The name of D.C. courts spokeswoman Leah Gurowitz was misspelled in a July 26 Metro article. (Published 7/27/04)

The D.C. Court of Appeals has weighed in on a dispute over closed court proceedings, warning judges that they must meet strict standards before barring public access to criminal hearings or records.

The admonition came last week in a case filed by the D.C. Public Defender Service, which complained about an "endemic" disregard for "the public's right of access" to proceedings. The public defender service recently found that almost 200 D.C. Superior Court cases are entirely under seal, along with an unknown number sealed to varying degrees.

The Public Defender Service turned to the appeals court after a D.C. Superior Court judge ejected one of its lawyers from a recent hearing without an explanation or an opportunity to challenge the decision. Prosecutors, who sought to close the hearing, have acknowledged that they were wrong in this instance, and the judge has indicated that he will unseal the case.

But the Public Defender Service continued the appeal, saying the issue goes beyond a single incident.

The number of cases under seal and the conduct of the judge and prosecutor in the case in question suggested "routine and flagrant" disregard for the First Amendment, the Public Defender Service declared in its filings. "This case demonstrates the lawlessness that prevails in the absence of clear rules," the public defenders wrote.

In its three-page order, issued Thursday, the appellate court reaffirmed that the Supreme Court has set "strict conditions governing any request to seal a criminal record or close a criminal courtroom."

The nation's high court has established that open court proceedings are essential in ensuring the integrity and accountability of the criminal justice system. Only when a compelling, competing interest, such as the right to a fair trial, would be compromised by openness can a court consider closing a proceeding or sealing a case, the high court has said. But judges first must consider alternatives.

The appellate court's order was a brief but unmistakable rebuke of the practices of the lower court, according to an advocate for First Amendment rights.

"It's short and to the point," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "It makes it absolutely clear that it was an untenable, unconstitutional practice."

The challenge arose this spring from a murder case before Judge John H. Bayly Jr. Details are provided in court papers filed by Sandra K. Levick, an appellate lawyer for the Public Defender Service.

Janet Mitchell, a public defender, was representing Edward Nellson, one of the defendants in the May 2002 slaying of Daniel R. Krug, a George Washington University graduate student.

Police said Krug was strangled during a burglary of his Northwest Washington apartment. After his arrest, Nellson placed himself at the scene but told investigators that the other defendant, Stephen Burciaga, was the actual killer.

Burciaga told police that he was the getaway driver and that Nellson was the killer. Prosecutors apparently believed Burciaga, putting him in the best position to make a plea bargain in exchange for testifying against Nellson.

On May 6, Burciaga was due in court, and Mitchell, expecting him to plead guilty, was on hand for what typically would be a public proceeding. If Burciaga agreed to testify against her client, this would give her an opportunity to evaluate his credibility.

But the prosecutor, Assistant U.S. Attorney Emory V. Cole, objected to Mitchell's presence. Cole said there was no reason for Nellson's attorney to be at the hearing and asked the judge to order Mitchell out of the courtroom.

Mitchell told the court that she had a First Amendment right to be present and asked why she was being excluded.

Burciaga's attorney, Nikki Lotze, raised concerns about her client's safety. Mitchell noted that Nellson and Burciaga were locked up in different facilities and argued that given that arrangement, safety was not sufficient grounds to record a plea in secret.

The possibility of a guilty plea was not a surprise, Mitchell said, and details of any plea agreement ultimately would have to be turned over to the defense.

Bayly, citing only his supervisory authority and making no specific findings, ordered Mitchell to leave the courtroom. The judge had marshals lock the door behind her, according to the public defender's account.

A partial transcript of the proceedings -- ending at the point where the hearing was closed -- was released soon after the public defenders office took the matter to the Court of Appeals. It reveals that the judge considered sealing such a hearing to be unexceptional. "I understand that there's a practice of this courthouse," Bayly told Mitchell at one point.

Nellson is awaiting trial Sept. 27 on a charge of first-degree murder, according to the U.S. attorney's office. Burciaga's status remains a secret as Bayly has not unsealed the case, although prosecutors said he plans to do so.

The Public Defender Service wanted a strong signal from the appellate court about the high threshold for sealing criminal matters. Without that guidance, the public defenders wrote, lower courts would continue to "violate the public's First Amendment right of access to criminal proceedings and criminal records."

In its ruling last week, the appellate court noted that the U.S. attorney's office provided assurances that its prosecutors would be instructed on "the strict conditions governing any request to seal a criminal record or to close a criminal courtroom." The case was heard by Judges Frank E. Schwelb, Vanessa Ruiz and Michael W. Farrell.

Channing Phillips, spokesman for the U.S. attorney, said the prosecutor in Burciaga's case had sought to seal the proceedings because of safety concerns. Since then, Phillips said, prosecutors have been directed to consult with their supervisors before seeking to close court proceedings.

D.C. Courts spokeswoman Leah Gurowtiz said Superior Court Chief Judge Rufus G. King III is reviewing the order to determine whether any policies or procedures regarding sealing criminal cases should be revised.