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Desert Rattling: Thank you, Judge Swift!

Posted: Saturday, May 11th, 2013

Whenever I sit down to write these columns, I try to shy away from any subject that I might cover in my official duties as a reporter.

I’ve learned from past experiences that anything I say on the opinion page can open me up to accusations of bias. But after my recent troubles at the Costilla County Courthouse in San Luis, I felt that it was important to speak my mind, if only to ensure that no one else in the Valley is turned away from public proceedings.

In case you missed my last column, here’s what happened: on April 24, I attempted to sit in on the jury selection process at the trial of a man charged with felony menacing. But as I approached the metal detector, a security officer blocked my path and informed me that the presiding judge had closed the process to the public.

I stammered in protest, fully aware of the First and Sixth Amendments, as well as the related U.S Supreme Court rulings that uphold our constitutional rights. But the employee stuck to his claim that no one from the public was allowed into the courtroom for the time being.

In my previous column, I voiced hope that this individual simply misheard or misunderstood the judge’s orders, and that turned out to be the case.

What a relief.

I’m also happy to hear that Chief Judge Pattie Swift is taking steps to ensure that the 12th Judicial District’s security personnel understand the laws and rulings that govern public access to our courts. If any of them make similar mistakes in the future, I hope that they will be held accountable for their actions.

I understand that there are rare instances when the court can exclude the public from certain proceedings. But this was not one of them.

In this case, the employee’s actions were not just an affront to my rights as a citizen.

They affected everyone else in the building.

First and foremost, they could have jeopardized defendant Gene Martinez’s Sixth Amendment right to a public trial. They could have simultaneously derailed the district attorney’s case, since appeals courts elsewhere have overturned the convictions of defendants in cases where the voir dire process was closed to the public.

By speaking and acting in the name of the court, this employee also cast the presiding judge in a negative light, even though the court had no knowledge of his deeds.

I apologize for conflating the security officer’s mistaken interpretation of the judge’s orders with the court’s actual ruling. Based on the man’s statements, it seemed reasonable to assume that he was speaking on behalf of the court.

In my defense, nothing like this had ever happened to me in the course of my career, which is now approaching the 13-year mark. But according to David Cuillier, an associate professor of journalism at the University of Arizona, my experience is far from unique.

“Unfortunately, this is all too common,” he said in an email message. “I suspect it is usually because court employees just don’t understand the law very well (ironically) and tend to wing it.”

Just a day or so before I contacted him, Professor Cuillier heard from a neighbor who called his local courthouse to ask about a particular sentencing. The courthouse employee who answered the phone mistakenly told the caller that the information he requested was private.

Ultimately, the man was able to review the information he was seeking, but he never could figure out why the employee would say something so off base.

“I figure it was a case of winging it,” Cuillier said.

On the other end of the country, a Pennsylvania court denied a reporter access to the voir dire process during the Scott Ritter trial. The former United Nations weapons inspector was later convicted of sexual solicitation-related charges.

In that case, the court administrator confidently asserted that the court had the right to keep the Pocono Record away from the proceedings.

That same administrator later assured the newspaper’s readers that judges will make every attempt within reason to accommodate the public, chalking her earlier decision up to a “misunderstanding of procedure.”

There are other instances where judges or court employees have tried to limit public access.

However, in the three years since the U.S. Supreme Court issued its ruling in Presley v. Georgia, it’s growing harder for them to get away with it.

The landmark case involved a convicted cocaine trafficker who appealed the jury’s verdict on the grounds that the court improperly excluded his uncle during voir dire. The Supreme Court ruled that a defendant’s Sixth Amendment right to a public trial extends to the jury-screening process.

Since that ruling, more and more courts are taking notice of the law.

For instance, when a Ventura County Star reporter in California wrote that he’d been excluded twice in the course of a three-month period, a judge in that jurisdiction assured him that it wouldn’t happen again.

Courts elsewhere have a good reason to ensure that it doesn’t happen in their jurisdictions. Most seasoned observers, including the late Chief Supreme Court Justice Warren Burger, would tell you that experiences like mine do undermine the public’s confidence in the judicial system.

I applaud Judge Swift for working to address the issue, and like her, I would encourage my fellow citizens to drop by any courtroom in the district and observe the process at work.

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