A right to know?
“Democracies die behind closed doors. The First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully, and accurately.”
— Judge Damon Keith
6th Circuit Court of Appeals
“A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps, both.”
— James Madison
Openness is a foundational cornerstone of representative government. Transparency leads to greater understanding, deters corruption and improves efficiency. But nowhere is the lack of transparency more prevalent than in the administration of justice.
Police and prosecutor investigatory files cannot be obtained by newspaper and television reporters. Courts put gag orders on lawyers in cases. Even the U.S. Supreme Court has a rule preventing television cameras from recording its proceedings. This is particularly true when it comes to proceedings in juvenile and family courts, and this has been brought to fore recently by the case of T.J. Lane, charged with murder for the killing of three Chardon High School students.
When I began the practice of law in Ohio in 1999 I was surprised at the aura of secrecy that surrounded juvenile court proceedings. At that time, court documents were covered by the general public record rules that applied to all government documents. Those rules provide that government documents are open to the public unless specific exemptions apply.
Despite that, most of the state’s juvenile courts refused to allow members of the general public into juvenile hearings and refused to give out copies of documents contained in juvenile files. The law did not necessarily match the practice, but the practice was not without good reason. Juvenile courts understood then, as they do now, that the rehabilitation of juveniles for minor offenses will be significantly derailed if those teen or pre-teen offenses were to follow juveniles indefinitely. Many a successful adult has an imperfection in their youth.
I used to go to meetings and conferences of juvenile court employees and argue that under Ohio law both juvenile hearings and juvenile records were open to the public. Two things have since made that argument moot. First, the Ohio Supreme Court provided a clear set of guidelines by which juvenile courts should decide whether to allow the public into a juvenile hearing or to close that hearing. Second, and more important, the Supreme Court decided that the judicial system would no longer be governed by the general public record rules that apply to the legislative and executive branches of government and set a different and more specific set of rules for courts to apply.
All of which brings us back to T.J. Lane, the teenager charged with murder in Geauga County. Both the openness of hearings and the availability of records have become major issues in Lane’s case.
Several media outlets decided to stream Lane’s initial court appearance over the web. Always curious to see how other courts conduct their hearings, I watched the proceeding live. It started a bit late and so for several minutes the web broadcast showed people milling about the courtroom. Shortly before the hearing was to begin, several court employees, prosecutor’s employees and family members of Lane came to take their seats in the courtroom. Perhaps unaware of who they were, the cameraman for the television station came from around behind the camera and began to rearrange people– to literally move people from their normal places in the courtroom because where they were supposed to sit might just block the camera’s view of the alleged shooter.
I have no doubt that Judge Tim Grendell of the Geauga County Juvenile Court would not have allowed that had he been in the room at the time. In fact, when Grendell entered the courtroom and began the hearing, the first thing he did was order that the cameras not show Lane’s face. Print, television and web media sources are familiar with court proceedings, however. Knowing that one of the factors that goes into deciding whether to allow cameras is whether the juvenile’s image has already been in the media, the AP and several local Cleveland media outlets immediately published images of Lane that they had captured prior to the Judge’s order.
Judge Grendell originally ruled that he would not release any records of prior court involvement that Lane might have had, a move that The Cleveland Plain Dealer and Cleveland television stations said they would fight. He eventually released records of a prior assault charge and a traffic case but denied access to children’s services records. Among local media outlets, the Gazette and The Columbus Dispatch have generally been very careful about their handling of the identities of juveniles.
The prosecution of T.J. Lane will undoubtedly become more transparent once his case is transferred to adult court. In the meantime, his juvenile court proceedings have served as a prime example of the tension between openness and secrecy in juvenile court proceedings and the manner in which the parties involved work to get the ultimate outcome that they want.
David Hejmanowski is a magistrate and court administrator at the Delaware County Juvenile Court and a former assistant prosecuting attorney.