The motion to close the hearing was brought by defendant Daniel Breijo, 39, Surrey, on the grounds that evidence that could later be deemed prejudicial or inadmissible would be presented at the preliminary hearing.

Breijo is charged with Class AA felony murder in the shooting death of Master Sgt. Nicholas Van Pelt, 41, Minot, and Class A felony attempted murder for the shooting of an unnamed female victim who has not been identified due to a Marsy’s Law declaration.

Breijo’s attorney Jesse Walstad presented his client’s argument to Judge Daniel El-Dweek, citing precedent that called for the closure of the preliminary hearing if the evidence or information shared could pollute the available jury pool if disseminated to the public. Walstad asked for a closed, “in camera” review of the evidence in question with the court to bolster his client’s motion, which would include police reports and other documentation. Walstad acknowledged the public has a right to access to the trial based on the First Amendment, but it is subordinate to his client’s right to a fair trial and an impartial jury.

“There are other remedies to target these kinds of harm. However, some of the other tools and mechanisms available to the court are intended to mitigate harm that has already been done. Narrow closure of the preliminary hearing is the only prophylactic remedy available to the court to prevent the dissemination of inadmissible evidence out into the jury pool before that happens,” Walstad said.

District Court Judge Daniel El-Dweek listens during arguments regarding the closure of the preliminary hearing at the Ward County Courthouse on Friday.

Stark County State’s Attorney Amanda Engelstad reiterated the state’s position, detailed in her response to the motion, that she would not be taking a position on the closure of the hearing, saying she didn’t plan on making the preliminary hearing “a mini-trial.” However, Engelstad asked the court to ensure all the factors are met based on existing precedent and allow the victim and the victim’s families to be present for the preliminary should El-Dweek rule to close it.

North Dakota Newspaper Association attorney Jack McDonald objected to the hearing closure, stating such inadmissible evidence is often presented at preliminary hearings throughout the state.

“If the decision was that you had to close a preliminary hearing because of evidence that was inadmissible at trial, then every preliminary hearing would be closed. I’m not aware of a preliminary hearing being completely closed in North Dakota in the last 15 to 20 years. If the preliminary hearing is closed in this instance, then it would raise a really big issue on appeal,” McDonald said. “There have been many high profile cases tried in the Minot district. There have been many high profile cases tried here in Bismarck in recent years in which there were open preliminary hearings, where there was a lot of publicity, where the jury was seated and the trial was held and it was satisfactory. Defense counsel himself was party to one of those high profile cases. It’s hard to believe that it would be so tainted that you couldn’t get a jury.”

McDonald cited the population of Ward County and the readership of The Minot Daily News as an example to bolster his argument, saying he didn’t think it was likely the information would permeate the whole jury pool. McDonald concluded by saying he didn’t think closure was necessary and that other alternative remedies should be considered.

Walstad responded the nature of the evidence in the case, the nature of the alleged offenses and the connections of the parties to law enforcement and court personnel heightened local interest in the case. Walstad countered that most preliminary hearings go unreported by the media, whereas his client’s case had received substantial coverage throughout the state and the nation. Walstad said given these factors, there is substantial risk of inadmissible evidence getting out.

McDonald also contested closing the courtroom for the in-camera review on the grounds that around 10-12 family members were to be allowed to view the proceedings virtually, in addition to multiple members of the Van Pelt family who were present in the courtroom. El-Dweek ruled the immediate family members of the victims would be allowed to remain present for the in-camera review of the evidence before clearing the courtroom of the public and media members. El-Dweek did admonish those family members to not relate anything shared during the review to others, members of the press or on social media.

The review lasted about a half an hour, after which El-Dweek said he would be taking the parties’ arguments under advisement, pending the submission of written arguments, which are due to the court by Monday, June 3.

Breijo’s preliminary hearing is scheduled for Thursday, June 20.