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AUBURN — Despite a motion from an Auburn defense attorney and support from the state Attorney General's office to keep an Auburn Correctional Facility inmate's civil commitment hearing closed to the public, a Cayuga County judge ruled the hearing should be open. 

An ACF inmate, referred to only as Donald G., is scheduled to be released from prison after serving time for unspecified sex offenses. Before his release, a civil commitment hearing will be held to determine whether or not the inmate should be released or committed to a state psychiatric center. Civil commitment is used by some states to keep offenders in custody who are at risk of committing additional crimes upon release.   

Donald's defense attorney, Adam Van Buskirk, filed a motion on Jan. 22 requesting Judge Mark Fandrich close the court proceedings under the state mental hygiene law that states a defendant may request to close a courtroom to the public "for good cause shown." Van Buskirk argued that closing the court would protect the identities of witnesses in the case, including at least one who is a victim of Donald's, and to protect his client from retaliation at the prison. 

"Based on my interviews of numerous incarcerated clients and witnesses in several different cases, your affiant does personally have a firm belief that physical retaliation against sex offenders regularly occurs at Auburn Correctional Facility, as well as other maximum security facilities," Van Buskirk wrote in his motion.

In a letter to Fandrich dated March 12, state Assistant Attorney General Jimmie McCurdy also requested the courtroom be sealed to protect the victims' identities. 

During a conference call Tuesday afternoon at the Cayuga County Courthouse, Van Buskirk argued that the original documents in the case are already "tightly sealed," therefor the seal should extend to the entire case. 

"I think it would be much more reasonable to seal the courtroom so the witnesses don't have to go through the additional difficulty of trying to keep this testimony anonymous," Van Buskirk said. 

Kelly McNamee, an attorney with Greenberg Traurig, argued on behalf of The Citizen that the First Amendment trumps the state's good cause statute and therefor the proceeding should remain open to the public.

"Good cause is not the governing standard here," McNamee said during the conference call. "Allowing a good cause standard to govern here would essentially be allowing states to undermine the First Amendment by legislating away the public's right of access." 

Furthermore, she said the "generalized concerns over privacy and anonymity" presented by the defense are "simply not enough to meet the First Amendment standard."  

After hearing all sides, Fandrich denied Van Buskirk's motion to close the courtroom, but ordered that the victims not be identified by name, that the locations of the assaults be identified only by the state and year of the assault, and that the defendant continue to be referred to by the pseudonym "Donald G."

The civil confinement hearing, originally set for January, has not yet been rescheduled.

Staff writer Natalie Brophy can be reached at (315)282-2239 or Follow her on Twitter @brophy_natalie. 


City Reporter