Settlement Opens Georgia Courtrooms to the Public

by David M. Reutter

Human rights groups have applauded efforts to open Georgia courts to members of the public, putting an end to a widespread practice of courtrooms being declared off limits – a practice that was condemned as a violation of the Sixth Amendment because it erodes the public’s right to observe the judicial system.

In November 2013, Superior Court judges in the Cordele Judicial Circuit – which includes Ben Hill and Crisp counties – agreed to a settlement that resolves a class-action suit filed on behalf of citizens who were prohibited from attending court hearings. The lawsuit was brought by the Atlanta-based Southern Center for Human Rights (SCHR). See: Fuqua v. Pridgen, U.S.D.C. (M.D. Ga.), Case No. 1:12-cv-00093-WLS.

The settlement followed two rulings by U.S. District Court Judge Louis Sands, who denied motions to dismiss the class-action suit.

“Judge Sands has clearly stated that the public has a right to view court proceedings, and after a long and hard road, the judges in Ben Hill and Crisp counties have finally seen the light,” said SCHR attorney Gerry Weber. “A closed courtroom is one that is less accountable to the public. What is done behind closed doors can be different to what is done in the cold light of day,” he added.

Pursuant to the settlement, among other provisions the parties agreed that “The First Amendment requires all pre-trial proceedings held in Ben Hill and Crisp counties, whether in jail courtrooms or elsewhere, be presumptively open to the public.” Further, courtrooms should not be closed unless there are “documented findings of fact justifying a compelling interest in the public’s exclusion in a particular case, and the consideration of narrowly tailored alternatives to closure.” The defendants also agreed to pay $40,000 in attorneys’ fees to the SCHR.

The class-action lawsuit, filed in June 2012, alleged that defendants’ family members and friends – and in one case even a pastor – had been prohibited from attending court sessions. According to the complaint, members of the public were barred unless they could show they were related to defendants who were appearing in court.

Judges had cited limited space in law enforcement center courtrooms, as well as security concerns related to transporting defendants to county courthouses where larger courtrooms were available, as reasons for restricting court attendance to defendants’ family members.

The settlement addressed this issue, stating: “In order to access public courtrooms, citizens need not answer questions from court or law enforcement staff, and Defendants must not demand that persons seeking entry explain who they are and their reasons for seeking entry in courtrooms.”

In other positive steps, Fulton County Superior Court Judge Christopher Brasher quickly put a stop to the practice of closing courtrooms to the public after discovering it was occurring in his court. Brasher blamed “overzealous deputies,” and ordered that no member of the public be denied access to his courtroom.

Fulton County Superior Court Judges Todd Markle and Robert McBurney also said they were unaware that the public was being barred from entering their courts, and that they had not given their approval for such practices.

Jeffrey Davis, director of Georgia’s Judicial Qualifications Commission (JQC), said the commission had issued a formal opinion in August 2013 after receiving numerous complaints from citizens who were denied access to courtrooms.

“Our efforts to educate judges about these issues have resulted in the type of response we would have anticipated,” Davis said. “Judges are complying with the opinion and modifying practices accordingly. Since the issuance of our opinion, we have been encouraged by the response of judges and the willingness to bring their courts into full compliance with the law.”

The argument that space in courtrooms is limited and security is threatened by moving defendants to larger county courthouses had been cited by a multitude of judges across Georgia who routinely barred members of the public from their courtrooms, according to a JQC report released following an investigation.

The report found that signs were posted on courtroom doors across the state, denying access to either the public in general or specific groups such as children. In many courts, the report said, bailiffs blocked entry to courtrooms even though members of the public have a legal right to attend court sessions.

“We’ve had our own investigators and commissioners go out and visit a courtroom and they have been greeted by a bailiff or a deputy sheriff and been told to state their business or otherwise they don’t need to be there,” said Marietta attorney Robert Ingram.

DeKalb, Cobb, Fulton and Towns counties have had courtroom closures challenged in state appellate courts.

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

However, prior to the JQC’s opinion, Davis said it was “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.” He added, “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.”

In Presley v. Georgia, 130 S.Ct. 721 (2010), the U.S. Supreme Court held that trial courts have an obligation “to take every reasonable measure to accommodate public attendance at criminal trials.” That case, which reversed a ruling by the Georgia Supreme Court, involved a DeKalb County judge’s closure of her courtroom during jury selection.

But in 2011, a year after the Presley decision, DeKalb County State Court Chief Judge Wayne Purdom posted signs limiting access to his courtroom on days he took jail pleas, when numerous prisoners were in court and on arraignment days. At those times members of the public were admitted only “by request.”

DeKalb County State Court Judge Barbara Mobley resigned in 2011 when faced with a 16-count JQC complaint that included allegations she had interfered with the public’s right of access to her court. She was accused of “Directing courtroom bail-iffs and other court personnel to question members of the public, and the bar, who are merely observing courtroom proceedings, and requiring them to identify themselves and state their business before the court, thereby chilling the public’s right to observe matters before the court and restricting the public access to the court.”

Atlanta attorney Brian Steele has pursued appeals in two cases involving the closure of courtrooms to the public. In a case strikingly similar to Presley, Steele challenged the barring of the public from jury selection during the 2009 rape trial of Corsen Stewart, including Stewart’s mother, who was prohibited from entering the courtroom during voir dire.

Steele said he plans to use Stewart’s appeal to try to overturn a 2010 Georgia Supreme Court ruling in the murder conviction of Travion Reid. In Reid’s case, the trial court closed the courtroom during the testimony of two witnesses whom prosecutors said feared for their safety. The state Supreme Court refused to overturn the conviction because neither Reid nor his attorney had objected to the closure, but Chief Justice Carol Hunstein wrote in a dissenting opinion that it was not Reid’s responsibility to object.

“Although the majority concludes that Reid has not shown prejudice,” Hunstein stated, “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.” See: Reid v. State, 286 Ga. 484, 690 S.E.2d 177 (Ga. 2010).

In the second case, a Towns County judge moved jury selection in a criminal case to a church and barred the public – including the defendant’s wife and daughter – from attending. Steele asked an appellate court to reverse the conviction and order a new trial on that basis, but the justices instead granted a new trial on other grounds in 2011 and did not address the courtroom access issue.

In the Georgia Supreme Court’s initial decision in the Presley case, then-Chief Justice Leah Ward Sears had noted in a dissenting opinion that lack of space is an inadequate reason to close a courtroom. “A room that is so small it cannot accommodate the public,” she wrote, “is a room that is too small to accommodate a constitutional criminal trial.”

Sears, who is now in private practice, said she sympathizes with judges dealing with small courtrooms that they are trying to keep secure. She sees a more important value at stake, however. “Public access is one of the cornerstones of our democracy,” she said. “It’s what keeps us free.”

Sources: www.dailyreportonline.com, www.occupy.com, www.schr.org

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