Pre-trial information release serves the public, protects the accused

Aug 16, 2012

Inside the First Amendment
By Gene Policinski    
First Amendment Center
When courts withhold public access to certain police or other records before trials – particularly high-profile ones – the reasoning generally reflects a desire to preserve the suspect’s right to a fair trial.

No quarrel here with a fair trial. But there’s an underlying assumption in such judicial decisions that doesn’t recognize what the nation’s Founders knew all too well: Transparency in court proceedings also serves to protect the rights of the accused and of the public.

There’s where the First Amendment rub occurs with decisions to keep such records closed.

The issue comes to mind with the Aug. 15 ruling by the judge in the Colorado theater shooting to keep secret some documents, including the arrest affidavit documenting specific charges, during the pre-trial period for suspect James Holmes.

Holmes was arrested July 20, minutes after a midnight shooting spree in Aurora, Colo., that left 12 people killed and 58 wounded.  Police have said that in addition to the weapons Holmes was carrying when arrested, they found other guns and explosives in his apartment.

Arapahoe County District Judge William Sylvester agreed to release some routine documents and initial pleadings, in response to a petition by 21 news outlets, as well as a list of other documents filed. But a range of other records, including the key affidavits, will not be disclosed before trial. We don’t know whether they’ll be referred to during trial.

Why might it be important for such documents to be made public before trial?

Because although most Americans rightly assume the justice system has only the highest motives, public officials may not always live up to those standards. In a case like this, there is usually pressure for a quick arrest, a desire to assure local residents that the danger has passed – and, as in this instance, to assure the nation that no terrorist threat was involved.

Those pressures and more are not new. In the so-called “Atlanta child murders” more than 30 years ago, Wayne Williams was convicted of multiple slayings and a city was assured that a predatory monster was behind bars. But critics complained that the investigation was flawed and ended too soon with Williams’ arrest, that it ignored a range of older victims killed in similar circumstances, and that Williams must have had accomplices – but no one else was charged. In other cases, particularly in police shootings involving minorities, lingering suspicions about motives or bias are not the concern of trial judges or attorneys, but need to be addressed in the court of public opinion.

When the Bill of Rights was adopted in 1791, the requirements for public trials and proper procedure were not just legal niceties. England’s “Star Chamber” court (abolished 1641), with its secret trials and arbitrary justice in defense of the Crown, was little more than a century past. The Sixth Amendment is full of rights to ensure fair trials.

Yes, it may be more difficult to impanel an impartial jury with a well-informed public – but it is also more difficult to create a defendant-of-convenience, or to hide political motives or to cover up investigatory gaffes.

There’s more than morbid curiosity or commercial gain behind news media requests for full disclosure – there’s the watchdog role that the First Amendment requires of a free press. In our social-media society, closing records and ordering participants not to speak openly doesn’t protect the facts, it just encourages wider speculation.

And for defendants such as Holmes – in cases where conviction would seem assured – that watchdog role should serve to ensure no corners cut, no assumptions made. Then the public’s needs are served in a rigorous system that requires the state to prove its case.

Full disclosure of information should not be a shortcut to an assumption of guilt. Rather, it should mean both public confidence in the court proceedings and another layer of protection for the accused.

Gene Policinski is senior vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn., 37212. Web: E-mail: