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Philip Holloway: Justin Ross Harris, suspect in murder, wanted courtroom closed, but First Amendment lets us see governmental actions

He says only in rare cases us closed courtroom warranted; otherwise a trial, under watchful eye of public, is crucial to our justice system

Editor’s Note: Philip Holloway, a CNN legal analyst, is a criminal defense lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association’s criminal law section. Follow him on Twitter: @PhilHollowayEsq Megan W. Grout, who is of counsel to Holloway’s law office, contributed to this article. The opinions expressed in this commentary are theirs.

CNN  — 

My mother used to tell me that sunlight is the best disinfectant. When you shut the doors to a courtroom, you shut out the sunlight that keeps our judicial system clean and honest. Americans should be deeply concerned at any effort to bar the public – which includes the media - from knowing what’s going on inside the courts.

Philip Holloway

This is true even if a defendant himself wants to close the courtroom. Even if he is willing to waive his right to a public trial, he is not automatically entitled to close the doors and keep the public out. Just such a scenario played out this month when Justin Ross Harris, accused of murder, tried to close his courtroom in Cobb County, Georgia.

Harris is charged with intentionally leaving his 22-month-old son in a hot car to die. The defense filed pretrial motions asking the judge to exclude some evidence from the trial. The defense also asked that the public and media be barred from the courtroom during pretrial arguments. It suggested that Harris has already been “condemned” by sensational media coverage. It further argued that if the public were to hear about the evidence it was trying to exclude, the defendant would not be able to get an impartial jury.

At first glance, closing the courtroom might seem reasonable: Many people correctly believe that a citizen’s right to a fair trial is more important than the public’s right to see what goes on in a courtroom.

But displeasure at the defense’s request was swift and vocal. Local and national media outlets, including CNN, objected. An attorney for Atlanta’s largest newspaper, the Journal-Constitution, correctly pointed out that a defendant is not entitled to a jury that knows nothing about a case. After hearing from all sides, the judge noted that much of the evidence in question had already been discussed in the media, and ruled to keep the courtroom open.

So, was the judge carelessly helping to poison the jury pool? No. Should she have automatically granted his request, since it was his trial after all? No. She clearly recognized how important a public trial is to our society. She also recognized that other, less drastic measures could be used to protect the right to a fair trial.

Our Founding Fathers were keenly aware of the secret trials, used and abused by the English monarchy, which provided little protection to the rights of a defendant. Indeed the English Monarchy employed the Star Chamber – a secretive court, frequently used as a political weapon, that examined witnesses and defendants in secret. These political abuses of the English courts were a major influence in the drafting of the Bill Of Rights.

We may be well past the days of fearing secret trials, but we still must remain watchful that we don’t take justice for granted. Open trials aren’t just a way to learn the salacious details of a love affair, or the graphic descriptions of a sexual assault. Our right to observe the judicial process is protected by the First Amendment. We have right to observe governmental actions and criticize them publicly.

Additionally, our observations provide a check on the trial itself. If the government is going to sentence someone to a life in prison, we want to be sure it has done so according to the law. Likewise, a defendant was never guaranteed the right to keep the details of his alleged crime out of the public purview.

The day we dismiss the importance of a public trial is the day we step onto a very slippery slope - away from the liberty we sought to guarantee in the Constitution - and back toward the Star Chamber.

Closing the doors to a courtroom should only occur under extreme circumstances, such as proceedings for juvenile defendants, a child’s testimony about sexual abuse, or an undercover agent who must not be publicly identified. The protection of those individuals outweighs the importance of public trial.. But rulings to close a court outright should be taken seriously and only granted rarely.

Due process is the only thing standing between a presumptively innocent citizen and a government wanting to send them to live in a cage or perhaps to execute them. The watchful eye of the public helps ensure that it is afforded to all.

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