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D.C. appeals court clarifies right of access

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    News Media Update         WASHINGTON, D.C.         Secret Courts    

D.C. appeals court clarifies right of access

  • The District of Columbia Court of Appeals issues a reminder that the public cannot be excluded from court hearings, except when it serves a “compelling interest.”

July 22, 2004 — In response to allegations by a public defender that judges on the Superior Court in Washington, D.C., routinely seal entire cases, the District of Columbia Court of Appeals issued an opinion today reiterating the public’s First Amendment right of access to judicial proceedings.

“[T]o justify closure of a protected judicial proceeding, the trial court must find that closure serves a compelling interest,” the district’s highest court declared, citing the U.S. Supreme Court’s 1986 decision in Press-Enterprise Co. v. Superior Court .

The unanimous three-judge panel added that a proceeding may not be closed unless there is a “substantial probability” of harm from leaving it open to the public. There also must be no adequate alternative to closure, the court held.

The decision did not break new legal ground, but it served to remind judges and prosecutors of their obligations to the public in the wake of claims by a public defender that proceedings are routinely closed.

On May 6, public defender Janet Mitchell was ordered to leave the courtroom where a co-defendant of her client William Nellson was entering a guilty plea.

Acting at the insistence of the prosecutor, Emory Cole, Superior Court Judge John Bayly said Mitchell had to leave “to ensure the safety of all participants,” according to the court transcript. Cole had expressed concern that the defendant might be identified as cooperating with authorities. Bayly allowed some family members and friends of the defendant to stay, but he barred the courtroom to Mitchell and members of the general public.

Attorneys for the public defender’s office quickly asked the Court of Appeals to order Bayly to unseal the transcript of the closed session. Their request was denied without opinion on June 23, after prosecutors told the appeals court that the record would soon be opened.

Not satisfied with that concession, public defender Sandra Levick asked the appeals court to reconsider its denial and to issue written guidance. Her motion attached a printout of approximately 200 cases identified in the D.C. Superior Court’s Criminal Information System only as “Sealed Record.”

“The unconstitutional deprivation of the public’s right of access to criminal proceedings and criminal records appears to be endemic in the Superior Court,” Levick argued.

In its three-page order today, the court of appeals again decided not to issue an order to Bayly, but took up Levick’s invitation to issue written guidance.

The court said it had “full confidence” that prosecutors in the Superior Court would be “instructed on the strict conditions governing any request to seal a criminal record or to close a criminal courtroom.”

(Nellson v. Bayly) JM

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