What’s Behind Georgia Courts’ Open Door Policy

By: Judge Todd Markle
With images from courtroom sketch artists on the evening news in mind, many laypersons must be surprised when they discover the prevalence of television cameras and other media in and around Georgia courtrooms. 

Unsuspecting jurors summoned to the courthouse no doubt are concerned about maintaining their privacy and anonymity.  Many likely assume publicity hungry lawyers and judges encourage such intrusions.  The reason instead is that Georgia has embraced a policy of openness and transparency in all branches of government, including the judiciary.  
Judges are thus bound to ensure that most court proceedings are open both physically and virtually to members of the public.  The federal constitution provides criminal defendants with a right to a fair trial.
As interpreted over the years by the Supreme Court, a public trial helps ensure the proceedings are fair and that the individual rights of the accused are protected.  Moreover, the Court has held that the freedoms of speech and press protected by the First Amendment entitle the public to a right to be present at trials.
 Although there may still be instances where the closure of courtrooms does not violate the federal constitution, the Court has observed that such occasions are exceedingly rare.
According to Georgia’s Supreme Court, our state constitution provides still more protections when it comes to the guarantees of a fair and public trial.  This is so because the Georgia Constitution has its own Bill of Rights which contains the proviso that defendants shall have a right to a public trial.  This provision has been interpreted to mean that all facets of the proceeding must be open to the press and public.  As a result, Georgia judges have even less discretion than their federal counterparts when it comes to closing courtrooms.  
There are many competing interests that Georgia judges must balance in order to protect the rights of the press, public and parties.  Importantly, these interests have to be considered by the judge even where the parties to the dispute at hand agree to closure.  To deal with these concerns, the trial judge must consider and craft appropriate alternatives to merely closing the courtroom and excluding the press.  This can understandably be difficult as modern trials routinely involve security risks, trade secrets, sensational publicity, and privacy concerns, not to mention practical problems like courtroom overcrowding.  Yet, it is incumbent that judges consider potential alternatives such as a change in venue or sequestration of the jury.

In dealing with the media, a judge will often limit the number of television cameras or restrict filming to a particular location so that the identities of jurors are not disclosed and distractions are minimized.  While it would certainly be easier to close the courtroom and bar the public, this is unacceptable in a free society.
As Georgia’s Supreme Court has observed, our state constitution “commands that open hearings are the nearly absolute rule and closed hearings the very rarest of exceptions.”  In fact, a failure on the part of a trial judge to provide an open and public courtroom can jeopardize the validity of the proceedings.  
Courtrooms have long attracted curious observers of trials and other legal proceedings and will continue to do so.  Were the judicial branch to operate behind closed doors, it would risk jeopardizing public trust.   Open courtrooms help ensure that the judiciary, like other branches of government, fulfills its constitutional obligations.  What takes place in our courtrooms should be open to public view.   
Markle is a judge on the Superior Court of Fulton County. Prior to his appointment to the bench, he served as executive counsel to Gov. Nathan Deal. Judge Markle chaired the Criminal Justice Reform Council in 2011.  This article was originally published in the Atlanta Business Chronicle.


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