When a public official closes hearings and seals documents, he or she isn’t slamming the door only on the news media. The official may be tampering with the public’s access to information in violation of the First Amendment to the U.S. Constitution:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Those words by James Madison are often cited as a guarantee for freedom of the press. But, that’s only part of it. While the press is named, a purpose of the First Amendment is to ensure access to information for every man, woman and child in this country. The press provides a delivery system. Anyone who tampers with the public’s right to information should be challenged. A democracy cannot be conducted in secret.
That’s why when Judge William Mudd closed hearings and sealed documents in the David Westerfield trial, attorneys for The San Diego Union-Tribune led the media challenge before the 4th District Court of Appeal. News media go to this effort and expense because of a sense of duty born out of a conviction they are the guardians of the public’s right to information. There should be no secrets in an open trial. Nothing raises a journalist’s antennae more than when a public official be it a judge or an elected representative closes proceedings that should be open. During the Westerfield trial, Mudd closed 23 hearings and, since the trial ended, has kept secret numerous motions as well as transcripts from pre-trial hearings. The secrecy, ostensibly, was in the interest of a fair trial and to keep jurors from being influenced by media reports they were ordered to avoid.
Now that the trial is over and the specter of tainting jury deliberations is in the past, the 4th District has ruled in favor of releasing most information. Mudd has until next Monday to unseal certain documents and transcripts. It is a victory for the people.
“Public officials whether in the courts, city hall or state and federal capitals inevitably drift into incompetence and irresponsibility, or worse, if allowed to go about the public’s business without the press providing a watchful eye on behalf of the people’s right to know, said Paul McMasters, First Amendment ombudsman for the nonpartisan Freedom Forum.
“This is particularly true of our judicial system,” McMasters said. “Justice in secret is not justice at all. Judges and juries do not speak for themselves, or the courts, or the government. They speak for the people. But they cannot speak credibly for the people if they are not accountable to the people. And they cannot be accountable to the people if they do their work behind closed doors.
“Access to the courts for the press is a way of ensuring that a trial is indeed public,” McMasters said. The press is the public’s witness in a court of law. Journalists serve in the citizens’ stead and report back to them so they may pass judgment on the work of the court. It is the constitutional duty of the journalists to observe what the public cannot see and to report what the public cannot know.
“If judges and other public officials fail to recognize the importance of this openness to a democratic society, then all the benefits of democracy are at risk,” McMasters said. “Today, more than ever, Americans live a private life so hectic that they have a hard time keeping up with their public life. Journalists help them do that by providing a window on democracy and justice as they unfold.”
Even if all the information released next week is of no consequence or of little interest to the public, efforts of the news media to open the records will have been well-spent. What would happen if the news media did not challenge officials who try to keep secret those proceedings that should be open?
The day after the jury recommended the death penalty for Westerfield, a front-page story in the Union-Tribune sent shock waves through the community and showed the public’s lack of understanding of a defense attorney’s duty to his client.
The story said that before Danielle van Dam’s remains were found, attorneys for Westerfield were brokering a deal with prosecutors that called for Westerfield to tell police the location of the child’s body in exchange for not seeking the death penalty.
That deal fell apart minutes after the body was found. Readers, incensed that Westerfield’s lawyer defended him against the murder charge, wrote angry letters to the editor excoriating the defense attorney. The newspaper received about 200 letters, an unprecedented response to a single story.
While reporting the debate, the Union-Tribune took the high road and used it as an opportunity to educate readers about the role of a defense attorney. I doubt that some people are any less angry; even so, it was the right thing to do.
Gina Lubrano’s column commenting on the media appears Mondays. It is the policy of The San Diego Union-Tribune to correct all errors. To discuss accuracy or fairness in the news, please write to Gina Lubrano, readers representative, Box 120191, San Diego, CA 92112-0191, or telephone (619) 293-1525. Send e-mail to:
readers.rep@uniontrib.com.
Copyright 2002 Union-Tribune Publishing Co.
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