by Cecelia Smith-Schoenwalder
Five months before he pleaded guilty on Jan. 15, former Washington and Lee student Nicholas Hansel had offered a different plea deal as the driver in a 2013 car crash that killed a fellow student and seriously injured two others.
But that earlier plea agreement was rejected by a judge last Aug. 21, then sealed by the same judge. After a new agreement was reached last week, the original one was unsealed.
The first deal proposed that Hansel, 22, plead guilty to aggravated involuntary manslaughter, two counts of maiming while under the influence and one count of driving under the influence. He would have served one year in prison, instead of the three years he began serving last Thursday.
Under the earlier rejected plea, Hansel also would have had six years probation and served 1,000 community service hours. This added up to a sentence of 13 years, 12 of those suspended. Rockbridge Circuit Court Judge Michael Irvine said it did not serve justice.
Early on Dec. 3, 2013, a Chevrolet Tahoe SUV driven by Hansel left an off-campus party carrying 10 other W&L students. After failing to negotiate a curve on Turkey Hill Road, the SUV hit a tree stump and overturned. Twenty-one-year-old Kelsey Durkin died and two other students were seriously injured.
After the first plea agreement was rejected and sealed on Aug. 21, the W&L journalism department sought to have it opened to the public. Professors Toni Locy and Brian Richardson, the department head, sent a letter to the court citing the public’s right to access criminal trials under the U.S. Constitution, Virginia’s Constitution and a provision of state law, Section 17.1-208.
After Judge Irvine stepped down from the case, Judge Jay Swett was appointed and reassessed the sealing of the plea agreement. He upheld Irvine’s decision to keep it secret and said it could taint Hansel’s right to a fair trial.
The original plea agreement contained the following statement:
“Defendant will state in open court, on the record, either in testimony or in his responses to question from the court, that his conduct was gross, wanton and culpable.” Those last three words are taken from the Code of Virginia sections 18.2-36.1 as the legal standard establishing aggravated involuntary manslaughter.
The rejected plea agreement, in other words, offered an admission of guilt precisely related to the most serious charge that Hansel was facing in the local jury trial that would have begun this week.
Locy and Richardson, both of whom covered courts as journalists, said after last week’s conclusion to the case that it is unusual to see a plea document sealed from the public.
“To me,” Locy said, “the details of the plea agreement are obviously interesting, but for me, the issue is bigger. The fight to get this document unsealed is more about holding public officials accountable and keeping the public informed on what sorts of deals prosecutors and defense attorneys are entering into and the way the judges respond to those agreements.”
“If they’re going to withhold information that’s public, they need to have a really good reason for that,” Richardson said.
W&L Law School Professor Jonathan Shapiro, who practiced criminal law in state and federal courts for almost 40 years, said this case was unusual, but that the judges were probably protecting Hansel’s right to a fair trial.
“The likely reason this was sealed to begin with is because you can understand that it would be harmful to the defendant if the world knew he was trying to plead guilty and he goes to trial,” Shapiro said.
Shapiro said that the jurors would have information about the kind of sentence the defendant was trying to get, and because they would have known it was rejected, they may feel obligated to give him a harsher sentence.