New public access issues arise in Douglas County Court cases months into pandemic
photo by: Mackenzie Clark
More than seven months since the coronavirus pandemic hit the Midwest, new issues continue to emerge and raise questions about public access to Douglas County District Court.
One such issue presents a twist on set precedent: Defendants are entitled to public hearings, but if the alleged victims’ faces are not broadcast on the online livestream during their testimony, is the hearing still public?
In an ongoing child sex crime case, District Court Judge Sally Pokorny recently ruled that yes, it is.
“To require a child to suffer the trauma and humiliation of an internet broadcast of her sexual abuse, is cruel, unnecessary, and potentially traumatizing,” Pokorny wrote in her memorandum decision. “Again, failing to show a child’s face while she is testifying, is not a closure of the courtroom.”
Defense counsel Nicholas David in that case had argued that pointing the camera away from the alleged victim, coupled with limits on in-person attendance due to COVID-19, constituted a closure of the courtroom, therefore violating his client’s Sixth Amendment rights.
The American Civil Liberties Union is still formalizing a position on the issue, said Sharon Brett, senior staff attorney for the ACLU of Kansas, though the organization has weighed in on other public access issues, including those in Douglas County District Court.
“A lot of these issues are sort of new issues in light of courts just beginning to reopen, and some of these issues (are) coming to light for the first time during the epidemic,” Brett said. “And as you can imagine, they’re issues that are not unique to Kansas.”
Will Averill, director of communications for the Willow Domestic Violence Center, also said that organization didn’t yet have an official statement on the issue.
General public access
Not everyone who wants to attend a hearing in Douglas County District Court can waltz in and grab a seat in the courtroom.
Under an administrative order Chief Judge James McCabria issued back in March, only the parties involved in cases, their attorneys, witnesses under subpoena and members of the media can freely attend hearings in person. Any other members of the public, including relatives of those with business at the court, must seek the judge’s permission ahead of time, although there are exceptions for weddings and adoption proceedings.
In lieu of in-person attendance, the court has set up a YouTube page where hearings are livestreamed. Anyone with internet access can view hearings without creating an account or logging in.
“We’ve heard no concerns of a general nature about public access,” McCabria said via email. “I have received a great deal of feedback from people who appreciate having the livestream option to attend.”
However, Brett and Lauren Bonds, legal director of the ACLU of Kansas, wrote in an Oct. 13 letter to McCabria that the administrative order fails to explain how people who want to attend hearings in person should go about contacting division judges, and that the requirement to do so places an undue burden on people who might not even know how to request to attend. It was also unclear what constituted a timely request.
McCabria provided some clarification on those questions.
“Emails are the preferred manner of requesting permission to attend any hearing but they can certainly phone or email the division where the hearing is scheduled to occur,” McCabria wrote. “I would say any request that is submitted a day in advance of the hearing is going to be timely but even if someone wants to request up to the last minute, they should feel free to make the request.”
The court’s YouTube page, launched May 5, had almost 675 subscribers as of Friday.
Pokorny wrote in her recent decision that in the 11 years before the pandemic she had one case that attracted about 60 spectators each day, the maximum seating in the courtroom. YouTube now allows unlimited viewers, she wrote, noting that a hearing in a high-profile murder case had 500 views.
The Kansas Supreme Court’s orders allow district courts to hold in-person hearings with no more than the number of people who can remain socially distanced at least 6 feet apart throughout the courtroom, but that number is still a fraction of the normal seating capacity. Pokorny’s ruling stated that her division could seat about 13 spectators safely. McCabria estimated Friday that the other courtrooms could probably accommodate between roughly eight and 16 spectators.
In their letter, Brett and Bonds had suggested that instead of requiring people to seek permission to attend ahead of time, the court could instead allow a limited number of people in. McCabria said he has been contemplating that suggestion, but it could have a number of complications.
Court security would have to monitor how many people are in each courtroom at a time, rather than each judge keeping track ahead of time for any given hearing, McCabria said.
“I also think it prudent to consider the dynamic that could create at the security station if they are the ones making the decision to turn people away,” he wrote.
In addition, he said the judge is in the best position to know whether any friends or family members may want to attend a given hearing and allocate space accordingly.
“That is, if the ‘general public’ took up space that prevented family from attending in person, I would rather control for the potential impact of such matters ahead of a hearing,” he wrote. “Actually, I would rather not have to attempt to strike a balance between the important rights of a defendant/party and the public as against the health and safety of those same parties, but since that isn’t an option, I want to proceed carefully.”
He said he planned to get input from the other judges in the near future, and he could decide to issue another administrative order.
Alleged sex crime victims
Pokorny, in her memorandum decision, wrote that the courts have given special consideration to the identity of victims in a number of circumstances. Judges may seal or redact affidavits that name victims of sex crimes, and in some cases victims of sexual assaults must be called only by their initials or first name and last initial in documents. Earlier cases have set precedents for when courtrooms can or cannot be closed.
“The need to protect witnesses — including child victims, sexual abuse victims, and those facing gang intimidation or other threats — has been found to satisfy the ‘substantial reason’ and ‘overriding interest’ tests for partial or total closures, respectively,” Pokorny wrote.
Defense attorney David had argued in a motion that although the court “has tried valiantly,” its YouTube broadcast of hearings was not a sufficient substitute for the public attending hearings in person. Citing earlier cases, he wrote that the presence of the public is to ensure a fair trial, to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions, to encourage witnesses to come forward and to discourage perjury. Each of those values requires in-person attendance in the courtroom, he wrote.
Cooper Overstreet, co-counsel on the case, told the Journal-World via email that the defendant in that case has requested that the hearing be continued to a later date when pandemic-related restrictions were no longer in place, but that prosecutors had opposed that request.
“It is true that we are living in unprecedented times, and the health and safety of the general public are increasingly important,” Overstreet wrote. “However, it is equally important that the burden of adjusting to this pandemic not be borne exclusively by and at the expense of the criminally accused in our county.”
That preliminary hearing was set for Thursday but was continued, and a new date has not yet been set.
Prosecutors with the Douglas County district attorney’s office have also asked in some cases that victims or alleged victims be called only by their initials during hearings that are being broadcast on YouTube, or “Jane Doe” in one case.
The Journal-World has viewed two preliminary hearings in sex crime cases via YouTube during the pandemic. In one, the camera showed a wide view of the courtroom, but the view did not include the witness stand.
In the other, prosecutors had filed a motion beforehand requesting that the camera broadcasting the hearing be pointed away from the alleged child victim as she entered, testified and exited the courtroom. Prosecutors wrote that even though it’s not allowed under court rules, there’s no way to prevent people from recording hearings and potentially disseminating those recordings; if the alleged victim’s face wasn’t shown, viewers could still hear her testimony but she would be shielded from potential shame and ridicule. Defense counsel in that case did not oppose the request.
“It really is a case-by-case situation,” McCabria said of how the judges are handling such questions. “Before anyone heard of COVID, Kansas had developed some law that speaks to when a court may close a proceeding or shield a particular witness. The judges will be guided by those principles.”
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