury in the death of Nichole Cable, 15, of Glenburn on May 12.

Superior Court Justice William Anderson denied Bangor attorney Stephen Smith’s request that most documents in the case be kept secret until Dube’s trial began. A trial date has not been set in the case.

“Probable cause affidavits have traditionally been released to the public after an arrest is made, and public access to such information plays a significant positive role in the functioning of the judicial process because it add transparency to the criminal justice system and keeps the public informed,” Anderson wrote. “The court therefore concludes that the press has a right to access the information contained in a probable cause affidavit.”

The affidavit in the Dube case was made public immediately after Anderson issued his order.

Anderson granted Smith’s oral motion to seal the affidavit on May 22 — the day Dube made his first court appearance — but only until the grand jury had returned an indictment in the case.

Smith said Friday that he filed his written motion seeking to seal documents that usually would be public in response to a written motion filed Thursday by a southern Maine newspaper and The Associated Press. The news organizations asked that the affidavit be unsealed immediately.

Anderson also denied that motion Wednesday.

In his ruling, the judge explained why he sealed the document for a limited time period.

“This case presents a substantial risk of impartiality because it has garnered enormous publicity and has emotionally charged the local populous,” Anderson wrote. “The extensive public focus on this case creates a serious and legitimate risk that a grand juror could be prejudiced by the addition of more detailed information about the crime.

“This prejudice arises from the risk that a grand juror will pre-judge the matter before each individual juror has the benefit of the grand jury’s collective judgment,” he continued. “It also stems from the potential for the press to acquire additional information from individuals mentioned in the affidavit, which would not otherwise have been presented to the grand jury.”

Anderson held a 30-minute hearing Wednesday morning and then issued the ruling after the courthouse had closed for the day.

Dube’s trial date has not been set but the date most likely is more than a year away. There are 10 other defendants awaiting trial on murder or manslaughter charges in Penobscot County.

Smith argued in his written motion that the “defense remains concerned about pretrial publicity and the prejudice to the defendant concerning materials which might be filed in open court without the opportunity to review said materials for aspects prejudicial to the defendant.”

The attorney also said that Dube had received “numerous threatening communications” on his Facebook page, which has been taken down, that “cause the defendant concern not only for himself but his family and acquaintances — some of whom are potential witnesses in this case.”

During Wednesday’s hearing, Smith reiterated a concern expressed last week for Dube’s safety because the defendant’s life allegedly had been threatened over the Internet.

Assistant Attorney General Andrew Benson, who is prosecuting the case, has not taken a position on the motions.

It could not be determined Wednesday night whether Anderson’s decision would be appealed by Smith or the news organizations.

http://bangordailynews.com/2013/05/29/news/bangor/judge-denies-motion-to-keep-documents-secret-in-death-of-15-year-old-nichole-cable/ printed on July 23, 2014