We cannot adequately convey the depth of our disappointment at the actions of superior court judge Doug Green, who this week took the unprecedented action of closing an Alamance County courtroom to the public during part of a murder trial.
We’ve seen rogue judges across the nation (at the federal, state, and local levels) who have substituted their preferences, even whims, for sound constitutional practice. We certainly didn’t expect that kind of jackleg jurisprudence from someone we had heretofore considered a rather fair and capable judge.
To the best of our knowledge and recollection, judge Green’s courtroom closure is the first of its kind in Alamance County superior court in at least 34 years.
Not only did he close the courtroom to the public and press, but he failed to follow any of the U.S. Supreme Court’s guidelines on procedural protections and prerequisites that must be established before doing so.
First, he failed altogether to conduct a public hearing about whether to close the courtroom, as required by U.S. Supreme Court precedents.
He also failed to explain, in advance, how closing the courtroom was necessary (a) to serve an overriding governmental interest (such as protecting witnesses, preserving a defendant’s right to a fair trial, or avoiding public disclosure of sensitive information); (b) to outline how there was no less restrictive means of protecting that interest; and (c) keeping the scope and duration of the closure as narrow as possible. The court must make written findings sufficient to support the decision to close the courtroom.
Instead, Green just unilaterally announced that all spectators must clear the courtroom due to what he initially described only as the “sensitive” nature of the forthcoming discussion. The underlying motion was the prosecution’s desire to bring before the jury a pattern of other felony charges, most related to drug trafficking, unrelated to the murder charge for which the defendant was on trial.
No hearing. No explanation. No exploration of less restrictive options.
Only when this newspaper’s publisher appeared at the Monday afternoon session to protest the morning’s closure did Green offer any justification, albeit ex post facto, for that morning’s court closure.
The judge claimed that he had determined that in order to protect the defendant, whose life might be endangered by the information produced in open court, he had closed the courtroom.
While he had appeared to have made the closure of his own initiation, he finally explained in open session that the closure was actually requested by the defense – apparently during a little private huddle in the judge’s chambers. Not the way court is supposed to be conducted.
Again, according to U.S. Supreme Court precedents, there should have been a motion in open court, arguments presented, and, importantly, an opportunity for members of the public, such as this newspaper’s publisher, to be heard.
And, if he ruled for a closure, he is supposed to outline the reasons in writing with sufficient specificity that an appeals court could evaluate the process.
The U.S. Supreme Court has made clear that any court closure must be supported by a written order, specifically detailing the basis for the closure and the reasons that alternatives to closure or more narrow measures were not available.
But Green had not done any of that, either.
Oh, and just by the way, the defendant was in jail at the time, so his “safety” should not be a real concern. (And no evidence, testimony, or explanation was ever given as to why, or what kind of, danger Garyonded Stepney or his family might supposedly be in.)
We should also note that in another murder trial we covered in January, superior court judge Stephanie L. Reese opted to keep the courtroom open when very similar, ostensibly safety-related concerns, were raised during the double-murder trial of Issiah Ross in Orange County superior court.
This newspaper has no brief for either the prosecution nor the defense in the underlying murder case. We were simply there to cover what each side said, the testimony, the evidence, rulings, and, ultimately, the verdict – which came in Tuesday afternoon as not guilty.
Judge Green also ignored the most fundamental protection, in North Carolina’s Constitution, that’s supposed to protect defendants, prosecutors, and the public: “All courts shall be open.” (Article I, Section 18)
It’s short, sweet, and direct – and, contrary to judge Green’s claims, not subject to much interpretation, much less the misinterpretation he applied.
This newspaper isn’t in every courtroom (two superior, five district courtrooms in Alamance County) every day, or even most days.
But for “big trials,” like a first-degree murder trial, the newspaper tries to be present to provide coverage of especially important court cases.
In this context, judge Green’s action are all the more inexplicable and unprecedented.
The only other time we can recall a superior court judge closing a courtroom was in 1992 when during the first Mark Crotts murder trial a visiting judge shut out the public, ostensibly to hear the report of a psychologist. The newspaper protested that closure, as well, and the judge (Gregory Weeks) recognized his error, reversed his closed courtroom edict, and released the transcript of the improperly closed portion of the trial.
We’re not aware of any superior court trial since – neither conducted by an Alamance County judge, or a visiting one – in which there has been an attempt to close the public’s access to observing a trial. (There’s been one visiting district court judge who attempted to limit the public and press’ access during the Covid pandemic, but Alamance County’s judges ultimately overruled him.)
There are a host of famous U.S. Supreme Court decisions that underscore the suspicions that naturally occur when judicial proceedings – including any portion of a trial – are conducted in secret.
“A trial courtroom is a public place where the people generally – and representatives of the media – have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place.” (Richmond Newspapers, Inc. v. Virginia, 1980)
“Openness enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the criminal justice system.” (Press-Enterprise v. Superior Court of California, 1984)
“The right to an open public trial is a shared right of the accused and the public, the common concern being the assurance of fairness.” (Press-Enterprise Co. v. Superior Court, 1986)
We very much hated to see these principles trampled by judge Green this week.
We believe he has done a great disservice to the people of this county, and his actions mark a blight on his judicial record and the administration of justice in this county.
And, to repeat, he has done so in an unprecedented fashion.
We had originally felt that wasn’t of much consequence when no opponent filed against the judge in this year’s elections, inasmuch as we had felt he was doing a pretty commendable job in his first year on the superior court bench. Now, however, we’re very much regretting not having an alternative who might provide a more constitutionally-faithful approach to serving the public in an open courtroom.
We hope this week’s action will prove to be a singular aberration, but it is, indeed, a significant one.
