IN HANOVER COUNTY, Va., last fall, Judge Richard H. C. Taylor conducted a murder trial in secret. It was necessary to keep the public and the press from the courtroom, he said, to protect the defendant's right to a fair hearing. An astonishing performance and one with scant legal justification, but Judge Taylor seems about to get away with it.
Recently, when the Richmond papers appealed the secrecy order, two members of the Virginia Supreme Court suggested at a hearing that since the trial has long been over the issue is moot. "Here it would be gratuitous advice to [Judge Taylor] as to what he should do in the future," one said, adding "should we do that, should we give that sort of advisory opinion?"
The answer is yes. The issue is too important to be left to the precedent set by Judge Taylor's action. Other courts, including the U.S. Supreme Court, have found ways to consider judicial orders that, like this one, are not reviewable under normal procedure. Unless the Virginia court finds the flexibility needed to do the same, trial judges througout the state will be able to close their courtrooms any time they are so inclined.
For two centuries, secret judicial proceedings were almost unknown in this country. Now a rash of such proceedings has occured. They began immediately after the U.S. Supreme Court said that secrecy was permissible in some situations. The number seems to be growing. First came secret pretrial hearings in New York and Pennsylvania, then a secret murder trial in Virginia. The process will not not end until appellate courts face up to the dangerous situtation that has been created. Idealy, they should forbid all secret criminal proceedings; logic and history support such a course. At a less ideal minimum, they should severely limit such proceedings so that trial judges are not free to open and close their courts as they please.