A county prosecutor backed off his attempt to keep the public and the media out of a preliminary hearing Thursday in an unusual murder case in Pershing County.
The Nevada Press Association and other media organizations, including The Associated Press, had persuaded a Pershing County judge Wednesday to reverse an earlier order to hold the hearing in secret.
On Thursday, a justice of the peace held a hearing to consider reinstating the order for a closed hearing.
Deputy District Attorney Carl Anderson asked Justice of the Peace Carol Nelsen for permission to tell her privately why the hearing should be closed. Anderson said earlier that other lives could be in danger if the hearing was held in public.
But Nelsen refused the request and Anderson withdrew his request to close the hearing.
The preliminary hearing began later Thursday for Tim Dale, 49, who's charged with first-degree murder, and James Malone, 61, who is charged with accessory to murder. It was expected to resume Friday.
Dale also has been identified as a suspect in a federal investigation into the theft of thousands of pounds of dynamite in Winnemucca in 2001. While searching for the explosives in an abandoned mine, investigators found the remains of a person they think was killed two years ago.
The explosives were recovered by federal and local authorities last month in a mine shaft along the Pershing-Humboldt county line about 150 miles northeast of Reno.
Malone and Dale were charged Sept. 22, after being arrested based on information authorities received from an informant who led them to human remains. Authorities have not released the identity of the dead man, but KWNA Radio in Winnemucca has identified him as Dale's brother.
Lawyers for the media organizations petitioned to keep the proceedings open to the public.
Pershing County District Court Judge Richard Wagner ordered Nelsen on Wednesday to lift her earlier order to close the preliminary hearing.
"There is no compelling reason to close the preliminary hearing in this case," the lawyers said in a motion.
"The public and press have a First Amendment right to attend these proceedings. How else will we know if local law enforcement, officials, administrators, politicians and the like are following the laws?" the motion said.
Lawyers JoNell Thomas of Las Vegas and Steve Evenson of Lovelock filed the motion on behalf of the press association, the AP, the Lovelock Review-Miner and the Elko Daily Free Press.
The motion said that the hearing cannot be held in secret unless:
- the party seeking to close the courtroom advances an overriding interest that is likely to be prejudiced
- the closure is no broader than necessary to protect that overriding interest
- the trial court considers reasonable alternatives to closing the proceeding
- the trial court makes findings adequate to support the closure
"The state asserted that it is necessary to close the courtroom for the preliminary hearing because the jury pool may be contaminated and because the defendants may be adversely affected. There is no merit to this argument," the motion said.
"No findings have been made to justify the closure of the courtroom for this proceeding ... The public has a right to know about this case."
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