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.

Posted by Dave Hejmanowski on Mar 23 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.