Reporters were not allowed to cover a crucial hearing on the Singer-Swapp indictment when it began Tuesday morning, because of an order by U.S. District Court Chief Judge Bruce S. Jenkins.
Monday afternoon, Jenkins closed Tuesday's hearing, ordered the federal government to produce a bill of particulars by Friday spelling out the charges against two defendants, and said he may strike out a minor clause from the indictment.He is also considering a motion to move the trial, based upon pretrial publicity.
These actions came during nearly five hours of arguments, ending the public stage of a series of motions. During Tuesday's secret hearing, defense lawyers were to attempt to suppress evidence and sever trials. If the defense wins these rounds, separate trials will be held and certain material won't be used as evidence.
Jenkins warned defense lawyers to argue their most sensitive material first Tuesday, because if he's not satisfied it should be kept secret, he will let reporters in.
Lawyers for Vickie Singer and Jonathan Swapp argued successfully for a bill of particulars, which will clearly define the charges. As the indictment is written, they said, it is unclear whether the government is alleging a single overall conspiracy or as many as hundreds of smaller conspiracies counting various combinations of defendants and crimes.
An important decision Jenkins will have to reach soon is whether the LDS Kamas Stake Center in Marion, Summit County, was used in or affected interstate commerce. The first three counts of the indictment, relating to the bombing of the stake center on Jan. 16, are based on a federal law that is anchored in the Constitution's commerce clause.
Kathryn Collard, representing Vickie Singer, asked the court to throw out the first three counts, saying the church was clearly not a commercial building.
"The question is whether Congress, under the commerce power, has the ability to regulate churches that are used solely for religious purposes," she said.
"If it's commerce, it's only commerce in souls."
Assistant U.S. Attorney Richard Lambert replied that when the anti-terrorist, anti-bombing law was passed in
1970, congressmen said almost any building could be protected under it possibly even private homes. He said the phrase "for business purposes" was deliberately left out of the law's final version so it wouldn't be restricted.
Lambert cited the stake's purchase of many items in interstate commerce, such as video cassette recorders and books.
"Do you have comparable things in your home?" Jenkins asked.
"Sure," Lambert said.
Jenkins then wondered whether Lambert's home is in interstate commerce. The prosecutor said he is not certain about that, but churches are covered as long as they affect interstate commerce.
Certainly thousands of dollars are collected in the stake center and then used for interstate commerce such as providing air fare for missionaries and church officials, he said.
"You don't suggest here that the stake was engaged in commercial activity," Jenkins said. He said Collard raised a legitimate question. He will rule on it later.
During debate over closing Tuesday's hearing, Randy Dryer, representing Sigma Delta Chi, the Society for Professional Journalists, said even if material is debated during the hearing that is later suppressed, reporters should be allowed in.
The public's right to observe its courts in action can be upheld while guaranteeing a free trial, he said. If necessary, more jurors can be questioned until enough were found who were not prejudiced by the material. Or reporters could be asked not to report certain items that are suppressed.
"Hundreds of thousands" of potential jurors are available, he said.
Dryer said the public has a right to know about allegations that may be raised about governmental misconduct. But Jenkins said a trial isn't a job evaluation.
On the possibility of asking reporters not to quote certain evidence, defense lawyer G. Fred Metos responded, "Quite simply, your honor, the press can't be trusted in this case."
"A criminal trial is simply not a media event," Jenkins said. "A criminal trial is concerned with doing justice the best people can in a very human institution . . . . You don't run trials to assist the media."
Jenkins said it was hard to decide without knowing what the material is that the defense wants suppressed. So he will begin the hearing in secret, but it may not remain closed.