Judge in Holton sodomy trial challenged by attorney over transcript from closed meeting

Judge Norbert Marek, who presided over the Jacob Ewing sodomy trial in Holton, Kan., is being challenged in court for not allowing the release of a transcript from a closed meeting.

Maxwell Kautsch, a Kansas attorney representing the Topeka Capital-Journal, filed a motion to intervene in Jackson County (Kan.) District Court seeking to bring the release of the transcript. He argues the document should be public and that Marek overstepped his constitutional authority by not releasing it as yet to the public.

The Kansas City Star also has made a request to obtain the transcript.

The transcript in question describes a closed meeting on the final day of the trial. The meeting was not held in open court but a court reporter was present. Parties involved included Marek, the prosecuting and defense attorneys in the case and one juror, according to Kautsch’s motion. That day, closing arguments were delayed by about an hour.

Ewing was ultimately acquitted of charges of indecent liberties and aggravated criminal sodomy of a 13-year-old.

“The Court’s order to conduct an in camera (or in the judge’s presence) hearing ... and its refusal to disclose the transcript to date, restrict access to information despite an absence of constitutional authority in violation (of) ... First Amendment rights,” Kautsch wrote.

Marek, in a letter to The Star, wrote that the attorneys with an interest in the case should have a chance to make objections to the release of the transcript. He continued that the attorneys may be able to make such objections before the judge during Ewing’s pre-trial hearing Friday morning on additional charges. Ewing faces four charges of rape and one of attempted rape. His next trial is scheduled to begin in late June.

Kautsch argued in his motion that the meeting in question should have been held in public view.

“Criminal trials, including voir dire, are historically open,” Kautsch wrote.

The evidence of “clear and present danger to trial fairness” must be present before sealing an otherwise public document, according to Kautsch’s motion. He also claimed Marek did not follow proper procedural safeguards to justify the closed meeting.

“Because criminal trials and jury selection are presumptively open procedures, and because such openness is for the public’s benefit, the (meeting in question) and de facto sealing of its record are unconstitutional absent good cause shown,” Kautsch wrote.

This story was originally published May 4, 2017 at 6:29 PM with the headline "Judge in Holton sodomy trial challenged by attorney over transcript from closed meeting."