Wednesday, July 17, 2024

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Courts must continue to be open to the public and press: “Even in a pandemic, the Constitution cannot be put away and forgotten”


Why, some may be asking, is it so important for The Alamance News or any other news media to be in a courtroom during trials and court proceedings?

After all, some may say, haven’t you heard there’s a coronavirus pandemic going on? People shouldn’t be out and about – including not in a courtroom covering cases.
We think several recent pronouncements from the U.S. Supreme Court underscore the importance of following the Constitution – even in the midst of a pandemic, or any other crisis, for that matter.

In a ruling dealing with another First Amendment right, freedom of religion, a few weeks ago, in the per curiam opinion from that case, the U.S. Supreme Court concluded, “[E]ven in a pandemic, the Constitution cannot be put away and forgotten.”

Justice Neil Gorsuch was even more direct in his concurring opinion in the same case, “Government is not free to disregard the First Amendment in times of crisis.” And later, “[W]e may not shelter in place when the Constitution is under attack. Things never go well when we do.”

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While the case, Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York, dealt with issues involving freedom of religion, it would seem that the logic and fundamental principles involved would also apply to other First Amendment rights, such as freedom of the press. Indeed, that possibility of its wider applicability was raised by Justice Brett Kavanaugh, in another concurring opinion: “[J]udicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised.”

His summary concluding phrase (“or the like”), in our humble opinion, certainly includes freedom of the press, as well.

Many issues of constitutional law have made the point that constitutional protections should not be waived, ignored, or put side – even temporarily.

For instance, the per curiam from the New York case above also quoted from another case case, Elrod v. Burns (1976), “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Which underscores the famous quote from Founding Father Benjamin Franklin, “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”

The pandemic should not serve, for instance, as a mere pretext to close courtrooms, and keep the public and press out, as visiting district court judge Fred Wilkins has done here this week and last.

Other famous principles are embedded in long-sought, and carefully won, open court guarantees of the past. “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” – Richmond Newspapers Inc. v. Virginia (1980)

Justice Oliver Wendell Holmes once wrote, in a state supreme court case in Massachuets, “Every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.” – Cowley v. Pulsifer (1884)

Courts have also recognized that “when cases involve matters of particularly public interest … the rationale for public access is even greater.” – Under Seal v. Under Seal (1922, 1923)
Certainly, the cases stemming from the past six months or more of marches, rallies, and protests are of great local public interest.

Inevitably, when the press is not allowed to report on the statements, motions, and other courtroom issues, it leaves the public at large in the dark – and, quite often, in practice, highly suspicious.

Take just these first two Alamance County examples. Many of Rev. Drumwright’s supporters undoubtedly think that the D.A.’s motion was without any merit whatsoever. Why was it proposed? What were its fundamental elements? No one knows because no one was there to hear or report on their rationale for the case.

Did the judge let Drumwright off scot free, as some of his opponents contend, without the limitations that the D.A. had proposed? Was the judge preferential in his consideration? No one knows, or can assess intelligibly, because no member of the press was there to cover or report on the case, hear the arguments, or the counterarguments, or the judge’s rationale, if he even gave one.

And this week, did Sandrea Warren Brazee get off “too easy” for her alleged crime of aiming her pickup truck at two young black girls? Certainly, that was the initial impression of those who believe justice is not equal toward blacks who, they believe, are treated differently from how whites would be/are treated. As several commenters on our Facebook post put it, “would the treatment have been the same if the races of the driver and the girls had been reversed?”

We have attempted to provide coverage of the case, based on police and court records and an extensive interview with the D.A. The mother’s attorney, Jamie Paulen, refused the newspaper’s request for comment. But we were prevented from actually hearing the testimony, if there was any, as well as arguments, motions, or discussion, or any of the judge’s comments or explanation, if there were any.

Was the judge biased in either case – for or against either defendant? No one can say with certainty, because no one could be there to watch the proceedings, or to decipher them through newspaper reports.

This newspaper has no particular opinion about whether either case was rightly or wrongly decided. But we have a very strong opinion that the people, through a free press, should have been present in both cases to understand exactly what was said, what facts were entered into evidence, what considerations were discussed, and how the judge determined his final decision.

In fact, the newspaper doesn’t have an invested opinion in most of these protester cases – with the exception that we feel our reporter, Tomas Murawski, was wrongly arrested for simply serving as a reporter/photographer at the October 31 rally. His case should be dismissed. But that should also be done in full view of the public and press, not behind judge Wilkins’ closed doors.

“When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case. . . .” – Richmond Newspapers Inc. v. Virginia (1980)

“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. vs. Superior Court (1986)
In essence, the presence of the press is to be the collective “eyes and ears” of the community. Each journalist in a courtroom “stands in the shoes of the general public.” – Pennsylvania State Univ. v. State Employees’ Retirement Bd. (2007)

By that standard, all of Alamance County’s residents were kicked out of judge Wilkins’ courtroom this week, not just the publisher of this newspaper.

Well, we didn’t mean for these issues to read like a legal brief, but we do think it important that our readers and the general public know why we regard open courtrooms as so important to sound government.

Because of the strength of our belief in this regard, this newspaper will be part of an “emergency appeal” to the North Carolina Court of Appeals, seeking to overturn judge Wilkins’ pattern of closing his courtroom in these cases.

Hopefully, a higher court will be more willing to follow the Constitution than judge Wilkins.

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