Judicial secrecy: a case of hubris in the court

Thursday, February 26, 1998

What’s going on in the nation’s courtrooms? “None of your business” seems to be the attitude of an increasing number of judges.

Consider the evidence gleaned from recent dispatches from the courthouse beat:

  • At the start of the trial Tuesday of three gang members accused of the murder of actor Haing Ngor in Los Angeles, Judge J.D. Smith threw reporters out of the courtroom when they would not agree to a news blackout on the prosecutor’s opening statements. The judge didn’t want the three defendants’ separate juries to be influenced by the different opening statements. Jurors already had been told not to read the newspapers and that opening statements are not evidence. But Judge Smith imposed the news blackout anyway — no written order, no hearing, no opportunity for the public or press to challenge the order. A day later, the judge released transcripts of the opening statements after deciding there was nothing sensitive in them.
  • Unable to persuade the U.S. Justice Department to help him out, U.S. District Judge Earl Britt hired his own special prosecutor to bring charges against journalist Kirsten B. Mitchell and her newspaper, the Wilmington, N.C., Morning Star. Her offense? Working on a story about a $36 million settlement of a pollution case of major import to the community, she read a sealed document mistakenly left open and in a file by a court clerk. The newspaper already had obtained information in the sealed order by other means. Nevertheless, the judge found the reporter in contempt of court and on Tuesday fined her $1,000. Earlier, he had fined the Morning Star $500,000 for reporting details of the case.
  • On Monday, the 5th U.S. Circuit Court of Appeals overruled a federal judge who had agreed that a New Orleans television station should not have to turn over to prosecutors unaired portions of its interview with a suspect in an arson case. The judges didn’t seem to be worried that significant sources of information — for law enforcement and the public, as well as the press — would dry up once word got out that authorities can paw at will through unused notes and tapes of news organizations.
  • Late last week, a Baton Rouge, La., newspaper, The Advocate, appealed to the U.S. Supreme Court a decision by federal judge Sarah Vance that for all practical effects muzzled jurors. After the verdict last year in a high-interest racketeering case involving two state senators, Judge Vance told the jurors that they could not be interviewed by the press, the lawyers, or parties to the case without a special order from her. This decision has widespread implications for public perceptions about the deliberations of juries and their impressions of how the case was prosecuted and how the trial was conducted.
  • Also, last week the U.S. Supreme Court refused to hear an appeal of court orders that seal away in secrecy for all time important documents in the Oklahoma City bombing cases of Timothy McVeigh and Terry Nichols. Depriving the people of access to these documents not only distorts contemporary accounts, but also deprives later histories of the detail crucial to a full understanding of this unprecedented tragedy.
  • Showing just how long such court secrecy can persist, attorneys for Watergate burglar G. Gordon Liddy were in the D.C. Court of Appeals last week asking judges to lift a 25-year-old order suppressing information about secretly recorded telephone conversations from Democratic National Committee headquarters. The Liddy lawyers, who want the information to help defend against a defamation case, also argued that making testimony about the tapes public is “essential to a full understanding of this unprecedented chapter in American history.”

And so it goes.

More and more routinely come orders from the bench to put the judicial process beyond the people’s each:

  • Banning television and still cameras, even sketch artists, from the courtroom.
  • Allowing the sitting of anonymous juries, the testimony of unidentified witnesses, and the withholding of the names of victims.
  • Issuing broad gag orders that silence anyone remotely connected to cases.

Far too frequently, the people are shut out of vital civil cases involving public health and safety, not to mention the process they are supposed to monitor. It is not uncommon to find, in the bowels of courthouses across the land, boxes upon boxes filled with secrecy. Each folder represents a case that has been filed under seal, with pretrial discovery material that has been filed under seal, and the settlement reached before trial that has been filed under seal. As far as the public is concerned, there is no evidence of this private justice done at public expense, save the cryptic docket entry of “Sealed v. Sealed.”

Why do some judges push the public to the fringes of the judicial process?

Because they want to guarantee a fair trial. Because they want to protect privacy and security and promote decorum. And, yes, because they are provoked by media excess and embarrassed when media report accurately on them.

The vast majority of judges strive to balance the interests of a fair trial with the right of the people to know, but in courts at all levels, both civil and criminal, there is disturbing evidence of attitudes that put convenience and efficiency before access and accountability.

When judges shut out the public and the press, it doesn’t matter whether they act out of hubris, rancor or a sincere desire to guarantee a fair trial and the dignity of the process. What matters is that the inevitable result of a judicial system increasingly aloof and secretive is a deepening loss of confidence in the integrity of democracy’s institution of last resort.

Courtrooms may belong to the judges, but justice belongs to us all. The more we see of it, the more we believe in it.