1/20/2022 4:54 PM FILED Received for Filing Oakland County Clerk STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff, v CR 2022-279506-FC HON. KWAME L. ROWE ETHAN ROBERT CRUMBLEY, Defendant _ / KAREN D. McDONALD (P59083) AMY M. HOPP (P48872) OAKLAND COUNTY PROSECUTING ATTORNEY — ATTORNEY FOR DEFENDANT 1200 NORTH TELEGRAPH ROAD P.O, BOX 941 PONTIAC, MI 48341 TROY, MI 48099-0941 PAULETTE MICHEL LOFTIN (71982) DEBORAH H. MCKELVY (P44157) ATTORNEY FOR DEFENDANT COURT-APPOINTED GAL 145 § LIVERNOIS RD., #183 1432 MARYLAND BLVD ROCHESTER, MI 48307-1837 BIRMINGHAM, MI 48009-1928 PEOPLE’S MEMORANDUM OF LAW REGARDING MEDIA/PUBLIC ACCESS NOW COMES Karen D, McDonald, Prosecuting Attorney in and for the County of Oakland, and for the People’s brief regarding media/public access states as follows: Procedural History At the January 19, 2022, Status Conference, the Parties discussed the potential privacy concerns that could arise at the February 22, 2022, hearing — in addition to the rights enumerated in the Crime Victims’ Rights Act. This Court invited the parties to brief the issue and provide the Court with a statement of the law concerning whether access to the February 22, 2022, hearing regarding the Juvenile Justice and Delinquency Prevention Act (JIDPA), 34 USC 11101 ef seg., should be limited in any way. The parties have been in communication regarding this issue and believe that media and public access to this hearing should nor be limited,Law & Analysis ‘The public and media have both a constitutional and statutory right to attend criminal proceedings. See Richmond Newspapers v Virginia, 448 US 555, 580; 100 S Ct 2814; 65 L Ed 2d 973 (1980) (holding that the publie’s “tight to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and ‘of the press could be eviscerated’ ”) ion marks and citation omitted); People v Vaughn, 491 Mich 642, 652; 821 NW2d 288 (quota (2012) (explaining that “a member of the public can invoke the right to a public trial under the First Amendment” and that “(t]he existence of this implied First Amendment right enjoyed by members of the public precludes a criminal defendant from enjoying a constitutional right to a ial, even if he waives his Sixth Amendment right to a public trial”); MCL 600.1420 (“The private sittings of every court within this state shall be public except that a court may, for good cause shown, exclude from the courtroom other witnesses in the case when they are not testifying. ...”).! As explained by the United States Supreme Court, the publie’s right to open court proceedings plays a vital role in our criminal justice system: ‘The open trial thus plays as important a role in the administration of justice today as it did for centuries before our separation from England. The value of openness lies in the fact that people not actually attending trials can have confidence that standards of faimess 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 ofthe criminal trial and the appearance of fairness so essential to public confidence in the system. This openness has what is sometimes described as a ‘community therapeutic value.’ Criminal acts, especially violent crimes, often provoke public concern, even outrage and hostility; this in tum generates a community urge to retaliate and desire to have justice done. Whether this is viewed as retribution or otherwise is irrelevant. When the public is aware that the law is being enforced and the criminal justice "The Michigan Constitution also provides that crime victims have “{t)he right (o attend trial and all other court proceedings the accused has the right to attend.” Const 1963, art 1, § 24system is functioning, an outlet is provided for these understandable reactions and emotions, Proceedings held in secret would deny this outlet and frustrate the broad public interest; by contrast, public proceedings vindicate the concers of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected. [Press-Enterprise Co v Superior Court of Cal, 464 US 501, 508-509; 104 $ Ct 819; 78 L Ed 2d 629 (1984) citations omitted).] Given the importance of this right to openness, there are few circumstances under which public access to Court proceedings can be limited, See Waller v Georgia, 467 US 39, 48; 104 S Ct 2210; 81 L Ed 2d 31 (1984) (explaining that “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.”); Press-Enterprise Co, 464 US at 510 (“The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”). See also Waller, 467 US at 45 (noting that “[s]uch circumstances will be rare, however, and the balance of interests must be struck with special care.”). Further, a defendant cannot waive the publie’s right to open proceedings. See Detroit Free Press v Macomb Circuit Judge, 405 Mich 544, 546; 275 NW2d 482 (1979) (holding that a Circuit Court may not “exclude the public and members of the press from a criminal trial simply because the defendant requested it and the prosecutor did not object.”); In re Midland Pub Co, 420 Mich 148, 171-172; 362 NW2d 580 (1984) (noting that, in addition to MCL 600.1420, “the common law conferred on the public a right of access to criminal trials which an accused could not abridge merely by waiving his or her federal and state constitutional rights to a public trial”); Singer v United States, 380 US 24, 35; 85 S Ct 783; 13 L Ed 2d 630 (1965) (noting that “although a defendant can, under sofne circumstances, waive his constitutional right to a public trial, he has no absolute right to compel a private trial”)While there are statutory limitations on the release of some information or records, see, eg., MCL 28.214 (restricting the disclosure of Law Enforcement Information Network (LEIN) }; MCL 791.229 (providing that presentence investigation reports information, which is nonpublic are confidential); MCL 330.1748(1) (providing that “{iJnformation in the record of a recipient, and other information acquired in the course of providing mental health services to a recipient, shall ); MCL 762.14(4) (providing that be kept confidential and is not open to public inspection.” dispositions under the Holmes Youthful Trainee Act (HYTA) “shall be closed to public the People do not anticipate introducing any such information or records of this or inspection”) an analogous nature at the February 22, 2022 hearing.” ‘The People appreciate this Court’s invitation to provide the Court with a memorandum of the law, especially considering the unique circumstances presented in this case. In a case involving a mass shooting such as this, there are hundreds of victims looking to our criminal justice system for accountability; openness and transparency are critical. Given the above statutory and constitutional rights to open court proceedings, the People respectfully submit that the proceedings should be open to the public and the media according to the Court’s regular procedure. Respectfully submitted, KAREN D. McDONALD. PROSECUTING ATT@RNEY By: M. Collins Assistant Prosecuting Attorney DATED: JANUARY 20, 2022 2 Moreover, even if there were to be a document with sensitive information that either of the parties wanted to admit ‘san exhibit atthe hearing, such an exhibit would not be entered into the public court file. It would be presented and centered at the hearing ~ allowing the fect finder to consider the item — but then returned to the respective party at the ‘conclusion of the hearing. See MCR 1.109(A)(2) (“Exhibits that are maintained by the court reporter or other ‘authorized staff pursuant to MCR 2.518 or MCR 3.930 during the pendency of a proceeding are not court records.” MCR 2.518 (noting that “exhibits received and accepted into evidence under this rule are not court records” and that “fat the conclusion of atrial or hearing, the court shall direct the parties to retrieve the exhibits submitted by them ‘except that any weapons and drugs shall be returned to the confiscating agency for proper disposition”).