Good news for open trials

Wednesday, January 20, 2010

WASHINGTON — First bad news for courtroom openness, then good news.

Last week, the Supreme Court dealt a setback to open-trial advocates, ruling that cameras should be barred from a high-profile San Francisco trial on same-sex marriage in part because of potential harassment of trial participants.

But yesterday, the Court returned to its traditional embrace of the right to public trials, ruling in a Georgia case that, just as the public and press have a First Amendment right of access to jury-selection proceedings, so too does the defendant have a Sixth Amendment right to have the jury screened and selected in public.

In an unsigned 7-2 ruling in Presley v. Georgia, the high court also said a trial judge has a duty to seek alternatives that will preserve openness even when, for example, it appears that there are so many prospective jurors in the courtroom that there aren't enough seats for the public.

“There is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has,” the Court ruled. The justices first recognized the First Amendment right of access to jury selection in its 1984 decision Press-Enterprise Co. v. Superior Court of California.

Though yesterday's ruling primarily expands a defendant’s Sixth Amendment right to a fair trial, its language also underscores the general public benefit of open trials.

Quoting from an earlier decision, the Court said jury selection “is itself a matter of importance, not simply to the adversaries but to the criminal justice system.” As such, the Court said, “Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials … . The public has the right to be present whether or not any party has asserted the right.”

That favorable language, in contrast to the tone of last week’s ruling, highlights the fact that the Court, while celebrating open trials as part of the nation’s traditions and constitutional protections, is still not ready to extend that tradition to allow for broadcast access, at least not in federal courts.

Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented yesterday, asserting that the case should have been decided only after full briefing and oral argument. Thomas also wrote that the ruling “belittles the efforts of our judicial colleagues” who have to interpret conflicting precedents on the issue.

The ruling won praise from advocates for court access.

“The Supreme Court quickly and emphatically reiterated its long-standing precedent, and made clear you don't get to throw the public out of a criminal trial just because your courtroom is too small or because it’s convenient,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “I can’t imagine a more emphatic message coming out of the court.” Dalglish filed a friend-of-the-court brief urging the high court to take up the case.

In the case before the Court, defendant Eric Presley was convicted by a Georgia jury on cocaine-trafficking charges, but he challenged the trial judge’s exclusion of the public — Presley’s uncle, specifically — during examination, known as voir dire, of prospective jurors.

The DeKalb County judge justified the exclusion by telling the man, who was the only person in the audience, that prospective jurors would be filling the seats, and “you can’t sit on the same row with the jurors.” Presley’s lawyer objected, but the judge still excluded the man, stating, “We have very small courtrooms and the witnesses and relatives cannot sit in the audience beside the potential jurors. That will be grounds for a mistrial.”

A divided Georgia Supreme Court in March 2009 upheld the conviction, ruling that the judge had “an overriding interest” in protecting potential jurors from taint. It also ruled that the judge was not obliged to consider alternatives when none of the parties offered any.

Leah Ward Sears, then chief justice of the Georgia court, dissented, stating, “A room that is so small that it cannot accommodate the public is a room that is too small to accommodate a constitutional criminal trial.” Carol Hunstein, the current chief justice, joined her dissent.

The U.S. Supreme Court decision did allow that “there are no doubt circumstances where a judge could conclude that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire.” But it added that judges are obliged to state reasons for the closure that can be tested on appeal. Mere concern that potential jurors might overhear prejudicial remarks is not enough, the justices suggested.

“If broad concerns of this sort were sufficient to override a defendant’s constitutional right to a public trial, a court could exclude the public from jury selection almost as a matter of course,” the Court said.

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