Daniel Breijo

A district court judge has denied a request from the defendant in a Christmas Eve 2023 murder to close the preliminary hearing to the media and the public.

Judge Daniel El-Dweek filed his order on Thursday responding to the motion filed by Daniel Breijo, 39, Surrey, in April, concluding that closure of the hearing is not necessary to maintain his rights to a fair trial tried by an impartial jury.

Breijo’s request to close the trial was expressed in a number of briefs and at a hearing on May 24, at which his attorney Jesse Waltad cited concerns that certain evidence could be presented by the state at the preliminary hearing. The evidence was further explored during an in-camera evidentiary closed to the public, except for the surviving victim and the family members of victim Nicholas Van Pelt, and included alleged hearsay statements from Breijo and the victim, secondhand assertions and evidence obtained by searches and scene processing that could be subject of pretrial scrutiny, suppression and exclusion.

Breijo’s request was met with responses by Special Prosecutor Amanda Engelstad and North Dakota Newspaper Association attorney Jack McDonald. Engelstad initially said the state would take no position, but after the May 24 hearing changed to request the court deny the closure arguing that any hearsay statements introduced at the hearing would be limited to only what would be required to meet the necessary burden at the preliminary hearing. Engelstad argued the evidence presented at the hearing would likely be made public even if the hearing is closed if Breijo decides to challenge and exclude it from the proceedings.

Engelstad and McDonald both argued that a number of alternatives could be pursued, such as denying expanded media coverage, disseminating jury questionnaires and the change in the venue in the event such information has been found to have prejudiced the jury pool in Ward County. McDonald also argued that Breijo’s case hasn’t reached the threshold required for his overriding interests to supersede the right to public proceedings, and if Breijo’s argument was sufficient, every preliminary hearing in the state would be closed.

El-Dweek acknowledged the various solutions available to the court to conserve Breijo’s right to a fair trial, saying he was left “unpersuaded that closure of the preliminary hearing is necessary in this case.”

“Combining more than one alternative to closure can strengthen the integrity of the trial process, which have been employed in courts throughout the state. The combined effects of these alternatives further persuade this Court that the Defendant’s right to a fair trial by an impartial jury can be abundantly protected, even in light of a public preliminary hearing,” El-Dweek wrote.

A new preliminary hearing has been scheduled for Monday, Aug. 5, at 10 a.m.