1:13 a.m. EDT October 3, 2015
America is exceptional, in large part because of our Constitution.
On just four short pages, our Founders established the primacy of the rule of law, especially the right to public criminal trials and free press.
These are rights that are deeply rooted in our legal system and our national identity. One need only look at any dictatorship around the globe to know that the Founders got it right.
The Charles Tan trial is hardly the first time that the public’s presumptive right of access to criminal trials has been put in tension with a judge’s obligation to ensure a defendant’s unqualified right to a fair trial. Our Supreme Court has given clear guidance for how such tensions are to be resolved.
The Supreme Court holds that the public (as represented by the press) may only be excluded from criminal trials in extreme situations, after a showing of a “compelling” state interest and that alternatives to closure do not exist. Translation: If a criminal jury is seeing it, then the public, as represented by the press, is rarely excluded from seeing it too.
The inspection of the Tan home was an integral part of the trial. Everyone agrees it was not an “extreme situation” since such viewings are specifically contemplated by statute. But everyone recognizes that the inspection was no ordinary day in court.
So what is a judge to do about public access to such a viewing? First, determine whether there has been a showing of a compelling state interest in closing the viewing. Second, assess whether there are less drastic measures to total closure. A judge who does so publicly has met her obligation under law and will not be criticized.
Reporters covering the Tan trial say this process was not followed, and certainly not in public. We will never know whether the judge identified a compelling state interest or considered alternatives to closure. Thus, competing interests remain in tension where, had they been addressed directly and publicly, those tensions would have been resolved, no matter the decision.
Judging ain’t easy and the Founders did not intend it to be. By all accounts, the judge here is doing a great job. Nevertheless, our Founders insisted we have access to criminal trials and insisted the press scrutinize those trials, including the judges who preside over them. Having this public dispute makes our democracy stronger and our system of justice even more robust.
Chris Thomas is a partner with Nixon Peabody LLP. His clients include the Democrat and Chronicle.
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