When the Courts Turn Restrictive, Justice Suffers

Trial judges in Los Angeles and across the state drew one clear lesson from the crowd of journalists, spectators and vendors that gathered daily outside the Criminal Courts Building last year during the criminal trial of O.J. Simpson: Judges who grant broad public access to trials in their courtrooms do so at their peril. Los Angeles Superior Court Judge Lance Ito, who presided over Simpson’s trial on double murder charges, was sharply criticized in some quarters for having permitted live television coverage of the proceedings and, by extension, for allowing the carnival-like atmosphere to develop on the courthouse steps.

Indeed, since Simpson’s acquittal last October, many judges fearing criticism in high-profile cases have clamped down on public access and press coverage to an unprecedented degree. Trial judges have granted almost no petitions for TV coverage, and the state bar, under direction from the Legislature, promulgated a new rule that imposes severe new restrictions on what lawyers in every case may say outside the courtroom. Last July, the state Judicial Council, led by state Supreme Court Justice Ronald George, set forth another new rule that further limits television coverage of trials.

But even against this backdrop, the efforts of Superior Court Judge David M. Schacter to exclude the public and media from the ongoing palimony trial involving movie actors Clint Eastwood and Sondra Locke are astonishing in their breadth. Schacter excluded the public and media from all court proceedings held outside the jury’s presence. Tuesday, a state appellate court decisively overturned those restrictions not simply as a danger to free speech but, more important, as a threat to the public at large. Citing precedents extending back to the English common law and incorporated in the U.S. Constitution, the appellate court flatly stated that the “closure order . . . is inconsistent with the 1st Amendment.” Quoting a 1984 U.S. Supreme Court opinion, the appellate court reminds all trial judges that “The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed.” And that applies whether it is a celebrity palimony case or a major felony or a routine civil action.

Judge Hiroshi Fujisaki, presiding in Simpson’s civil trial, indicated his interest in imposing a similarly extreme order limiting public access to proceedings outside the presence of the jury. Tuesday’s appellate decision is the clearest possible statement on the danger and folly of proceeding in that direction. That ruling eloquently reminds us, as well as Judge Fujisaki, that an open judicial system is indispensable to a democracy.