David Boeri, The Daily Record Newswire
Two important elements were missing on Monday, April 22, during the secret federal court proceeding in a hospital room where alleged terrorist Dzhokhar Tsarnaev was informed of the charges against him and the penalties he faces.
The first missing element was the public, or any representative of the public in the form of a news reporter.
As a result, the second missing element was transparency itself, which has always been the strength of our justice system.
After hearing the president vow that “[w]e will find out who did this and we will hold them accountable,” one would think that the Department of Justice would be unafraid to allow someone to witness the first step of bringing the suspect to account in an open and fair process.
Were this a state matter, the principle would be clear.
According to the Supreme Judicial Court, if the defendant is in a hospital, all the rules of the courtroom apply. Hearings have to be open “unless there are compelling reasons and there is no way to keep at least part of the hearing open,” says Bingham McCutchen’s Jonathan Albano, who regularly represents The Boston Globe.
Given the challenges posed by the defendant’s medical condition, the need to conduct the hearing in a hospital room, and the need for security and safety, state courts have a long and successful history of accommodating those interests while recognizing and respecting the need for openness.
Typically, state judges have allowed the presence of a reporter, photographer and videographer to represent the public on the condition that they share their work with the rest of the media.
Furthermore, both the SJC and the Supreme Court have held that closing a hearing can be done only after specific findings of fact.
Says Albano: “Strictly speaking, there should have been a hearing on whether to have a closed hearing. Rules guaranteeing public attendance at criminal proceedings weren’t followed here.”
In the case of Tsarnaev, there was no public notification of a hearing beforehand. Only afterward did U.S. Attorney General Eric Holder issue a press release — with a copy of the criminal complaint attached — stating that Tsarnaev had been charged with using a weapon of mass destruction against persons and property at the Boston Marathon. One sentence in the two-page document noted: “Tsarnaev had his initial court appearance today from his hospital room.”
And although the press release contained quotes from Holder, U.S. Attorney Carmen Ortiz and the FBI’s Boston Division Special Agent in Charge Richard DesLauriers, they were not available to answer questions.
A short time later, the transcript of that court appearance was available for purchase from the court reporter for $42.
But in order to otherwise get it, a member of the public would have had to know about PACER, and would have had to find the case and who the court reporter was and then locate him (he didn’t return my call) and pay the fee.
But make no mistake; having the transcript of the hearing is not the same thing as being present or having a report of the hearing. How did the defendant sound? How did he look? How did he react when informed of the charges and the fact that he could be punished by death? Who was present? What was the tone of the defense attorneys and the prosecutors?
There was nothing in the content that could be said to reveal state secrets. It was indeed straightforward. And it was deliberately conducted without the public present, even in the form of a representative.
Would a crowd of reporters and TV news trucks have surged outside the hospital at word of an imminent court hearing? Might there have been an inconvenient increase in phone calls from reporters to authorities? Or a need for more security? Would the process of selecting a pool reporter have been messy?
Perhaps. One can understand the concerns.
Yet, none of them outweigh the need for transparency, without which the court system cannot sustain public trust and confidence. Credibility is especially important to the government in light of the disclosure that information on the older Tsarnaev brother provided by Russian authorities was not followed up on.
Furthermore, as the government should have learned, when the public provided a treasure chest of photographs and videos to help identify the suspects, enlisting the public is essential if it is to do its job well. Transparency in the courts invites public participation.
In any event, the DOJ easily could have designated a reporter who commanded respect from her peers in the media and who had already asked to be considered the pool reporter.
One reporter in the hospital room would have been all it took to meet a fundamental principle. A lot of us are small people. Lawrence wouldn’t have taken up a lot of space. Given federal rules barring cameras and microphones in the courtroom, there would have been no need to accommodate either a photographer or a videographer.
The failure of Holder and Ortiz to recognize that principle and their decision to keep the event secret is at best a missed opportunity to do what the president urged us to do two days after the bombing, which was to stand tall.
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David Boeri is a senior reporter at WBUR who covers the courts and legal issues.
