THE WAVE of secret judicial proceedings that was set off by the Supreme Court's endorsement last summer has finally reached the District of Columbia. Two Superior Court judges closed their courtrooms recently while considering whether a rape suspect should be held in preventive detention pending his trial. Their rational was that publicity about what happened in those courtrooms might prejudice the suspect's right to a fair trial.
Their actions, however, had precisely the opposite effect from what they intended. The publicity generated by the secrecy gave the facts of the case and the criminal record of the suspect far wider dissemination than they would have got otherwise. Only after the secrecy argument arose did the case become front-page news.
That is something the Supreme Court failed to understand when it decided that some judicial proceedings can be held in secret. People tend to be more curious about information someone is trying to hide than that which is readily available. A closed courtroom may curtail publicity about a sensational case -- the kind the court seemed worried about -- but it is likely to increase the publicity surrounding a routine case. (The case in which the local courtrooms were closed was originally of interest not because the crime was sensational -- it wasn't -- but because of an argument over the standards to be used by judges in jailing suspects.)
The reaction of the Superior Court judges to the suspect's request for secrecy, however, suggests that secret proceedings are to become the rule, not the exception that the Supreme Court foresaw last summer. Judge David L. Norman, for example, said he intended to close the hearing "unless the government can show a compelling reason for it to be open." That doesn't come even close to squaring with the Supreme Court's words that although a "defendant can, under some circumstances, waive his constitutional right to a public trial." Judge Norman's attitude demonstrates that it is far easier for a trial judge to say yes than no to secrecy -- and run the risk an appellate judge will reverse him.
The judge who now tries this rape case has an exquisite problem. Some, perhaps much, of the information Judge Norman said was so sensitive that its dissemination might prejudice a fair trial has now been disseminated. Does that mean the trial has been contaminated? Or does it mean the courts will trust jurors -- as has been the practice for two centuries -- to decide the case on the basis of what is heard at the trial? They should.