Transparency issues often focus on elected bodies and whether they follow law governing public meetings, or executive agencies and whether they comply with statutes like N.M.’s Inspection of Public Records Act.
Important questions, to be sure. But a judicial system that is open and accessible to the public is every bit as important, or perhaps more so, when we consider its role in a functioning democracy. It is the courts, after all, that arbitrate disputes on access issues involving other branches of government. It is the courts and jury system that resolve civil disputes and ultimately decide whether criminal conduct merits the deprivation of liberty.
Chief Justice Michael Vigil of the N.M. Supreme Court shared his thoughts on this: “New Mexico courts recognize the critical importance of allowing the public to see and hear for themselves how our justice system fairly and impartially resolves legal disputes. Without that transparency and access, we risk an erosion of public confidence in the rule of law and trust in our independent judicial branch of government. Our democracy depends on maintaining that public confidence and trust.”
Given the openness of N.M.’s court system, which as far back as the 1980s had the foresight to allow photography and televising of court proceedings, it would be easy to take for granted the judicial system has always operated in this fashion. And that would be wrong.
“Star chamber” remains part of our current day lexicon and refers pejoratively to any secret or closed meeting by a judicial or executive body. Rooted in English history, the Star Chamber was well-intended but came to abuse its powers, using torture to obtain confessions and meting out sentences that included whipping, pillory, prison and mutilation, according to the First Amendment Encyclopedia. Jurors were sometimes punished for finding verdicts against the Crown, and King Charles I used the Star Chamber to crush opposition to his policies.
It’s not beyond the pale to image some politicians, if given free rein, would find this a useful tool.
The Star Chamber was abolished by Parliament in 1641, and historically many court proceedings in this country were open. But it wasn’t until 1980 in a case called Richmond Newspapers Inc. v. Virginia that the U.S. Supreme Court ruled the First Amendment generally prohibits closing criminal trial proceedings to the public. The underlying case was a high-profile murder prosecution, and the court’s plurality opinion noted, correctly, that secrecy… “limits the stock of information from which members of the public may draw.”
The right for the public to attend isn’t absolute, but to close a criminal case courts must exhaust all reasonable alternatives and make specific findings why closure is necessary. We just witnessed how the justice system works with the Derek Chauvin prosecution in Minneapolis. Imagine how damaging it would have been to the system had this been done in secret. The U.S. Supreme Court would be well-served to adopt the same procedures in the federal system to allow photography and broadcasting.
This guest column is part of FOG’s Transparency: Key to Democracy Project. Accountability ensures government is held responsible to the citizenry; transparency gives the public the right to access government information and requires decisions and actions made by the government to be open to public scrutiny and occur in the light.
