IN THE TRIAL that produced the Court of Appeals' ruling on preventive detention, two Superior Court judges had excluded the press from the pretrial hearings. That, too, was appealed, and the appellate court has now ruled that the press should not have been barred. The First Amendment, wrote Chief Judge Newman for the majority, "provides right of access to pretrial proceedings. . . . The principles that support a right of access to trials apply with equal force to pretrail proceedings."
This decision is also welcome, especially at a time when the open courtroom principle has been under sustained attack. On one level, the opinion addresses the question of whether the trial judges should have explored more limited safeguards to protect the defendant's right to a fair trial free of prejudicial publicity -- reviewing privately certain evidence, for instance -- before closing the courtroom.
For some trial judges, apparently, booting out the press is its own reward. Thus, the appellate majority pointed out that neither trial judge had asked how the defendant's Sixth Amendment rights would be impaired before they excluded the press. After that, predictably in Judge Newman's analysis, "the minimal publicity accompanying these proceedings was primarily generated by the unusual fact of the closure itself." Since many controversial open cases have been decided fairly by local jurors exposed to mind-boggling amounts of publicity, the court found a "strong presumption" that jurors capable of rendering impartial verdicts can be found, even among those who read initial newspaper accounts of a case.
On a second level, the lone dissenter, Judge Frank Q. Nebeker, argued not only that the prosecutor had no legal standing to appeal the lower court's closure but that this newspaper, which filed a supporting brief as a friend of the court, also had no standing. Judge Ferren effectively rebutted his colleague, quoting the touchstone Richmond decision on the obligations of prosecutors to serve "as a representative of the public . . . to protect the societal interest in an open trial."
The D.C. Court of Appeals did good in defending open courtrooms against arbitrary judicial assault.