May 23, 2013

Newspapers seek to unseal affidavit in Maine girl's murder

The objection is filed to a judge's decision to seal the police affidavit in the death of Nichole Cable.

By Edward D. Murphy
Staff Writer

BANGOR – An objection to a judge's decision to seal a police affidavit in the killing of 15-year-old Nichole Cable has been filed by a lawyer for the Portland Press Herald/Maine Sunday Telegram, and The Associated Press.

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Kyle Dube's attorney, Stephen Smith, talks to the media Wednesday, May 22, 2013 after Dube was arraigned in Penobscot County Superior Court for allegedly killing 15-year-old Nichole Cable. An objection to a judge's decision to seal a police affidavit in the killing of Cable has been filed by a lawyer for the Portland Press Herald/Maine Sunday Telegram, and The Associated Press.

Gordon Chibroski / Staff Photographer

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The objection filed Thursday afternoon argues that Penobscot County Superior Court Justice William Anderson's decision to keep the affidavit secret violates both the First Amendment of the U.S. Constitution and court rulings that judicial proceedings and documents should be open to the public.

Anderson's ruling called for the affidavit to be sealed at least until a Penobscot County grand jury considers charges against Kyle Dube, who is accused of murdering Nichole Cable of Glenburn on May 12. A grand jury meets the last week of each month, but it's not clear if it will take up the Dube case when it meets next week.

Sigmund D. Schutz, the newspapers' lawyer, said the high-profile nature of the case argues for greater openness of the proceedings, not less.

"In cases of heightened public interest, like this one, the First Amendment interest in open proceedings is particularly compelling," Schutz wrote in his objection. "In the United States and in the state of Maine, individuals are not put in jail for secret reasons; and the public has a right to know those reasons."

Police affidavits are usually released after the accused in a case makes his or her first court appearance.

Dube's first hearing was Wednesday, when his attorney asked that the affidavit be sealed to avoid pre-trial publicity. Police and prosecutors have released few details of the case against Dube.

Dube, 20, did not enter a plea Wednesday and consideration of bail was postponed. Dube turned himself in last week to begin serving a 90-day sentence on an unrelated charge.

On Wednesday, Anderson ordered the affidavit sealed, but did not provide his reasoning, only that the order was issued on the motion by Steven Smith, Dube's attorney.

Schutz's objection noted that a federal appeals court has ruled that rights of access to court documents can't be "frustrated by the mere invocation of a threat to the accused's Sixth Amendment right to a fair trial." That ruling also said a judge should cite specific reasons for refusing access to documents instead of relying on "conclusory assertions or unsupported speculation."

Schutz's objection also asked for an expedited ruling by the court.

Edward D. Murphy can be contacted at 791-6465 or at:

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