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Public shut out of Georgia courts
R. Robin McDonald
Daily Report
 07-03-2012

 Judges across Georgia are closing courtrooms to the general public, citing as reasons a lack of space and security  concerns.

 They are doing so even though the U.S.  Supreme Court in January 2010 vacated a Georgia Supreme Court ruling that had  upheld the closure of a DeKalb County courtroom and the removal of members of the public during jury voir dire. The U.S. justices said at the time that courtrooms should remain open to the public except in rare circumstances.

Since then, courtroom closures have been  challenged in DeKalb, Fulton, Cobb and Towns counties in Georgia’s appellate  courts. Two weeks ago, the Southern Center for Human Rights sued the Cordele  Judicial Circuit, claiming that its superior court judges are continuing to bar  public access to court hearings despite a consent agreement in 2004 that they  would stop the practice.

 The appellate challenges to closed courtrooms across the state have garnered mixed success, but Judicial Qualifications Commission officials are concerned. Closing courtrooms, said JQC Chairman John Allen, “could be a violation” of state judicial canons “depending on the set of facts surrounding the closing.”

JQC director Jeffrey Davis told the Daily  Report that in his work observing judges in action around the state, he is often  met at the courtroom doors by local deputies who ask for his credentials and  question why he is there.

 “I’ve personally experienced the chill that  members of the public would feel,” he said. “I’m a lawyer. It’s not that I’m  under-dressed for court.”
Once a member of the public has passed through  courthouse metal detectors or security at a courthouse entrance, Davis said, “No  citizens should be questioned about the reason they are in a public courtroom.”

 But, he continued, “It seems to be the  modus operandi around the state for courts to have deputies who question those who are simply in the court without business before the court. People ought to be able to watch their government in action. And justice which is done in secret—or a feeling by those who are coming to the courthouse that somehow they don’t have a right to be there—chills the public’s ability not only to access the courts but also to have confidence in the judicial system.”

DeKalb County
Last year, DeKalb State Court Judge Barbara Mobley resigned her post to end a JQC ethics investigation that included allegations she had interfered with the public’s access to a public courtroom. Mobley posted signs that restricted access to court hearings and directed court personnel to ask court observers to identify themselves and state their business, “thereby chilling the public’s right to observe matters before the court,” according to the JQC’s report to the Georgia Supreme Court.

 The Daily Report reported last year that  Mobley was one of a number of DeKalb judges who had posted signs on their courtroom doors limiting courtroom access to criminal defendants, their lawyers and alleged victims. The sign on Mobley’s door said, “We do not have space for extra people.”

 Allen told the Daily Report last week that  after Mobley resigned, he asked the DeKalb judges “to please meet and reconsider  their policy of automatically closing their courtrooms as opposed to making a  case-by-case decision.”

“Openness of course is such a basic principle of the law in Georgia jurisprudence and U.S. constitutional jurisprudence,” Allen continued. “You erode the confidence in the integrity and fairness of the courts by closing the courts as a matter of course.”

“Ours was just a courtesy call,” he said, “so that the conduct of the court didn’t rise to the level of being  egregious.”
 
Allen said he also reminded the DeKalb bench of the U.S. Supreme Court’s ruling in Presley v. Georgia, 130 S. Ct. 721, which slapped the Georgia Supreme Court for upholding a decision by DeKalb County Superior Court Judge Linda Hunter to close her courtroom during jury selection in a criminal case. 

In its ruling vacating the Georgia decision, the U.S. Supreme Court held that the Sixth Amendment right to a public  trial extends to the voir dire of prospective jurors and that, “Trial courts are  obligated to take every reasonable measure to accommodate public attendance at  criminal trials.”

 The decision did allow for exceptions,  holding that, “The right to an open trial may give way in certain cases to other  rights or interests, such as the accused’s right to a fair trial or the  government’s interest in inhibiting disclosure of sensitive information.”

But, it stated, “Such circumstances are rare, however, and the balance of interests must be struck with special care.  The party seeking to close a hearing must advance an overriding interest that is  likely to be prejudiced, the closure must be no broader than necessary to  protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.”

 Last year, DeKalb Chief State Court Chief  Judge Wayne Purdom told the Daily Report that he posted signs limiting access to  his courtroom on days when he heard jail pleas, when numerous prisoners were in  court or on arraignment days when as many as 100 people might need seats. On  those days, he said, members of the public were only admitted “by  request.”

 While acknowledging that courtroom access “is a public right,” Purdom told the Daily Report that “regulation of entrance  to the courtroom is a case-by-case situation.” Purdom also agreed that signs  barring entry might have “a little bit of a chilling effect.” But, he continued, “I think there are limited situations where control of access is  appropriate,  although keeping the public out is not.”

 Fulton challenges 
Last  month Atlanta attorney Brian Steel argued before the Georgia  Court of Appeals  that a judge’s decision to close a Fulton County courtroom had violated a  criminal defendant’s constitutional rights.

Steel appealed the decision of then-Fulton  County Superior Court Judge Marvin Arrington, who in the 2009 rape trial of  Corsen Stewart apparently barred the public, including the defendant’s mother,  from the courtroom during jury voir dire in a situation nearly identical to the  DeKalb closure that led to the U.S. Supreme Court ruling.

 Steel, who was not Stewart’s lawyer during  the trial, said he took the case on appeal after Stewart’s mother came to see  him, told him she had been locked out of the courtroom when attorneys were  questioning potential jurors for her son’s case and burst into tears in  his  office.

 In 2010, Steel asked the Georgia Supreme  Court to overturn the 2006 Fulton County murder conviction of Travion Reed,  basing one argument  on Judge Craig Schwall Sr.’s decision to close the  courtroom during the testimony of two witnesses. Prosecutors countered that the   courtroom’s closure was warranted because the two witnesses in question feared   for their safety. A third witness in the case had been shot a short time after   the murder, and a fourth witness had been threatened with a screwdriver in an  attack that prosecutors claimed was likely linked to the defendant.

 At the time, neither Reid nor his  attorney  objected. That omission proved critical to the Georgia Supreme Court  which—three  weeks after its decision in Presley was vacated—affirmed Schwall’s  decision to  bar public access to his courtroom during the testimony.

Steel did not represent Reed at his trial.

In an opinion written by Justice George Carley, the high court held 6-1 that in order to prevail, Reid “must show that he was prejudiced by counsel’s decision not to object to the brief closing of the courtroom. … Indeed, to hold otherwise would encourage defense counsel to manipulate the justice system by intentionally failing to object in order to ensure an automatic reversal on appeal.”

 But Chief Justice Carol Hunstein, the lone  dissenting vote, countered that, “No reason was articulated to support closing  the courtroom” for the two witnesses when “closure was not sought for others who  not only might have been, but actually were, placed in peril because of their  testimony.”

“The trial court’s findings were clearly  inadequate to support closure of the courtroom,” her dissent stated. “Moreover,  the trial court failed to consider any alternatives to closure,” she said.

“Although the majority concludes that Reid  has not shown prejudice,” Hunstein concluded, “Reid is not required to do so in  order to obtain relief for a structural error which was a violation of the  public-trial right.”

Steel said last week that “Prejudice is pretty hard to show when you’re closing a courtroom. It’s an almostu nobtainable  bar that the Supreme Court set.” Steel said that in the Stewart appeal he  argued before the state appellate court on June 13, “I’m challenging the Reid  decision. … It’s primed to have a new discussion about it.”

Fulton County is not the only place where  Steel has challenged closed courtrooms. In 2010, Steel also asked the Court of  Appeals to overturn a Towns County defendant’s conviction because the judge  moved jury selection to a nearby church and barred the public, including the  defendant’s wife and daughter, from attending. The Court of Appeals  reversed the  conviction last March on other grounds without addressing the courtroom  closure.

 Cordele claims 
Last  month the Southern Center for Human Rights in Atlanta filed suit  against the  Cordele Judicial Circuit’s three superior court judges and the  sheriffs of Ben  Hill and Crisp counties in U.S. District Court in the Middle  District of Georgia  in Albany, claiming that county court officials are  systemically barring the  public from criminal court hearings that they say  should be open to the  public.

Stephen Bright, the center’s president and  senior counsel, noted that in 2003, as part of a larger civil rights suit on  behalf of the county’s indigent defendants, the Southern Center accused circuit  officials of restricting public access to the courts. But Bright said the 2003  suit was dismissed in 2004 after circuit officials promised that courtrooms  would remain open.

 John Pridgen, chief superior court judge of  the Cordele Circuit and a defendant in both suits, has called the 2003  allegations “complete fabrications” claiming, “There was never anything  inappropriate about what we did then and what we do now.”

Another Cordele Circuit judge noted in a  letter filed with the Southern Center’s complaint that the courtroom in the  Crisp County Law Enforcement Center is particularly small, with limited seating.

Southern Center attorney Gerry Weber told  the Daily Report last month that the center also has received anecdotal evidence  that other courtrooms are being closed “in a lot of different places” across the  state and is launching an investigation to determine the extent of the  problem.

 ‘Keeps us free’ 
Courtroom public access issue came to the fore in Cobb County last  year, when former Governor Roy Barnes secured the dismissal of an indictment   against the CEO of the Cobb EMC because the grand jury presentments were made  inside the new courthouse while its doors were locked and deputies barred access  via a separate catwalk entrance.

The Georgia Court of Appeals upheld the indictment’s dismissal in March, ruling that, “The Georgia Supreme Court has held that any failure to return the indictment in open court is per se injurious  to the defendant.”

Former Georgia Supreme Court Chief Justice  Leah Ward Sears, who dissented in the state Supreme Court’s Presley decision,  said in an interview with the Daily Report that the U.S. Supreme Court opinion  vacating Georgia’s Presley decision “made it pretty clear … that you cannot, as  a matter of policy, close courtrooms.” In her dissent in Presley, Sears  specifically addressed arguments based on lack of space.

“A room that is so small that it cannot  accommodate the public,” she wrote, “is a room that is too small to accommodate a constitutional criminal trial.”
But the former chief justice, now a partner at Schiff Hardin, told the Daily Report that judges still may close a courtroom “in very narrow circumstances.” But their reasons  for doing so, “have  to be well articulated,” she said. “It has to be on a case-by-case basis … It  also has to be a last resort.”

Sears said she doesn’t belittle judges who  struggle with issues of space and security.

 “That’s what created the majority in the  Presley case,” she said. “It wasn’t that the judges felt you should keep people  out. They saw what a problem it was in these tiny courtrooms trying to manage  things. You get very sympathetic when a trial judge is trying to … keep things  secure.”

 The issue, she explained, is one of  competing values. But to trump the value of open courtrooms, she said, “would  take some effort. … Public access is one of the cornerstones of our democracy.   It’s what keeps us free.”

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