Slamming the Courtroom Doors

Pretrial hearings may be held in secret, the court rules

Distrust of secret trials runs deep in Anglo-American tradition. Long before the Court of Star Chamber was abolished in England in 1641, it had been widely recognized that without public scrutiny trials can be used as blunt instruments of persecution. Open trials provide more than the mere appearance of justice; they also help ensure that justice is done.

So it came as a stunning shock to many last week when the U.S. Supreme Court, by a 5-to-4 vote, ruled that the public has no constitutional right under the "public trial" guarantee of the Sixth Amendment to attend criminal trials. The ruling undercuts a fundamental assumption of open democracy. It is also by far the court's sharpest blow to the press in a long string of such adverse rulings. At its narrowest, the decision means that pre-trial hearings could be closed when the judge finds a defendant's rights may be prejudiced. At its worst, it means that during any criminal proceeding, whenever the defendant, prosecutor and judge see fit, the courtroom doors can be closed to public and press.

Many in the press and the legal profession fear the worst. "I hate this decision," said Columbia University's journalism professor emeritus Fred Friendly. New York Press Lawyer Frederick A.O. Schwarz Jr. called it "outrageous." Fumed Harvard Law Professor Laurence Tribe, an expert on the Constitution: "There will be no need to gag the press if the stories can be choked off at the source." Said Allen Neuharth, chairman of the Gannett newspaper chain that brought the suit: "This decision is a signal that those judges who share the philosophy of secret trials can now run Star Chamber justice."

The case, Gannett Co. vs. DePasquale, arose from a routine suppression-of-evidence hearing before a murder trial in upstate New York in 1976. Two men charged with murdering an ex-policeman named Wayne Clapp had come to court trying to block the prosecution from using confessions and a murder weapon, which they claimed had been illegally obtained by police. At the hearing, the defense lawyers asked Judge Daniel DePasquale to bar the public and the press from court. The lawyers argued that adverse publicity would jeopardize their clients' chance for a fair trial. The prosecutor made no objection, and the judge cleared the courtroom. But a reporter from Gannett's Rochester Democrat & Chronicle and Times-Union later challenged the judge's ruling: the reporter relied on the Sixth Amendment, which provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial," and claimed a "right to access" under the First Amendment. The judge was unpersuaded; he saw a "reasonable probability of prejudice." His decision to close the court was first overturned, then upheld before it reached the Supreme Court.

Writing for the high court's majority, Justice Potter Stewart acknowledged that there is a "strong societal interest" in open trials. But he left for another day the question whether judges must weigh that interest against the defendant's right to a fair trial. The Sixth Amendment's public-trial guarantee belongs only to the criminally accused, wrote Stewart, not to the public itself. He specifically refused to concede that the press or the public possesses a constitutional right, under the First Amendment, to attend criminal trials. Even if such a right of "access" did exist, Stewart went on, it would have to yield to a defendant's guarantee of a fair trial.

The high court's majority opinion was hedged by the concurring opinions o Chief Justice Warren Burger and Justice Lewis Powell. In Burger's view, the decision applies only to pretrial hearings not to trials themselves. That is not a great limitation, however, since about 90% of all criminal cases are disposed of before they ever reach trial. It is during pretrial hearings that abuses by police and prosecutors are most likely to come out. Powell, arguing that the public ought to know what goes on in the courts, wanted explicitly to grant reporters a First Amendment "interest" in attending criminal proceedings. But, he added, that interest should be balanced against the risk of unfair publicity. In this case, said Powell, Judge DePasquale had struck the right balance by excluding the public.

Justice William Rehnquist, who also concurred, would go much further: defendants, prosecutors and judges should be free to bar press and public from any trial for any reason they choose. Staking out the hardest-line position of all, he declared that the public has absolutely no right to attend any criminal proceedings. A trial court, Rehnquist added, "is not required by the Sixth Amendment to advance any reason whatsoever for declining to open a pretrial hearing to the public." He specifically rejected the notion that the First Amendment is "some kind of constitutional 'sunshine law.' "

What worried the four dissenters was the likelihood that some lower-court judges will take Rehnquist at his word and begin closing off courtrooms for no good reason. Justice Harry Blackmun, writing for himself and Justices William Brennan, Thurgood Marshall and Byron White, accused the court of overreacting to the risks of prejudicial publicity in the Clapp murder case. News articles about the case were "placid, routine and innocuous," wrote Blackmun. "There was no screaming headline, no lurid photograph, no front-page overemphasis." Nonetheless, the court "reached for a strict and flat result," he said, an "inflexible rule" that ignores or pays little heed to "the important interests of the public and the press (as a part of that public) in open judicial proceedings."

Pretrial publicity can, of course, be prejudicial to the defendant. In a few celebrated cases, like the lurid 1954 murder rial of Dr. Sam Sheppard, the press has turned courtrooms into sideshows. But Blackmun pointed out that the Supreme Court itself has recognized that "cases such as these are relatively rare." Even "pervasive, adverse publicity" does not necessarily bias jurors. Some studies have indicated that publicity has little effect; ingrained local prejudices probably are a more serious problem.

Blackmun's 44-page opinion argued that the public does have a constitutional right to open trials. Courts, including the U.S. Supreme Court, have for more than two centuries reasserted the "principle that justice cannot survive behind walls of silence," Blackmun wrote. He pointedly quoted a dissenting opinion written by Justice Stewart himself in a 1965 decision that overturned Billie Sol Estes' fraud conviction because his rights had been prejudiced by television coverage of the trial: "The suggestion that there are limits upon the public's right to know what goes on in the courts causes me deep concern." Blackmun would let judges bar the public only in situations where closed hearings were "necessary in order to ensure that a defendant not be denied a fair trial," and if closing the proceeding would indeed keep prejudicial information from getting to the public. The reason for imposing such strict standards is basically that judges, prosecutors and defendants cannot always be trusted to protect the public's interest. "A great many lower-court judges would like to take advantage of any opening they have to keep the press out," says Professor Tribe. Indeed, Blackmun in his dissent warned of "connivance" by a defendant who is a public official with a prosecutor and a judge, all of whom belong to the same political party. And many wondered what would have happened to Watergate if reporters had been barred from court. "It would have been a disaster," says Reporter Bob Woodward, if the Watergate burglars' arraignment hearing had been closed. "It was a crucial piece of the puzzle, which spurred my interest to go on with the investigation." Closing the courtroom will make that kind of investigative reporting much harder to do. More important, it will leave the public in dangerous ignorance about what takes place behind closed courtroom doors.

Still, the Supreme Court has certainly not had the last word on the subject. The majority opinion leaves room for journalists to challenge judges who try to close off trials, or to object when judges close pretrial hearings without any real reason. And Congress and state legislatures remain free to require open hearings when the defendant's right to a fair trial is not in danger. In years to come, the court may find itself reconsidering what it has done to the public's interest in open justice. qed

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