Gitmo Hearings Behind Closed Doors

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The inaugural Periodic Review Board ("PRB") hearing of Guantanamo Bay detainee Mahmud al Mujahid, 33, scheduled for today excludes the press and will be conducted beyond closed doors, the Jurist.org Web site reports.

President Barack Obama established the PRB via an executive order in 2011 whose aim is to review the status of certain detainees at Guantanamo Bay to gauge whether continued incarceration is warranted in the interest of national security. The Dept. of Defense has indicated 71 detainees are in line for a PRB hearing to determine whether transfer or release may be allowed.

The decision to bar the press and public from the proceedings is a tone-deaf one for an administration that could only benefit from the transparency to which it often pays lip service.  The framers of the U.S. Constitution recognized in the Sixth Amendment the importance of public trials. At the very least, it should be incumbent on government attorneys to meet the burden of proving that the Constitution does not apply to the PRB hearings.

SJC: No Right to Audiotape Where Trial Transcript Available

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A documentarian was not entitled to an audiotape of court proceedings where he was able to acquire an official trial transcript, the Massachusetts Supreme Judicial Court ruled yesterday in Commonwealth of Massachusetts v. Winfield (Docket No. 11288).

"Where an official record of the proceeding is available to the public," Justice Ralph Gants wrote, "a presumption of public access to an unofficial record is more likely to generate public confusion than to aid public understanding."

Filmmaker Steve Audette invoked the First Amendment and a common-law right of access to public courtroom records as he sought a copy of the court stenographer's backup audiotape of the proceedings in the trial of Somerville Police Officer Keith Winfield, who was convicted in 2007 of raping and burning an infant niece for whom he was babysitting. Audette's documentary will examine, among other issues, Winfield's continued assertion of his innocence.

As reported by the Universal Hub blog, the SJC ruled that the official trial transcript, a copy of which Audette purchased, and not the audio recording used to prepare the transcript, is the official judicial record.

Maine High Court Orders Jury Selection Open to Press

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The Maine Supreme Court this week voted 6-1 to open to the press and public voir dire proceedings in the high-profile Kennebunk Zumba prostitution case, the Portland Press Herald, which asked the High Court to unlock the jury selection proceedings, reported.

In the10-page decision in In re Maine Today Media, Inc., State of Maine v. Mark Strong (Case No. 2013-ME-12) written by Chief Justice Leigh Saufley, the High Court reversed the decision by presiding York County Superior Court Justice Nancy Mills to close the jury selection proceedings to the media and public. Justice Mills had expressed concern about the prospective jurors' privacy rights and possible intimidation if they were grilled in open court about the case.

The Maine Supreme Court decision, in which Justice Donald Alexander was the lone dissenter, not only ordered the lower court to open the remainder of the jury selection process to the public, but also to release transcripts of the closed-door inquiry of prospective jurors that began Tuesday, the Press Herald reported. The United States Supreme Court, in cases such as Press-Enterprise Co. v. Superior Court of California, Riverside County, 464 U.S. 501 (1984), has found a First Amendment right to attend voir dire proceedings at criminal trials.

The juror questionnaire in the highly publicized case elicited opinions from the would-be fact-finders on whether prostitution should be legalized, whether as jurors they would be able to watch videotapes of sexual liaisons and what exposure, if any, to pretrial publicity they had encountered. The 57-year-old Strong, prosecutors allege, was the business partner of Alexis Wright, who owned the Kennebunk Zumba exercise studio out of which authorities charge the defendants ran a prostitution operation. The 30-year-old Wright is scheduled to go on trial in May, facing 106 criminal counts, according to the Press Herald.

Chief Justice Saufley wrote: "We vacate the court’s order barring the public from the entirety of the

voir dire process. The matter is remanded for the trial court to conduct the
remaining voir dire in a presumptively public manner, exercising its considerable
discretion to prevent the dissemination of sensitive juror information. The public’s

access to the jury selection that has already occurred can be addressed, again at the

court’s discretion, by the release of appropriately redacted transcripts."

The trial court today dismissed 46 of the 59 charges Strong faces.

Federal Judge Will Hear Arguments on Delaware's 'Secret' Business Court

Image via WikipediaUnited States District Court for the Eastern District of Pennsylvania Judge Mary A. McLaughlin Thursday will hear arguments concerning whether a program instituted by Delaware's Court of Chancery violates the First Amendment.

The Reporters Committee for Freedom of the Press, along with Associated Press and other media entities, have submitted supporting briefs for the plaintiff in the original case brought in the U.S. District Court for the District of Delaware, Delaware Coalition for Open Government, Inc. v. The Hon. Leo E. Strine, Jr. et al (Case No. 1:11-cv-01015-MAM). At issue is a Chancery Court confidential arbitration program of which purportedly more than five companies have so far availed themselves.

The plaintiff contends businesses are using taxpayer-funded judges and a state court to litigate disputes without affording access to the public in violation of the First Amendment. Program backers claim it provides a revenue stream to Delaware and mirrors commonplace private arbitration programs. Participants shell out a $12,000 filing fee and pay $6,000 a day for the Chancery Court proceedings.

Whether the case should be tried or decided on the briefs will be on Judge McLaughlin's plate at Thursday's hearing.

Calif. Judge Opens the Door to Juvie Court

Image via WikipediaLos Angeles County Juvenile Court Judge Michael Nash, California's longest-serving juvenile jurist, this week issued an order making dependency-related proceedings  more accessible to news media coverage, The Los Angeles Times reports.

Judge Nash's ruling applies to foster care, adoption and child abuse matters, but juvenile criminal proceedings are unaffected by the order. Transparency is likely to increase because his order shifts the burden of proof to parties to demonstrate that closure best serves the minor's interest, instead of requiring news organizations to argue why proceedings should be open to the press, according to the Times article.

Juvenile proceedings, however, will continue to be presumed closed to the general public unless an objecting member of the public can articulate a legitimate reason for attendance or are present at the behest of a minor or the juvenile's attorney.

South Dakota Recognizes Right of Access to Civil Trials

Image by Mr. George1 via FlickrIn Rapid City Journal, Associated Press & South Dakota Newspaper Association v. The Hon. John J. Delaney, South Dakota Seventh Circuit Court Judge (Case. No. 2011 S.D. 55), the South Dakota Supreme Court last week ruled that the public and the press have a qualified First Amendment right of access to civil trials.

As noted by the Reporters Committee for Freedom of the Press Website (www.rcfp.org), the High Court's unanimous 21-page opinion puts South Dakota in the majority of states and federal courts that recognize a First Amendment right of access to civil proceedings. The U.S. Supreme Court has yet to rule on the issue, but in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), found the public had a First Amendment right of access to criminal trials, absent a "compelling governmental interest" that is "narrowly tailored" to bar attendance.

Defendant Rapid City Circuit Court Judge John Delaney's orders were overbroad and  improperly closed the courtroom doors, sealed records and issued gag orders, the High Court ruled,  in a case that involved an interfamilial fight concerning the fair value of Bear Country USA, a popular tourist attraction. The parties persuaded Judge Delaney to exclude the public and press to protect their privacy interests, purported confidential information, trade secrets and financial documents. The plaintiffs sued, claiming the courtroom closure violated the First Amendment.

Are You Watching U.S. Supreme Court?: Philippines High Court Allows Televising of Murder Trial

Image via WikipediaThe trial stemming from the 2009 Maguindanao Massacre that claimed 57 lives, including 31 journalists, will be televised, the Philippines Supreme Court has ruled.

As reported by the Jurist Website (http://jurist.law.pitt.edu), the Philippines High Court cited the logistical challenges of accommodating all interested parties in the courtroom as its rationale for permitting the murder trial of clan members, who allegedly killed backers of a political rival, to be aired.

The court, however, has imposed numerous restrictions on broadcasters, such as allowing only one stationary camera to record the proceedings, prohibiting the camera from zooming in or panning the courtroom, barring voiceovers during the trial, requiring broadcasters to air the day's proceedings, commercial-free, from beginning to end and preventing the re-broadcast of daily coverage until after final judgment.

Pilot Program for Cameras in Federal Courtrooms Diluted by Onerous Restrictions

Image via WikipediaThe Committee on Court Administration and Case Management of the Judicial Conference of the United States ("CACM") last week unveiled rules governing a three-year pilot program allowing cameras in federal courtrooms, and the restrictions imposed invite the stereotypical temperamental Hollywood director to declare: "I can't work under these conditions!"

Fourteen U.S. District Courts across the nation have agreed to participate in the camera experiment, ranging from the Middle District of Alabama and the District of Kansas to the Northern District of Illinois and the District of Massachusetts. When the 27-member Judicial Conference voted last September to launch the pilot program (see "TUOL" post 9/16/10), several limitations were announced, including restricting video footage to civil proceedings, requiring the consent of all parties involved, and forbidding the videotaping of the faces of jurors or witnesses.

Further restrictions announced last week include using cameras owned by the court or a contractor with the court, giving judges sole control over deciding which proceedings may be recorded, barring recording of jury voir dire or sidebar conferences with counsel and not simulcasting the recordings, but rather, making them available as early as possible. The disappointing limitations announced by CACM reflect a half-hearted effort by the federal courts to open up justice to the viewing public, lacking in the enthusiasm shown by many state courts that have embraced cameras in the courtroom.

Federal courts of appeal judges at their discretion may permit broadcasting of proceedings, but only the U.S. Circuit Courts of Appeal for the Second Circuit and Ninth Circuit have voted to allow cameras in.

Ky. High Court Rules Press Entitled Access to Criminal Contempt Hearings

Image via WikipediaIn its 16-page decision last week in Jason Riley & The Courier-Journal, Inc. v. The Hon. Susan Schultz & Com. of Kentucky (Case No. 2010-SC-0006-MR), the Kentucky Supreme Court held that state court contempt hearings are open to the news media and public.

As reported by the Associated Press, The Louisville Courier-Journal and its public safety beat reporter Jason Riley brought a court action based on Jefferson County Circuit Court Judge Susan Schultz's holding of a contempt hearing involving possible juror misconduct in her chambers in May 2010. Judge Schultz met with three jurors in closed session as a prelude to denying a prosecution's motion for a mistrial.

Kentucky's High Court reversed the Commonwealth's Court of Appeals' denial of a writ of mandamus or prohibition requiring media access to a juror contempt hearing. "Because the public's interest in a criminal contempt proceeding is essentially the same as its interest in any criminal trial, criminal contempt proceedings must be open to the public, including the media," the Kentucky Supreme Court opinion stated.

Conceding the matter was moot for the case in question, the High Court wrote: "It is not sufficient to hold the hearing first, and then determine what it is. The media and the public have the right to rely on what the docket says in pursuing their right to access."

Fifth Circuit Holds Press Entitled Access to Sentencing Hearings

Image via WikipediaThe United States Court of Appeals for the Fifth Circuit this week in Oziel Cardenas-Guillen v. Hearst Newspapers LLC (Case No. 10-40221) held that the press and public have a First Amendment right to attend criminal sentencing hearings.

Former Mexican drug cartel head Oziel Cardenas-Guillen was arrested by Mexican police in 2003 and U.S. authorities took custody of him in 2007. Security concerns prompted a change of venue from the U.S. District Court for the Southern District of Texas in Brownsville, near the Mexican border, to federal court in Houston. (See "TUOL" post 12/13/10.)

The defendant pleaded guilty to drug, conspiracy and threat charges in February 2010, and was sentenced to 25 years in prison and forfeiture of $50 million. Citing public safety issues, the prosecution successfully moved to close the sentencing hearing to the press and public, with the presiding judge sealing both the government's petition for closure and his order granting the motion.

The Houston Chronicle, by its owner, Hearst Newspapers, LLC, appealed to the U.S. Court of Appeals for the Fifth Circuit, specifically, the trial court's  post-hearing rulings that the news organization's challenge of the closure of the courtroom during the sentencing hearing and its request to be heard on the issue before the closure were moot and its denial of the newspaper's request for public notice of all future hearings and a chance to be heard if the court decided to exclude the press and public from further hearings.

The appellate court reiterated its support of the collateral order doctrine that permits the news media to intervene, though not parties to a litigation, and seek appellate review when confidentiality or closure orders are involved. The court cited the U.S. Supreme Court decision in Press-Enterprise v. Superior Court, 478 U.S. 1, 8-9 (1986) that articulated the two-pronged test for whether the First Amendment mandated access to a particular criminal proceeding: 1)whether such proceedings historically have been open to the press and public; and 2)whether public access to the proceeding in question plays a significant positive role in the functioning of that proceeding. The standard is often referred to as the "experience & logic test" because of the High Court's reference to the institutional value of an open criminal trial being recognized in both experience and logic.

The 5th Circuit decision stated: "We also conclude that the press and the public, including the Chronicle, have a First Amendment right of access to sentencing proceedings,..[and] the district court deprived the Chronicle of its First Amendment right of access, without due process, in refusing to give the press and  public notice and an opportunity to be heard before sealing the sentencing proceeding."

Although the Supreme Court has yet to weigh in on the issue of press access to sentencing hearings, by its ruling in this case, the 5th Circuit joins the 2d, 4th, 7th and 9th Circuits in recognizing such a right.

SJC Allows Press Access to Civil Commitment Hearings

Image by Mr. Ducke via FlickrIn Kirk v. Commonwealth of Massachusetts, 459 Mass. 67 (2011), the Supreme Judicial Court this week said civil recommitment hearings are presumptively open to the public.

The case involves Helen Kirk, a Carver, Mass., woman who in 2007 was found not guilty by reason of insanity of strangling her three-year-old son in March 2005, and committed to a state hospital. Two years later, state hospital officials believed Kirk could be released to a residential facility, but the Plymouth County District Attorney sought a civil recommitment hearing to keep her hospitalized.

Kirk requested that the recommitment hearing at Taunton District Court be closed to the public, which the court denied. More than three decades ago, the U.S. Supreme Court in Richmond Newspapers, Inc. v.  Virginia, 448 U.S. 555 (1980), held that the First Amendment entitles the public to attend criminal trials. SJC Justice Judith Cowin noted that although neither the federal nor Commonwealth High Courts has ever ruled that a corresponding right exists to attend civil trials, Massachusetts common law nonetheless presumes the public has such a right.

"Public access to the commitment proceedings underscores the seriousness of a potential deprivation of liberty and combats tendencies toward informality that may threaten an individual's due process rights," Justice Cowin wrote. The SJC concluded "both the legal evolution of civil commitment proceedings and the likely beneficial effects of public access to such proceedings support a conclusion that civil commitment hearings held pursuant to G.L. c. 123, sec. 16(c) are presumptively open to the public."

Kirk had argued that the release of  personal information in open court was violative of her privacy and could have a detrimental effect on her treatment. The Court said Kirk's contention was unsupported by expert testimony or other evidence. The SJC noted that although commitment hearings were presumptively open, a court could order closure of the proceedings if:  (1) the petitioner demonstrates an overriding interest that is likely to be prejudiced by an open hearing, (2) closure is no broader than necessary to protect that interest, (3) the trial court weighs reasonable alternatives to closure, and (4) the court makes written findings adequate to support the closure.

Cameras Come to 'Mt. Rushmore State' Courtrooms

Image via WikipediaThe South Dakota Supreme Court this week approved Rules 10-08 and 10-09, amending Canon 3(B)(13) of the Code of Judicial Conduct to permit cameras and electronic recording equipment in trial courts under certain circumstances, the Associated Press reports.

If the presiding judge and all parties agree to cameras in the courtroom, then hearings and trials in the state's seven circuit courts may be broadcast.  If any party opposes tv or still cameras, then the proceeding may only have audio coverage, at the judge's discretion.

The new rules, which take effect July 1, are a response by the "Mt. Rushmore State"'s high court to the legislature, which in 2009 repealed a law that barred tv and radio broadcasting and still photography in circuit courts.  In contrast, Supreme Court hearings since 2001 have permitted cameras and have been streamed live over the Internet since 2002.

Chief Justice David Gilbertson noted that juvenile proceedings and certain other court hearings would continue to exclude cameras.

Jackson Doc Trial: A TV Thriller?

Image by Getty Images via @daylifeThe involuntary manslaughter trial of  Dr. Conrad Murray, the late pop star Michael Jackson's personal physician, may be televised, the Associated Press reported today.

Los Angeles Superior Court Judge Michael Pastor voiced a willingness to green-light broadcasting the trial if the camera is unobtrusive, a term, like "low key,"  rarely associated with the tumultuous life of the late King of Pop. Judge Pastor, who expects to begin the jury selection process March 24, has scheduled a Feb. 15 hearing on pretrial motions.

The 50-year-old Jackson died June 25, 2009, of cardiac arrest at his Los Angeles home.  Dr. Murray claimed he administered CPR to the singer without success after discovering him breathing faintly. In August 2009, the Los Angeles coroner classified Jackson's death as a homicide based on what he claimed was a lethal overdose of  sedatives, including propofol, an anesthetic.

The combination of  the dysfunctional Jackson clan and the devoted legion of Michael Jackson should make for a tv spectacle, even absent any courtroom "moon-walking."

Sunshine State Bar Dimming Courtroom Cameras?

Image via WikipediaFlorida news media groups are lining up their opposition to a proposed Florida Bar rule that targets the use by certain journalists  of cell phones, recording devices and cameras at a judge's discretion, according to The Miami Herald and Associated Press.

The Florida Press Assn., Florida First Amendment Foundation and the Florida Assn. of Broadcasters objected to the Florida Bar, arguing the proposed rule, which imposes restrictions on non-"professional journalists," is too narrow because it does not include freelancers, citizen bloggers, online journalists or book authors.

5th Circuit Weighs Closed Sentencing Hearing Challenge by Hearst Daily

Image via WikipediaThe U.S. Circuit Court of Appeals for the Fifth Circuit, in an appeal filed by Hearst Newspapers, LLC concerning a criminal proceeding,  U.S. v. Cardenas-Guillen (Case No. 10-40221),  is deciding whether authorities violated the First Amendment when they conducted a criminal sentencing hearing behind closed doors without giving notice to the public.

Hearst Newspapers, LLC-owned Houston Chronicle was shot down by the district court when it requested a hearing on the court's decision to close the sentencing hearing involving Oziel Cardenas-Guillen, who in February 2010, was sentenced to 25 years in prison and ordered to forfeit $50 million to the government based on terms of a plea agreement involving drug, conspiracy and threat charges, according to a report on the Web site of the Reporters Committee for Freedom of the Press (www.rcfp.org).

The court cited security concerns in its decision to lock the public out of the hearing. The newspaper argued it was entitled to notice of the closure and an opportunity to be heard on whether the court was exceeding its discretion at the expense of the First Amendment.

Canada High Court to Rule on Murder Trial Publication Ban Thursday

Image via WikipediaThe Supreme Court of Canada is slated to decide Thursday whether to hear an appeal of a publication ban ordered by Justice Dougald McDermid, SouthWest Region Judge of the Superior Court of Justices, regarding the trial of the accused killers of 8-year-old Tori Stafford, according to a report by theStar.com.

Canadian journalists were up-in-arms over the extensive ban ordered by Justice McDermid last April involving the first-degree murder legal proceedings against the accused, Terri-Lynne McClintic and Michael Rafferty. The remains of the Woodstock, Ontario-born Stafford were found three months after her disappearance on April 8, 2009.

Sec. 648 of the Criminal Code pertaining to the publication ban prevents publication of any information about any portion of the trial at which the jury is not present before the jury begins its deliberations. The Toronto Star and The Globe & Mail were among publications that reacted harshly to what they claimed was the unusual breadth of Justice McDermid's ban.

Mass. Courts to Open Doors to New Media?

Image via WikipediaWith the blessings of the Judiciary-Media Committee, the Rules Committee of the Massachusetts Supreme Judicial Court ("SJC") has proposed amendments to SJC Rule 1:19 concerning cameras in the courtroom that would expand the use of a broader range of electronic technology.

The proposed revisions include re-christening Rule 1:19 Electronic Access to the Courts. More substantive changes involve allowing live blogging in the courtroom and the use of laptops and smartphones.  Those covering the courts, be they online journalists, traditional print and broadcast journalists or bloggers, would be required under the rule change to register with the Court's Public Information Office and sign a declaration agreeing to abide by coverage restrictions, such as not photographing or recording on video jurors, sidebar conferences, or juvenile proceedings.

To the present allowance of one "pool" video camera and one "still" camera, the proposed amendments would add a third pool camera for bloggers and other non-mainstream journalists.  The SJC is soliciting comments on the proposed revisions due on or before January 28, 2011.

Media Orgs. Seek Records Access in Chandra Levy Murder Trial

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In U.S. v. Guandique (Criminal Case No. CF1009230), four media groups this week in Washington, D.C. Superior Court filed a Motion for Contemporary Access to Courtroom Exhibits and Completed Juror Questionnaires in the Chandra Levy murder trial.


Counsel for the Associated Press, The Washington Post, Gannett Co., Inc. and the Reporters Committee for Freedom of the Press also filed the prerequisite Motion for Leave to Intervene that would enable a nonparty to seek access to case records. The move was prompted by court officials who indicated such records would not be made public during the prosecution of the defendant charged with killing California native Levy, a then-24-year-old intern for the Federal Bureau of Prisons, whose disappearance in May 2001, drew nationwide attention because of a rumored affair with Gary Condit, a former Democratic U.S. Representative from California's 18th Congressional District where Levy's family resided.


The hint of a scandal involving a purported straitlaced Congressman enabled the missing intern's story to share page one coverage with a handful of shark attacks on humans in newspapers during the summer of 2001, a situation that abruptly changed following the September 11 terrorist attacks on the World Trade Tower and Pentagon.


Numerous Supreme Court decisions, including Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), acknowledge a First Amendment right to public access to criminal proceedings and related documents. "TUOL" believes the media organizations involved are taking the proper action, but perhaps for the wrong reason.  A cornerstone of our legal system is the important concept of "justice in the open," where the public may view it. On the other hand, the tragic disappearance of Levy feeds the circulation-driven base instincts of the news media to over-cover a lurid, sensational case with no national impact or precedential legal value because of the possible sexual undertones.

Ga. Judge's Gag Gaffe

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The Thomson, Georgia-based weekly McDuffie Mirror reports that Toombs Circuit Chief Judge Roger W. Dunaway issued a gag order barring disclosure of testimony at a pretrial hearing in the murder trial of Helen Irene Ansley.


According to the newspaper, Judge Dunaway announced near the conclusion of the hearing that information concerning the hearing could not be released to the public. Judge Dunaway made the ruling from the bench at the behest of prosecutor Durwood Davis, with the consent of defense counsel Harold Wallace.


The oral gag order bars disclosure of the identities of the witnesses who appeared at the hearing as well as the testimony given in open court.  In Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), Chief Justice Warren Burger ruled that the right to attend criminal trials was implicit in the First Amendment.  Just sayin'.

UPDATE: Toledo Blade Challenges Judge's Courtroom Closure

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The Block Communications-owned The Toledo Blade has filed a complaint for an original writ of prohibition with the Ohio Supreme Court urging the state high court to overturn as an unconstitutional prior restraint Henry County Judge Keith P. Muehlfeld's order prohibiting the news media from reporting on a manslaughter trial in an open courtroom until a jury has been impaneled in the trial of a co-defendant. [See "TUOL" post 1/21/10.]

The action, The State of Ohio ex rel. The Toledo Blade Co. v. The Court of County Pleas of Henry County, Ohio & The Hon. Keith P. Muehlfeld claims that Judge Muehfeld's gag order in  The State of Ohio v. David E. Knepley & Jayme Schwenkmeyer runs afoul of the First Amendment to the U.S. Constitution, as well as the Ohio Constitution.

In Craig v. Harney, 331 U.S. 367, 374 (1947), the Supreme Court noted that what transpires in open court is public property that judges can't suppress, edit or censor. In the seminal case of Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976), the high court ruled that what occurs in a public hearing is not subject to judicial prior restraint.

Preserving the presumption of innocence and protecting the fair trial right of the accused is paramount in our criminal justice system, but as Judge Muehlfeld is likely soon to learn, it must be done without infringing on the constitutional rights of the public and the press to see the justice system in action.