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Was it legal for the judge trying Silent Sam protesters to close courtroom proceedings?

Silent Sam January Trail
Jonathan Fitzgerald Fuller exits Courtroom 4 at the Orange County Courthouse in Hillsborough on Friday, Jan. 18, 2019. Fuller was one of several people charged with misdemeanor rioting and misdemeanor defacing a public monument following the toppling of Silent Sam on Aug. 20, 2018.

In a county courtroom closed to the public, several cases were resolved Friday morning involving protesters that were arrested during a rally against Silent Sam on Sept. 8.

Judge Lunsford Long barred entry to everyone except law enforcement officials, court officials and defendants until 2 p.m. after a lunch break. Throughout the morning and early afternoon, protesters and media personnel waited in the halls outside the courtroom.

Of the people tried Friday, Ian Broadhead was found guilty of two misdemeanor charges, including resisting a public officer and violating the state’s anti-masking law while wearing a bandana during the rally. Broadhead received a prayer for judgement continued, meaning he cannot appeal the sentence, but will also not be punished for his crimes.

Julia Pulawski, 30, was found guilty of resisting a public officer and assaulting a UNC police officer. She is expected to appeal the verdict.

Jody Anderson, 21, was found not guilty of a misdemeanor charge of assault on a government officer. 

Numerous other cases were resolved with rulings varying from dropped charges or deferred prosecution arrangements. Several defendants received mandatory community service and court fees.

The question of Long’s decision to close the courtroom to the public still looms large. Amanda Martin, an adjunct professor at UNC, nodded to the right of open courts as underlined in the state’s constitution, stating “all courts shall be open.”

“The right of access to court proceedings is rooted in both the U.S. and N.C. constitutions,” she said in an email.

Martin also highlighted the importance of open courts for citizens to know what goes on in a courtroom. She mentioned what Chief Justice Warren E. Burger said in Richmond Newspapers Inc. v. Virginia that dealt with the right to open courts. 

“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing,” Burger said in the case.

Jonathan Jones, a lawyer and director of the N.C. Open Government Coalition, supported the constitutional right to open courtrooms.

“That is both the public’s right to be there under the First Amendment, largely through the press, and it’s also the defendant’s right to a fair trial has to be protected by a public proceeding,” he said.

However, Jones said a judge can close a court to the public. If the judge feels a substantial right of one of the parties involved in a trial is threatened by an open courtroom, a process exists to bar entry by the public.

“The U.S. Supreme Court has made it difficult, but not impossible, to close a courtroom to the public,” he said. “But I don’t know whether or not Judge Long did any of those things on Friday.”

In the late morning, a note was passed to the judge by several reporters asking Long to suspend the trial until a lawyer could be present to determine the legality of his decision to bar entry of the media. 

At the beginning of a lunch recess, a court official emerged to inform the crowd that several media personnel and 10 protesters would be allowed to watch the court proceedings. He also explained that Long did not originally want spectators in the courtroom because of how small it was, also citing the fire marshal’s limit on maximum seating.

“Unfortunately, there’s not enough room — it’s a really small courtroom,” he said. “I wish I could let everyone in, but it’s not my call.”

After the judge allowed the 10 protesters and several journalists to enter for the afternoon's proceedings, there were still vacant seats on the courtroom benches.

Jones said he was skeptical of the judge’s reason to close the court, citing Presley v. Georgia, a case dealing with courtroom closures and public access to juror selections from 2010 that reached the U.S. Supreme Court. He paraphrased the dissent of Justice Leah Sears after the Georgia Supreme Court ruled against Presley.

“A courtroom that’s too small to hold the public is too small to hold the constitution,” Jones said. “Lack of space would not be an adequate reason to prevent people from coming into the courtroom.”

@petrucci_daniel 

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