A recent Harvard poll shows that nearly half of American young adults lack confidence in the nation's justice system. But my experience as a Baltimore City public defender of 11 years tells me that it's not just the young who are questioning our courts. The distrust can be attributed, in part, to a lack of openness within the system. We must work toward equal justice for everyone by making courts less secretive and more accommodating so that citizens will start to believe that everyone can get a fair shake.
Here are three ways to improve openness: First, courts should aim to stop limiting case information from reaching the community. Second, they should create a more visible grand jury process so this initial phase of a prosecution can be understood by outsiders. And third, courts should create an evaluation process or accountability method for judges.
To begin, look to the trial of the officers charged in Freddie Gray's death. The court's decision to limit public access to trial information from jurors contradicts the spirit of an open, "public trial" embedded in the Fifth Amendment. After the hung jury and mistrial ruling in the trial of Baltimore Officer William Porter, the judge ordered jurors not to talk to the press to protect fellow jurors' privacy and security. The order stripped 12 individuals of their First Amendment rights to speak out about their experiences to the rest of the community.
Moreover, it prevented the press and public from accessing the jurors' unique impressions. Without cameras present in Maryland courtrooms for live coverage, juror post-trial commentary is invaluable. Since the "non-verdict," we have come to learn that a juror ignored the court's directive and spoke with Baltimore Sun reporters. That juror revealed a lopsided tally from deliberations favoring "not guilty" and suggesting that the state's next cases may be in jeopardy. The community has the right to know this information — especially with the potential ramifications of this particular trial.
Additionally, facilitating conversations between lawyers and jurors after trials make the system more open. The interaction between jurors and attorneys forges a bond that connects lay people with an often insular legal community through dialogue. Lawyers (and judges) can explain why objections were made and why certain issues or facts were not a part of a trial. People want to know and understand. Privacy might be lost with openness, but trust is gained.
Another way of improving court transparency is to illuminate the workings of grand jury proceedings. Generally, Maryland grand juries are groups of citizens numbering up to 23 people who decide if there is "probable cause" (enough evidence) presented by prosecutors to allow a criminal case to proceed to the trial phase. However, only the state can present evidence to the grand jury in what amounts to a private "mini-hearing." This is usually done by having a police officer read an arrest report verbatim to the jurors (and the officer may not be the report's author).
Basically, the state is in complete control behind closed doors. So, in a case like the one involving the officer who shot young Tamir Rice in Cleveland, where a video shows obvious evidence in favor of indictment, the public will never be able to understand why a grand jury did not believe the case should go forward. So why not record the proceeding? If preserving an investigation is an issue, make transcripts of what occurred available afterward.
Essentially, the prosecution controls what is put forth, and can hold back or spin evidence during its presentation to the grand jury for or against indictment. No advocate for a defendant can attend, and there is no automatic right for defense attorneys to attain the transcripts of testimony afterward. With measures like these in place, it is no wonder that people are left with a bad taste in their mouths when grand juries do not indict in the face of clear evidence.
Last, we have no way to "judge" our judges and hold them accountable — short of elections. Maryland has no cameras in criminal courtrooms for live feeds of proceedings, but it does allow recordings of such to be ordered afterward. There is no official process for courtroom observers, monitors or evaluators of any kind to report on judges. Attorneys who complain about judges to state commissions can be ostracized, risk losing their jobs or subjected to unfavorable treatment in the courts. Judges are almost never removed from office. So, when a judge makes a bad (illegal) ruling, mistreats an attorney or abuses their power, what can be done? Citizens start to think the entire system is rigged due to one judge's actions because they have no recourse. While a party can appeal a ruling, and a higher court may overturn a decision, rarely does anything ever happen to a judge for a bad decision beyond a loss of pride. Lawyers, in contrast, can be charged with malpractice and risk losing their license for improperly representing a client or for abusive prosecution. Judges come off as untouchable. Granted, jurists should be given some latitude for error because of the difficult and quick decisions they must make on certain rulings, but there has to be a procedure on which to more effectively challenge incompetence and misconduct from the bench.
People need to perceive equal justice so that they feel confident in the legal system again. Beyond substantive reform, simply creating a more transparent and open process would go a million miles toward this end. The justice system should think of it as a mandatory customer service makeover.
Todd Oppenheim is a is a Baltimore City public defender and a candidate for Circuit Court judge. His email is firstname.lastname@example.org.