DA: Aspen hearing shouldn’t be closed to public

Wyatt Haupt Jr.
The Aspen Times
Aspen, CO Colorado

ASPEN ” An attempt by a defense attorney to ban the public and media from a hearing in an Aspen drug case flies in the face of the First Amendment and should not be allowed, according to the prosecution.

Chief Deputy District Attorney Arnold Mordkin objected to “any exclusion of the public or press from any” suppression hearing for Malachi Mulcahy. His remarks came in a response filed Friday in Pitkin County District Court to a defense motion seeking the ban.

Mulcahy is charged with several counts in connection with an August drug arrest. The most egregious is possession of a schedule II controlled substance, a felony charge that carries a potential penalty of 18 months in prison.

Mordkin cited a section of Colorado Criminal Practice and Procedure in support of his claim.

“The press has the right of access to attend court proceedings that are open to the public and its right to report what it observes is protected by the First Amendment,” the motion states.

Additionally, in Colorado, “a judge may close a criminal proceeding to the press only if two conditions are met.”

Those conditions refer to a so-called “clear and present danger” that the defendant’s right to a fair trial will be “prejudiced by publicity that closure would prevent.”

The other is that there is no “reasonable alternative to closure that can adequately protect the defendant’s fair trial rights.”

Mordkin contends the proceedings do not meet those conditions so the request to “exclude the public should be denied.”

Defense attorney Lauren Maytin filed the closure motion April 17, seeking to ban the public and media from her client’s hearing, largely because some of the potential statements could, she said, lessen the probability of a fair trial.

Aspen police arrested Mulcahy on Aug. 25 following a traffic stop at Hunter and Main streets, court records show. A search allegedly turned up cocaine.

He also is accused of possession of drug paraphernalia and three traffic offenses in connection with the incident. Mulcahy, 25, is free on $5,000 bond.