July 26, 1979

Secret Court Hearings Threaten Constitution

It has been a shoot-out at OK Corral between the Supreme Court and the American press in recent years with casualties about even on both sides.

In the most recent volley, however, a wild shot has gravely wounded a public bystander - you.

Our highest tribunal now has ruled that reporters can be barred from pre-trial hearings where accused citizens first answer to charges of lawbreaking.

The sixth Amendment requiring a speedy and public trial, says the court, doest not extend - to pre-trial hearings.  The citizen at bar, therefore may request secret proceedings without violating the First Amendment of free press.

The right of privacy certainly is a valuable guarantee of Americans.  It is invoked more often today against the press than libel.  The courts grant relief more readily for alleged abuse of personal privacy than for published slander.

The most recent interpretation of constitutional right appears on casual examination to satisfy individual privilege.  I submit, however, that it may be a fatal show to the body politic.

My colleagues have overreacted to newly proclaimed dictums - that police with warrants may search news rooms, and that a reporter can be ordered to reveal what went on in his mind while writing a controversial story.

A land-mark decision (King v.  Root, 1903) upheld by the Supreme Court spelled out the extent of free speech due the press:

"It is no new claim that newspapers have a greater privilege than the ordinary citizen.  This is a grave error.  It has been urged upon you that conductors of the public press are entitled to peculiar indulgences, and have special rights, privileges or claims to indulgence.  They have no rights but such as are common to all.  They have just the same rights that the rest of the community have, and no more."

Thus, search warrants to which an ordinary citizen must submit apply equally to journalists.

There have been many times when I wished for the assistance of a search warrant to find old notes.  Scribbles that accumulate in a newspaper office are quicksands that swallow up the most purposeful of searchers.  Really important notes end up at home in the pocket of last winter's overcoat.

It would be fun to watch police - with or without a warrant - wade through the bottom drawers of news desks.  A search for the Lost Dutchman gold mine would be more fruitful.

As for attempting to dredge up a reporter's thoughts as he pounds his typewriter, this is even more laughable.  Since no one can climb into another's skull, knowledge of a person's thought processes is dependent wholly on the voluntary revelations of that person.  To escape contempt of court, a journalist witness has only to assert he was thinking about his sainted mother, apple pie and Old Glory while exposing a miscreant.

In matters relating to operation of the U.S. legal system, the press is rightfully concerned about the trend of police and courts to "en camera" (in the dark).

Names of persons arrested by police now are denied in many cities on the grounds of personal privacy.

Secret pre-trial hearings compound the evil.

While limiting the press to specific constitutional boundaries, the courts also have gone to great lengths to commend the role of newspapers in the judicial process.

Editors are frequently pressured to "keep my name out of the paper" by people who dread publicity more than fines or prison.

The founding Fathers were careful to free the press from official restraint so that it could monitor the power of the state to punish.  Secret arrests, trials and imprisonment had been commonplace.  Citizens often were snatched from normal pursuits and executed without a word of explanation.  Property was confiscated at the whim of corrupt authority.

These conditions still prevail in many countries of the world.  Some peoples who once enjoyed liberty again suffer oppression - those of East Germany, Czechoslovakia, Poland and Hungary being but a few examples.

Any back-sliding in the United States must be resisted by an aroused public opinion and by lawful statute.

An open police blotter prevents citizens from being held illegally, or on trumped-up charges.  Jailings should not be used to harass a critic or obtain false testimony.

Most particularly, the courts cannot be a party to Star Chamber justice.  Approximately 90 percent of all felonies are decided by a judge at a pre-trial hearing.  The purpose is to determine whether the complaint is sufficiently valid to justify trial.

In many instances, charges are dismissed for lack of evidence, upholding the tradition of "innocent until proven guilty."

In a growing number of cases, offenders bargain in the hearing for a lesser plea-of guilty- - in effect conspiring with judges and lawyers to cheat justice.

Innocent citizens sometimes desire secrecy in order to avoid embarrassing disclosures in the press.  Yet, these have the greatest stake in an open hearing.  Their vindication enters the public print to countervail earlier unfavorable notices.

Guilty citizens desire secrecy in order to hide their offenses and cop pleas.

Either way, liberty is served only by public gaze.

The great justice, Oliver Wendell Holmes, said it best: "It is desirable that the trial of causes should take place under the public eye - not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility.  Every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed."

Author: Lindsey Williams