Privacy Bills in the Senate, a First Look: David Balmer for Open Trials

by Eileen | 2:05 pm, January 30, 2013 | Comments Off

WHAT: SB 13-117, Declaring criminal trials and preliminary hearings to be open to public access

WHO: Sen. David Balmer (R-27)

WHY: Because mocking the judiciary is always better in person

OK, actually, on that note, you could end up in jail if you laugh in court.  Were it not for this provision, nothing would ever get done in a courtroom.  It would seem David Balmer concurs with this sentiment as he wants to set it down once and for all that criminal trials are public matters, barring a damn good exception, or, in legislator-speak:

unless a party requests closure and the court finds that closure is necessary to advance a compelling governmental interest, that the order is narrowly tailored to advance that interest, that closure will be effective in protecting the interest, and that the court has considered all reasonable alternatives to exclusion of the public from any portion of the hearing and has found those alternatives inadequate.

Briefly, defendants who don’t want their trial open to the public, lawyers planning on pulling something they’d rather not have scrutinized, and judges afraid the robes make them look fat are going to need to come up with better reasons.

That we even need to hash this out and analyze what current law and precedent says is yet another instance of me being testy and incredulous that we grind out contradictory legalese when we could be balancing the budget, which would more productive, or building sandcastles, which would be more fun.

But, here we are.

The reasoning for a presumed right of access to criminal trials are well established.  We, the public, have a right to see how our many is spent, how our laws are applied, and to get a good look at the lawbreakers.  Officers of the court need the sunlight; it keeps them honest and hard-working while stoking public confidence.  Criminal trials are had for our benefit.  Nothing should stand in our way of keeping an eye on our deputies.

Also well-established are the objections.  Whereas the reason for presumptive access are rooted in the rights of the people and the need for transparency in the system, the objections are come from different angles.

Defendants may not want to be watched and known, perhaps claiming a privacy violation if they are found innocent and were made a spectacle of.  Lawyers on either side may hold that arguing the case before the public will irreparably harm future proceedings in the same matter, prejudice the jury pool in an related trial, or some such.  Exceptionally grisly murders and sex crimes attract voyeurs and can lead to exploitative garbage in the press.  The spectacle of a high profile trial can wrongly reward an attention hungry defendant.

Ultimately, these complaints must either give way to the greater concerns of a sunlit criminal justice system or be narrowly heard on a case-by-case basis.  Which is what Sen. Balmer’s bill seeks.

Following the reasoning in the bill’s text, both the Colorado and United States Supreme Courts have held that criminal proceeding should be open absent a very good reason, something echoed by the American Bar Association.  According to Balmer, the confusion evinced by trial judges in closing proceedings owes to a bit on nonsensical doublespeak in how criminal trial records are classified for purposes of record keeping and, thus, for public inspection.  On that count, he wants the classification clarified.  If you’re charitable, it’s to help judges and clerks who can’t tell ass from elbow.  If you are like me and reflexively distrust lawyers, politicians, and bureaucrats, this would remove a convenient excuse to thwart open government.

And I posit that you will never go wrong if your default position is to assume the worst of government workers.

It shouldn’t require a legislative action but if that’s what it takes to have default public access to criminal trials and the proceedings thereof, then so be it.

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